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[2001] VCAT 2402
respondent. Application refused. Under section 39, the Tribunal determined not to make a declaration. Costs reserved.
The Tribunal held that a planning Panel had to report the findings it chose to make, but did not have to make a separate finding on every argument or item of evidence. The Applicants' complaint that the Panel had not specifically resolved each point about flood modelling was not a procedural defect that section 39 allowed the Tribunal to review. In any event, the Tribunal considered that the Panel had addressed the submissions, considered their evidence, and accepted expert evidence supporting Melbourne Water's method. The application was refused.
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In First Jodrian Pty Ltd v Bayside CC [2001] VCAT 2402, First Jodrian Pty Ltd and Mrs H L Pitt sought a declaration under section 39 of the Planning and Environment Act 1987 (Vic). They alleged that a Panel had failed to make and report findings on specific parts of their objections to Amendment C1 of the Bayside Planning Scheme.
4 cited instruments linked from this judgment.
Amendment C1 proposed a Special Building Overlay (SBO) for land identified by Melbourne Water as subject to overland flows in a 1-in-100-year flood event. The amendment would introduce the SBO and a schedule, and map affected land. A permit would be required for specified building and works, with applications referred to the relevant Floodplain Management Authority [3]-[7]. The Applicants' properties at 21 and 23 Meek Street, Brighton, were included on the proposed overlay map [4].
The Applicants' case rested on a conflict they asserted between Melbourne Water's modelled flood levels and observed experience in Meek Street. Their written submission referred to surveyed site levels, the history of water at the properties, and declarations from people familiar with local conditions [9]. Among other things, they argued that predicted levels for 1-in-20 and 1-in-50-year events did not match their account of historical flooding, and that the modelling method should not be relied on as the basis for mapping those properties.
The Panel summarised the submissions about flood data and mapping. It recorded disagreement with Melbourne Water's technical assessment, objections that the figures were theoretical and untested against historical events, claims of no previous flooding, and concerns about map accuracy [18]. It also considered Mr Pitt's material, including observations, survey information and statutory declarations [20]-[21]. The Panel accepted the personal observations as genuine records, but also considered reports from GHD and Egis Consulting. Its conclusion was that Melbourne Water's modelling method was appropriate, relying on evidence from Melbourne Water and the GHD peer review [22]-[23].
The Applicants did not allege that they had been denied an opportunity to be heard, and accepted that the Panel had considered their submission [15], [30]. Their narrower complaint was that the Panel had not made findings on particular issues, including whether the predicted flood levels had been established and whether the modelling was valid when compared with the observed history.
The Tribunal, constituted by Deputy President Richard C Horsfall and Member Jeanette G Rickards, refused the application. It determined not to make a declaration under section 39 and reserved costs.
The central question was the scope of section 25(1), which said: “The panel must report its findings to the planning authority” [14]. The Applicants argued that this required findings on all submissions referred to the Panel, and that a finding should be reasoned and address the substance of the submission [24]. The Respondents argued that the provision required the Panel to report findings it had made, not to make findings on every evidentiary or subsidiary issue [26].
The Tribunal focused on the statutory words. Section 25(1) did not expressly say that a Panel must make findings. Nor did the provisions governing Panel reports require a Panel to give reasons, set out findings on every material question of fact, or identify the evidence supporting each finding [36]-[44]. The Tribunal considered these features relevant to its construction of the provision.
A key authority was Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The Tribunal agreed that the reasoning in Yusuf applied to the question before it [43]. It relied on the distinction between a statutory obligation to report findings that a decision-maker made and an obligation to make additional findings on every matter someone else regards as material. On the Tribunal's construction, the Panel itself decided what it considered material or necessary to determine and report [40]-[46]. The Tribunal therefore concluded that section 25 imposed no express or implied duty to make a finding on every factual, legal or submission point [46]-[47].
That did not mean a Panel could ignore the statutory obligation to consider submissions. Rather, the Tribunal treated the question of whether the Panel had considered the submission as distinct from whether it had separately resolved each argument within it. The Applicants conceded consideration and an opportunity to be heard [15], [30]. The Panel had grouped related issues and addressed them overall. The Tribunal regarded that approach as appropriate [48].
The Tribunal also addressed section 39. That section allowed a person substantially or materially affected by a failure to comply with specified statutory provisions, in relation to an amendment not yet approved, to refer the matter to the Tribunal [33]-[34]. The Tribunal considered the statutory heading, “Defects in procedure”, and the legislative history described by the Council. The earlier, broader review provisions in section 150 had been repealed; section 39 was not a general merits-review power over Panel recommendations [49]-[57]. The asserted omission of findings was, in the Tribunal's characterisation, a challenge to the substance of the Panel's recommendation, not a procedural defect of the kind section 39 addressed [57].
There was also a factual reason the claim did not succeed. The Tribunal reviewed the Panel report and found that it had considered the Applicants' material, including the personal-observation evidence and the evidence about the properties [61]. The Panel had considered expert material and accepted Melbourne Water's approach. The Tribunal agreed that the Panel could take account of the fact that the Applicants had not produced expert or technical evidence contradicting the modelling evidence [62]. It concluded that the Panel had addressed the issues, made findings it considered material and relevant, and recommended on that basis [63].
The judgment describes the law as it applied to the statutory provisions before the Tribunal in 2001. It does not provide a comprehensive account of all prior law on Panel duties, nor does it establish a rule that all statutory panels in every context have no duty to make findings. Its conclusion is tied to section 25 of the Victorian Act and the absence of language requiring findings on every issue.
Before this decision, the Applicants' proposed construction treated the Panel's duties to consider submissions, provide a hearing opportunity and report findings as requiring a separate, reasoned determination of every submission or issue. The Tribunal rejected that construction. It read section 25(1) as a duty to report findings actually made, not a duty to make an exhaustive set of findings [36], [46].
The Tribunal's approach drew on Yusuf, which concerned a different statutory setting. The Tribunal considered the reasoning about the scope of a statutory obligation to record findings applicable by analogy, particularly where the governing statute did not require a comprehensive statement of reasons or fact-findings [39]-[45]. The decision therefore links statutory wording to reviewability: the scope of an enforceable duty depends on what the relevant legislation expressly or impliedly requires.
The judgment also delineates section 39 from merits review. The Tribunal viewed section 39 as permitting review of qualifying failures to comply with procedural and related statutory requirements, not as giving the Tribunal power to reassess a Panel's substantive recommendation or require it to make findings the Panel did not consider material [55]-[57]. It related this limit to the repeal of the former section 150 provisions, which had enabled broader review of planning decisions [51]-[54].
The decision does not establish what later amendments to the Act may have changed, or whether later courts or tribunals have adopted, limited or reconsidered its interpretation. The provided judgment contains no later treatment.
At [36], the Tribunal noted that section 25(1) “does not contain an express obligation to make a finding.” In plain English, the statutory command to report findings was not the same as a command to make a finding on every argument.
At [43], the Tribunal stated that it agreed that the reasoning in Yusuf applied. The significance is that the Tribunal treated the statutory text and the limits of review as important, rather than allowing a reviewing body to impose its own view of which factual issues the original decision-maker ought to have addressed.
At [46], the Tribunal stated: “Section 25 does not impose an obligation, express or implied, on a Panel to make a finding. A Panel's obligation is to report the findings it does make.” This is the central proposition in the decision. The Tribunal added that a Panel determined what findings it should make and what was material, and that those matters were not reviewable under section 39(1).
At [47], it held that the Applicants had not established a breach of the provisions referred to in section 39. The application therefore failed not because the Tribunal independently resolved the competing flood predictions, but because the alleged failure did not amount to the statutory breach claimed.
At [57], the Tribunal said the complaint was “not a defect in procedure” within section 39. In plain English, the Applicants were asking the Tribunal to review the substance of the Panel's work by requiring particular findings, rather than identifying a procedural non-compliance covered by the section.
At [62], the Tribunal explained that flood modelling was a technical issue and that the Panel had expert evidence before it, which it accepted in the absence of contrary expert evidence from the Applicants. This was part of the Tribunal's assessment of how the Panel handled the actual submission, rather than a general rule that personal observations are irrelevant.
The decision is most relevant to statutory processes where legislation requires a panel or decision-maker to “report” findings, but does not expressly require it to make findings on every submission, fact or argument. It may be relevant where a party alleges that a panel's report is defective because it does not separately resolve each point raised, while accepting that the panel considered the submission and provided an opportunity to be heard.
It is also relevant where a party seeks review under a provision framed around procedural defects, but the substance of the complaint is that the panel reached, or failed to explain, a conclusion on the merits. The judgment cautions that the existence of a review power does not necessarily authorise a tribunal to require additional findings or revisit a recommendation.
The factual context here matters. The Panel's report summarised the general flood-related issues, referred specifically to the Applicants' evidence, considered expert reports, and stated a conclusion on the modelling approach [18]-[23], [61]-[63]. The Applicants conceded that their submission had been considered and that they had a hearing opportunity [15], [30]. The case should not be read as deciding the consequences of a panel wholly failing to consider a referred submission, denying a hearing, or omitting a report required by a different statutory provision. Those circumstances were not the Tribunal's factual basis for decision.
Nor does the decision determine the accuracy of Melbourne Water's flood modelling as an independent technical matter. It records the Panel's conclusion and the Tribunal's view that the Panel could accept the expert material before it [23], [62]. Its legal focus was the statutory duty to make and report findings and the reach of section 39.
The provided judgment identifies no later court or tribunal decisions treating First Jodrian as applied, followed, distinguished or otherwise considered. The case text gives a last-updated date of 22 January 2002, but that date is not evidence of subsequent judicial treatment.
The judgment itself discusses several authorities. It applies Yusuf at [43] to the statutory question about whether a duty to report findings also entails a duty to make findings on every issue. It refers to Xu at [42] through the reasoning discussed in Yusuf. It mentions Weinberg v Raynor & MMBW as part of the Applicants' submissions about evidentiary weight [24], and discusses Porchester Nominees Pty Ltd v Renfrey and Others in its account of the history of section 150 and review of planning decisions [52]. These references concern the reasoning and arguments available to the Tribunal in this case; they do not establish later treatment of First Jodrian.
Accordingly, no claim about the decision's current precedential status or later judicial reception can be made from the judgment text provided.
The judgment leaves open how the same reasoning would apply where the statutory text expressly requires findings on specified questions, requires written reasons, or establishes a duty to deal with particular matters. The Tribunal's decision relied on the absence of such requirements in the provisions it considered [38]-[44].
It also leaves open what would count as a failure to “consider” a submission under the statutory process. The Applicants conceded that their submission had been considered, so the Tribunal did not need to decide what evidence would establish a complete failure of consideration [30]. The judgment distinguishes consideration from a duty to make a separate finding on every point, but does not define the minimum process necessary to satisfy the former obligation in materially different circumstances.
Another question is how section 39 applies to alleged procedural failures other than the omission claimed here. The Tribunal decided that this complaint was not procedural because it concerned the substance of the recommendation [55]-[57]. It did not give a comprehensive catalogue of reviewable and non-reviewable failures.
Finally, the decision does not independently determine the evidentiary or technical merits of the flood predictions. It records that the Panel accepted expert evidence and that the Tribunal agreed the Panel could do so in the absence of contrary technical evidence [62]. Whether different evidence, different statutory requirements, or a materially different Panel report would produce a different analysis remains outside the decision.
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Application under Section 39 Planning and Environment Act 1987, defects in procedure of Panel, Panel's obligation to consider submissions on planning scheme amendment, whether Panel has a duty make findings on submissions, Tribunal's power to review failure to make a finding, failure to make a finding not a procedural defect,
1. The application is refused. Pursuant to Section 39 of the Planning and Environment Act 1987 the Tribunal determines not to make a declaration.
Mr I McP Pitt of Best Hooper, Solicitors, for First Jodrian Pty Ltd.
Mr E Stokans of Russell Kennedy, Lawyers, for Bayside City Council.
Mr R Osborn QC and Ms Gail Hubble of Counsel instructed by Mr J Smithers of Victorian Government Solicitor's Office for the Minister for Planning.
Ms N Bannister of Blake Dawson Waldron, Lawyers, for Melbourne Water.
1. This matter is a referral on behalf of First Jodrian Pty Ltd and Mrs H L Pitt ("the Applicants") to the Tribunal pursuant to Section 39(1) of the Planning and Environment Act 1987 ("the Act") for its determination with regard to the Applicants' claim that a Panel constituted by Mr D Rae and Mr R Rooke failed to make and report certain findings in respect of the Applicants' submissions in respect of Amendment C1 to the Bayside Planning Scheme ("the Amendment").
2. The Panel was appointed on 6 November 2000 to consider and hear submissions in relation to the Amendment which was the introduction of a Special Building Overlay relating to flood levels.
3. Following a request from Melbourne Water, Bayside City Council ("the Council") prepared Amendment C1 to its Planning Scheme to change the Scheme by:
* Introducing the Special Building Overlay (Clause 44.05) into the scheme,
* Introducing Schedule 1 to the Special Building Overlay, to apply to land identified by Melbourne Water, as the Floodplain Management Authority, as being subject to overland flows in a 1 in 100 year flood.
* Introduce planning scheme maps to identify affected lands as described above.
* Insert references to the Special Building Overlay maps in the Schedule to Clause 51.
* Insert references to the Special Building Overlay (Clause 44.05) in the Table of Contents.
4. The subject properties are included in the Overlay map.
5. Under the Overlay at Clause 44.05-1 a permit would be required to construct a building or to construct or carry out works to subdivide land with some exceptions.
6. Applications for a permit under the Overlay would have to be referred to the relevant Floodplain Management Authority.
7. The decision guidelines included in the Overlay include a variety of issues relating to the flooding of the land.
8. The Applicant sought the following declarations:
"3.1 The Panel was required to report its findings on the submission made on behalf of First Jodrian Pty Ltd whether:
3.1.1 the predicted flood levels in Meek Street for a 1:100 year flood interval event, being the basis for land to be within the proposed Special Building Overlay, had been established; and
3.1.2 how the predicted flood levels in Meek Street for a 1:100 year flood interval event were appropriate when the same assessment for a 1:20 and 1:50 year flood interval event had not been experienced in Meek Street for a period of 80 years.
3.2 The Panel failed to make findings or to report findings on the submissions summarised in paragraphs 3.1.1 and 3.1.2.
3.3 The Minister must not approve that part of the Amendment relating to any property fronting Meek Street, Brighton unless a Panel differently constituted has considered and reported on the said submission by First Jodrian Pty Ltd after considering the evidence led on behalf of the Planning Authority and Melbourne Water Corporation in respect of that submission at the hearings held on 13 and 14 February 2001.
3.4 Such further or other declaration as to the Tribunal seems appropriate."
9. The particulars of the application set out the relevant parts of the written submission made by the Applicant to the Panel:
1.1.1 These submissions are made on behalf of Mrs H L Pitt the owner and, with her family, the occupier of land situate at and known as 21 Meek Street, Brighton and First Jodrian Pty Ltd the registered proprietor of the land known as 23 Meek Street, Brighton.
1.1.2 Mrs H L Pitt has resided, with her family, at 21 Meek Street, Brighton since 1972.
1.2.1 There was constructed on the land at 21 Meek Street, Brighton a new residence in 1995 pursuant to a building permit granted by the City of Bayside [the Council], after due inquiry, including inquiries to the Council and to Melbourne Water in relation to any constraints on the design of the new residence on that location.
1.2.2 By letter dated 27 June 2000 Melbourne Water advised that, inter alia:
"The proposed Special Building Overlay is not based on a known or historical flood event. It is based upon the overland flows that will result from a storm event that occurs, on average, once every 100 years. These overland flow paths were identified to best practice computer modelling, detailed in Melbourne Water's earlier correspondence of 27 March 2000.
Prior to 1975 in the introduction of the 1:100 year design standards, drainage infrastructure was generally designed in a 1: 5 year storm capacity. The Meek Street Main Drain, which is located in Meek Street adjacent to the above properties is a large pipe, with a diameter of 2250mm, however, these properties are situated at the bottom of a large (547 hectare), urbanised catchment. The drain, constructed in 1912 in accordance with standards of the time, has a capacity in excess of 1:5 year storm. In the event of a 1:100 year storm, the capacity of the drain would be exceeded and overland flows occur along natural valleys ...
The risk of flooding from high intensity, low frequency events is not attributable to any recent increase in residential densities which may have occurred in Bayside. The occurrence of overland flows is due primarily to the limited capacity of the drainage infrastructure, which was only designed and constructed in accordance with the standards of the time. Although incremental developments throughout the catchment may contribute to increases in run-off, this would only impact marginally upon what is an existing risk of inundation from large storm events.
The impacts of redevelopment on increases urban run-off is more significant for lesser storm events ... "
1.2.3 23 Meek Street has been owned by First Jodrian Pty Ltd since 1978 and has since 1985 been developed as a concrete-lined mod-grass tennis court with a drainage sump in its south-west corner having an invert level of 4.525m to Australian Height Datum [AHD] as surveyed by David McLennan and Associates Pty Ltd on 19 May 2000.
1.2.4 Relevant levels, to AHD as surveyed by Mr McLennan on 19 May 2000, at 21, Meek Street, Brighton include the south-west corner of the property (being the lowest level of the combined properties 23-21 Meek Street at the Meek Street frontage) of 5.02 metres at the footpath and 4.865 metres at top of kerb.
1.2.5 The level of the driveway at the garage door is 5.16 metres and the ground floor level of the dwelling is 5.235 metres.
1.2.6 The grille to the Meek Street main drain on the south side of Meek Street opposite the driveway to 21 Meek Street has a surveyed height of 4.985 metres.
1.2.7 Since 1972 stormwaters in Meek Street outside 21-23 Meek Street have, on very rare occasions, been observed flowing out of the grille to the Meek Street main drain opposite the driveway of 21 Meek Street but at no time have exceeded the top of kerb i.e. whilst water has been observed, on those occasions, coming out of the grille at 4.985m it has flowed onto the carriageway and gutters and not exceeded a height of 4.865 metres opposite 21 Meek Street since 1972.
1.2.8 The dwelling on the site at 21 Meek Street, Brighton in 1972 had a split floor level and the floor level of the dwelling constructed in 1995 is at the lower of those two levels.
1.2.9 In 1972 there was no evidence of any inundation on the lower level of the dwelling then existing.
1.2.10 In the approximately 15 years since the construction of the tennis court at 23 Meek Street there has been no occurrence of back draining from the sump in its south-west corner.
1.2.11 At 21 Meek Street, Brighton the personal knowledge evidence does not extend to 50 years (although the vendor's advice goes back to beyond that period).
1.2.12 Taking it from provable personal knowledge over almost a 30 year period Melbourne Water assert in a 1:20 year event that the flood level at 21 Meek Street is 5.3 metres whereas stormwaters have not been higher than top of kerb at 4.865 metres, a discrepancy of 0.44 metres.
1.2.13 It is submitted that in a 30 year period there is a probability that a 1:50 year event will have occurred. At the predictions for a 1:50 year event there is a discrepancy between actual experience and projection of 0.64 metres.
1.3 Insofar as it is known to the submitter the next oldest resident in Meek Street is the owner and occupier of 36 on the south side proximate to the intersection with James Street who asserts that since 1956 stormwater in Meek Street has not exceeded top of kerb.
1.4.1 Provided to the Council in its capacity as the relevant Planning Authority and, it is understood, made available to Melbourne Water [the Proponent] is a copy of a statutory declaration of Ernest Norman Evans declared on 24 July 2000 that between 1923 and the mid 1980s stormwater from the gutters in Meek Street never rose to the height of the floor of the garage on the south-west corner of New Street and Meek Street, Brighton.
1.4.2 Now made available to the Panel is a copy of a William Ernest Evans, who is the son of William Ernest Evans who has declared that between 1967 and 31 January 2001 stormwater from the gutters in Meek Street have never risen floor level of the garage.
1.4.3 On 20 June 2000 Mr David McLennan surveyed the levels of the garage on the south-west corner of New Street and Meek Street to AHD, determining that the invert of kerb along the sectant at the corner of the property at the intersection of Meek Street and New Street was 5.79 metres and the eastern doorway of the workshop in Meek Street is 5.77 metres which, from photographs produced to the Panel, represents the floor level of the garage as it has been for 80 years. The footpath level at the north-west corner of the garage is surveyed at 5.71 metres and the invert of kerb opposite that point is 5.47 metres.
1.4.4 By letter dated 1 May 2000 Melbourne Water advised that the flood levels to AHD at the north-west corner of Meek Street and New Street (i.e. outside the Evans Garage) were as follows:
1.4.5 By comparison with the survey levels at Evans Motor Garage, Melbourne Water contend that the garage floor has been inundated in a 1:20 year event has been between 0.23 metres (6.0 minus 5.77) whereas in over 80 years the firsthand personal knowledge evidence is that levels of inundation in the Meek Street gutters has not flooded the floor of the garage.
1.4.6 The statistical probability of a 1:20 storm event not occurring in 80 years is 1.55.
1.4.7 The best evidence can also be compared to the 1:50 year event which at the garage, according to the assessment of Melbourne Water, is the same as for a 1:100 year event where it is contended by Melbourne Water that the flood level is 6.2m however the floor of the workshop has not been inundated at all over 80 years, a variation at the eastern doorway of 0.43 metres.
1.4.8 Whilst, as contended in the evidence relied upon by Melbourne Water, it is possible that a 1: 100 year event has not experienced since of the Meek Street drain was constructed in 1912 it is highly unlikely that a 1:50 year event has not been experienced.
1.5.1 Whilst it may suit those of the engineering fraternity who have used the modelling procedure relied upon to underpin Amendment Cl to describe actual evidence of real experience in a pejorative sense as "anecdotal" it is submitted that evidence of past events when compared with hypothetical calculations for the same period, with no material change in circumstances in the relevant catchment (is) the best available evidence.
3.1 It is submitted that whilst, in the absence of any better evidence, adoption of industry standards as a basis for when new development should require a detailed investigation as to whether there are any relevant risks of inundation may be an acceptable basis for statutory control, where there exists actual evidence that those predictions are wrong they should not be relied upon as a basis for a Planning Scheme Map indicating that properties on either side of Meek Street are subject to inundation and even the more so there should be no endorsement of or any use permitted to be made of the levels of inundation currently contended for by Melbourne Water.
3.2 In respect of Meek Street it cannot be said on the evidence that Melbourne Water has verified the land affected by flooding as required by Clause 15.02 in the State Planning Policy Framework.
3.4 At the best, it is contended, in respect of Meek Street the evidence does not justify the specification of an SBO beyond the road reserve which would effectively limit its operation in Meek Street to works of the Planning Authority in its Local Government capacity and other infrastructure providers."
10. Mr Pitt at the Panel hearing also made an opening submission on behalf of the Applicant which was produced in writing and forwarded to the Panel by letter dated 16 December 2001, a copy of which was provided to the Tribunal.
11. Mr Pitt's submission conveniently summarised the Statutory Framework as follows:
2.1 Pursuant to Section 8(3) of the Act a Municipal Council may prepare Amendments to the State standard provisions and Local provisions of a Planning Scheme in force in its Municipal District.
2.3 The statutory duty to prepare Amendments to a Planning Scheme for which it is a Planning Authority is cast upon the Municipal Council in respect of its Municipal District by Section 12(1)(d).
2.4 The requirements to give notice of an Amendment is contained in Section 19 of the Act which must, inter alia, set a date by which submissions are to be made to the Planning Authority (19(4)(b)).
2.5 Pursuant to Section 21(1) any person may make a submission to the Planning Authority about an Amendment for which notice has been given under Section 19.
2.6 Pursuant to Section 22(1) a Planning Authority must consider all submissions made on or before the date set out in the notice.
2.7 Pursuant to Section 23(1) after considering a submission which requests a change to the Amendment, the Planning Authority has three options, one of which is to refer the submission to a Panel appointed under Part 8.
2.8 Pursuant to Section 24 the Panel must consider all submissions referred to it and give a reasonable opportunity to be heard to, inter alia, any person who has made a submission referred to it and to the Planning Authority.
2.9 Pursuant to Section 25(1) the Panel must report its findings to the Planning Authority.
2.10 Pursuant to Section 153 the Minister must appoint a Panel to consider submissions to be referred to a Panel under the Act.
2.11 Pursuant to Section 161(1) in hearing submissions a Panel is, inter alia, bound by the rules of natural justice.
2.12 Pursuant to Section 163 a Panel may report or make recommendations on a submission without hearing the person who made the submission if the person is not present or represented at the time and place appointed for hearing of the submission (underlining added for emphasis).
2.13 Pursuant to Section 164 a Panel may consider two or more submissions together if the submissions concern the same land or the same or a related matter.
2.14 Pursuant to Section 168 a Panel may take into account any matter it thinks relevant in making its report and recommendations.
2.15 Pursuant to Section 27 a Planning Authority must consider the Panel's report before deciding on whether or not to adopt the Amendment.
2.16 Pursuant to Section 29 after complying with Divisions 1 and 2 in respect of an Amendment or any part of it the Planning Authority may adopt the Amendment or that part with or without changes.
2.17 Pursuant to Section 31 a Municipal Council acting as a Planning Authority must submit an adopted Amendment to the Minister together with the prescribed information.
2.18 The information is prescribed by Regulation 12 of the Planning and Environment Regulations 1998 which includes copies of any submissions and the report of the Panel.
2.19 Pursuant to Section 35 the Minister may approve an Amendment.
2.20 Pursuant to Section 37 the Amendment comes into operation when Notice of Approval is published in the Government Gazette or on any later day or days specified in that notice.
2.21 Pursuant to Section 39(1) a person who is substantially or materially affected by a failure of, inter alia, a Panel to comply with Division 1, 2 or 3 of Part 3 of the Act or of Part 8 in relation to an Amendment which has not been approved may refer the matter to the Tribunal for its determination.
12. The Respondents referred to other provisions in Part 8 of the Act, and in particular the provisions in Division 2 relating to hearings (Sections 157 to 170) and in particular Section 166.
13. The central issue in this referral is the extent of any obligation of a Panel to make findings pursuant to Section 25(1) of the Act.
14. Section 25 reads as follows:
(1) The panel must report its findings to the planning authority.
(2) In its report, the panel may make any recommendation it thinks fit.
(3) A panel must not make a recommendation that an amendment be adopted with changes to the terms of any State standard provision to be included in the planning scheme.
(4) Despite sub-section (3), a panel may make a recommendation that an amendment provide for a State standard provision to be included in or deleted from the planning scheme."
15. The Applicants concede that the Panel did consider their submissions and gave a reasonable opportunity to their representative to be heard. Mr Pitt's contention is that the Panel did not
* address the specific basis for the flood levels proposed for the Special Building Overlay applicable to Meek Street,
* nor make a finding on the validity of the methodology to produce an accurate result for ascertaining the flood level under the Special Building Overlay in relation to properties subject to inundation in Meek Street, Brighton.
16. Essentially Mr Pitt asserts that the material submitted by him should have convinced the Panel to make a finding that the Special Building Overlay should not affect the subject land and make a recommendation accordingly.
18. Clause 6 of the Panel Report considered the issues raised by submittors. In Clause 3 the Panel summarised the public exhibition process and the submissions received, and at Clause 3.5.1 it summarised the issues relating to flood data and mapping as follows:
"* Disagreement with Melbourne Water's technical basis for assessment and inclusion in SBO.
* The amendment is based upon theoretical rainfall figures which have not been tested against actual historical rainfall figures.
* No need for SBO which is based on a 1% chance of a flood.
* The land has no previous evidence of flooding over a long period.
19. Clause 4 of the Report describes the Panel process and states that the Applicants were represented by Mr Pitt. Clause 5 dealt with a consideration of general issues and conclusions and Clause 5.1 dealt with the use of the 1% floodplain as a basis of policy.
20. Clause 6 discussed the issues raised by these submittors and grouped the issues as quoted above. On page 25 there is a specific reference to Mr Pitt's research in relation to 21 - 23 Meek Street and other properties, the evidence based on both personal experience over 30 years and on work carried out during the construction in 1995 of a new house at 21 Meek Street and on the construction in 1985 of a tennis court at 23 Meek Street, the surveys of David McLelland & Associates, the levels of the driveway of the garage floor and the statutory declarations from Ernest Evans and William Evans.
21. In relation to the factual evidence presented by the submittors the Panel noted at page 24,
"The Panel does not intend to set out in detail the evidence presented by the many individual submittors on this issue. The Panel accepts this evidence on its face value as a genuine record of personal observation and includes a number of typical examples to indicate their quality and nature of the evidence."
and went on to specifically consider Mr Pitt's material.
22. The Panel then considered the reports of Mr Young of GHD and Mr Sheehan of Egis Consulting, who took the view that the absence of evidence of any flooding at the properties concerned did not negate the model, and that there was no evidence that the flood events which had taken place were 1% AEP floods and thus they may have been events of a lower intensity.
23. The conclusion (whether it be a finding or a recommendation) of the Panel on the submissions was as follows:
"Despite the considerable argument by submittors that Melbourne Water's modelling approach was inappropriate and inaccurate, the Panel believes it significant that no submittor brought forward any technical witness to challenge those processes. The Panel is satisfied from the evidence given by Melbourne Water and the peer review carried out by GHD that the method adopted by Melbourne Water is an appropriate approach to the issue."
24. Relevant parts of the Applicants' submissions were:
"4.3.1 .........on the proper construction of Sections 23, 24 and 25, the report and findings must be in respect of the submissions referred to it pursuant to Section 23(1)(b) and must be a report and findings after its consideration of all submissions (Section 24) after having given a reasonable opportunity to be heard to any person who has made a submission referred to it.
4..3.2 Such a submission must be about an Amendment (Section 21(1)).
4.3.3 Accordingly it is submitted that the obligations of a Panel are to report and make findings on all submissions referred to it, which are submissions about an Amendment.
4.3.4 Therefore whilst the recommendations would be about the recommended fate of an Amendment, the report and findings are to be in respect of each of the submissions referred to it.
4.4.1 It is submitted that given the context and the purpose of the subject provisions a "report" is to be a statement of the submission argued, responses and of the determination, analogous to a Law Report, including the reasons for its decision in respect of that submission.
4.4.2 Similarly it is submitted that in this context a "finding" in respect of a submission requires more than a statement of a conclusion but again embodies the concept of a reasoned decision. [References were made to Dictionary definitions in support.]
4.4.3 The letter to the Panel of 16 February ......directs the Panel's attention to the need to make a decision in respect of the issues raised in the First Jodrian Pty Ltd submission.
4.4.4 It is submitted that the Panel's report must, in respect of the submission made about the Amendment......... by First Jodrian Pty Ltd, address the specific basis for the alleged flood levels in Meek Street..........
4.4.5 It is submitted that the submission made on behalf of First Jodrian Pty Ltd and amplified in the written submission presented to the Panel and the associated documents......... together with the statutory declaration of Ernest Norman Evans .........required a finding on the validity of the methodology applied to produce an accurate result of properties subject to inundation in Meek Street, Brighton.
4.5.4 It is submitted that the Panel has addressed the contention raised by the Council and the Melbourne Water Corporation and their respective witnesses that there can be no certainty that a 1% AEP flood has occurred in Meek Street over the period addressed in the evidence, but has failed to address the specific issue that the methodology employed by the Melbourne Water Corporation when applied to derive results for 1:20 and 1:50 year events produced results quite inconsistent with the evidence of actual experience and failed to address the statistical probability of a 1:20 or 1:50 year event having occurred over the period in respect of which there was first-hand evidence put before the Panel.
4.5.5 It is submitted that whilst submissions before the Panel can be taken as evidence, the evidence before the Panel must be assessed having regard to its evidentiary weight. (Weinberg v Raynor & MMBW [1971] VicRp 82; (1970) 22 LGRA 130 at 146/7.)
5.5 It is submitted that the Panel has failed to make a finding in respect of the evidence recited at pages 25 and 26 concerning the outcome of the modelling undertaken by Melbourne Water Corporation for Meek Street on a 1:20 and 1:50 year basis, being the express subject matter of the submission before it, or to report on why the same methodology was a proper basis to uphold the submissions made on behalf of the Council and Melbourne Water Corporation insofar as they related to Meek Street that the flood prone nature of land is an existing fact identified by the Special Building Overlay."
25. Separate submissions were made on behalf of the Minister for Planning, the Council as the planning authority and Melbourne Water Corporation.
26. Whilst diverse, they had much common ground. Clause 7 of Mr Osborn QC's submission on behalf of the Minister summarises his case as follows:
"In summary the Applicants''s case is misconceived for the following reasons:
(a) Section 25(1) only requires the Panel to report the findings it actually makes. It does not require the Panel to make findings. The Panel has reported its findings.
(b) The requirement to "consider" submissions under section 24 relates to submissions referred to a Panel under Section 23. It is a flexible requirement. It does not comprise a duty to make findings as to every submission on the evidence made in support of the submitter's case. The report demonstrates the Panel considered the Applicants's submissions.
(c) Findings may be limited to those issues of fact and law which the Panel itself finds relevant to the appropriateness of the Amendment after having considered the submissions. The Panel stated the principles relevant to the appropriateness of the amendment and made findings on the material presented to it in the light of such principles.
(d) A finding may be in the nature of a determination. A "finding" is not necessarily accompanied by reasons or a detailed statement referring to the evidence or other material on which the findings are based. The Panel's conclusions constituted findings. It was not bound to set out its reasons as fully as it did, although detailing its reasons was clearly consistent with its statutory function.
(e) A finding may deal with ultimate facts rather than subsidiary issues of evidence. The Panel expressed clear conclusions on the ultimate facts.
(f) It is for the planning authority not the Tribunal to assess the adequacy of a Panel's findings. The Panel does not determine the fate of an amendment. The planning authority has before it the amendment and supporting material, the submissions and the Panel's report including findings and recommendations. The Panel's report does not conclude the fate of the submissions.
(g) Section 39 is intended to enable defects in procedure to be reviewed before the Tribunal. The Applicants's argument turns on an alleged failure to make findings required by law. Such a failure is not procedural but substantial.
(h) The Panel clearly rejected the Applicants's basic submission which was that the alleged basis for Amendment C1 is fundamentally flawed. It was open for the Panel to do so for the reasons it stated. Conversely the Applicants' would face a hopeless task in seeking to demonstrate that the Panel was bound to accept such submissions."
27. Mr Stokan's submission on behalf of the Council:
* Explored the distinction between strategic and statutory planning
* Examined the history of the legislative limitation of the power of the Tribunal to intervene in the strategic planning process with particular emphasis on the former Section 150 of the Act.
* Indicated policy reasons why the Tribunal should not interfere with the planning process and Panel procedures.
* Submitted that the Panel had addressed the Applicants' submission, and
* submitted that the Panel had complied with Section 24 and 25 of the Act.
28. Melbourne Water's submission was summarised in Clause 1.3 of Ms Bannister's submission to the Tribunal as follows:
(a) The Applicant has failed to establish that there was any failure of the Panel giving rise to a right of review pursuant to Section 39 of the Act.
(b) The Panel is obliged to consider all submissions before it and the Panel considered all submissions in the process of making its findings. Also, the Panel afforded concerned parties an opportunity to be heard by providing notice that a public hearing was scheduled and then holding this Hearing on 13, 14 and 21 February 2001. The Panel also gave Mr Pitt the opportunity to reduce his oral submission to writing and to provide it to the Panel after the hearing.
(c) The Panel is obliged to report its findings to the Planning Authority and the Panel discharged this obligation by reporting its findings to the Planning Authority in the Report of the Independent Panel ("the Report") dated May 2001. The Panel is not obliged to identify all relevant issues, nor is it obliged to make a finding of fact in relation to all issues raised. However, it is evidence from the report that the Panel did, in fact, consider and report on all relevant issues."
29. Submissions were made on behalf of all the parties. No evidence was called. We were not requested to make an inspection of the subject property nor did we consider it necessary to do so.
30. The Applicants concede that the Panel did consider their submission.
31. There was argument as to what constituted the submission. Mr Osborn QC argued by reference to the analysis we refer to below, of the distinction between material facts which must be pleaded on the one hand and the evidence to be adduced to prove the material facts which need not be pleaded on the other. He submitted that all the particular matters set out in Mr Pitt's submission need not be considered, and that if there was an obligation to make a finding, the obligation only extended to the "material" submission.
32. However for the purposes of this decision we do not make any distinction of this nature in respect of the matters raised by the Applicants' submission although the distinction, as we later discuss, has relevance in relation to the question whether there is an obligation to make findings.
33. The power of the Tribunal in this matter arises under Section 39 of the Act which reads as follows:
(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.
(2) In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are--
(a) the person who referred the matter to the Tribunal; and
(3) If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.
(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following--
(a) make any declaration that it considers appropriate;
(i) the planning authority must not adopt the amendment or a specified part of the amendment; or
(ii) the Minister must not approve the amendment or a specified part of the amendment--
unless the Minister, planning authority or a panel takes action specified by the Tribunal.
(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.
(7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.
(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved."
34. The Applicant must establish that there has been "a failure ....... a Panel to comply with Division 1 or 2 of this Division or Part 8 in relation to an amendment which has not been approved".
35. All parties agreed that the threshold legal issue is whether Section 25(1) of the Act required the Panel to make specific findings on each issue raised in the Applicants' submissions.
36. Section 25(1) does not contain an express obligation to make a finding. The obligation expressed is to report its findings.
37. Sub-sections (2), (3) and (4) refer to recommendations to the Minister and Section 25A contains a power to make recommendations, which appears to be discretionary although it would be unlikely that a Panel would refuse to make a recommendation of any kind, whether under Section 25(2) or 25A(1).
38. Sections 24, 25 and 25A of the Act and also the provisions in Part 8 Division 2 Sections 159 - 170 do not contain any provisions similar to those contained in Section 117(5) of the Victorian Civil and Administrative Tribunal Act 1998 which reads as follows:
"If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact."
39. Nor do the provisions in the Act relating to Panels contain any provisions like those referred to by Mr Osborn QC in Section 430(1) of the Migration Act discussed by the High Court in Minister of Immigration and Multi Cultural Affairs v Yusef [2001] HCA 30; [2000] 180 ALR 1 which requires that Tribunal (inter alia):
"Set out the findings of any material questions of fact."
40. In that decision, Justices McHugh, Gummow and Haine at paragraphs 63, 67 and 68 made the following comments:
"[63] It is appropriate for a court to speak of a decision-maker being "obliged", or having a "duty", to make findings of fact only if that obligation or duty can be enforced in the courts. It is necessary, therefore, to examine the content of the asserted duty and to consider whether established processes of judicial review of administrative action provide a remedy to persons affected by a decision if there has not been a finding on a material matter of fact. That examination must begin from the premise that "[t]o expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government."
As was rightly observed in the joint judgment in Singh, this section [Section 430] calls for a recording of matters that are matters of fact. In particular, s430(1)(c) requires the tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
[68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s430(1)(c) obliges the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision."
41. We were also referred by Mr Osborn QC in his submission to the judgement of Callinan J in Yusef to the distinctions between:
(a) "the ultimate facts in issue" on the one hand and "the facts adduced to prove or disapprove that ultimate fact" on the other, and
(b) "material facts" which must be pleaded on the one and "the evidence by which those facts are to be proved" on the other.
42. We note that at page 53 of Yusef, Justice Callinan adopted the reasoning of the Federal Court in the case of Xu (1999) 168 ALR at 631 - 3 where Justices Whitlam and Gyles in considering these distinctions said:
"Applying that analysis to the present section would suggest that (c) [of Section 430(1) of the Migration Act] refers to those findings of fact which are necessary to the decision, and, in that sense, ultimate facts, and (d) refers to that which proves the necessary ultimate fact. That analysis is confirmed, and, in our opinion, required when it is recognised that s430 relates to administrative decisions made on the merits pursuant to a statute. Materiality in s430 must be materiality to the decision to which it applies. In other words, materiality as it is understood in administrative law. A statute may expressly or impliedly contain conditions which must either exist in fact or as to which the decision-maker must be satisfied before making the decision. A statutory provision may expressly or impliedly oblige the decision-maker to take certain facts into account when making the decision, or prohibit the decision-maker from taking certain facts into account when making the decision. These facts may either have to objectively exist or may depend upon the satisfaction of the decision-maker. Where a statute does not expressly or impliedly constrain the decision-maker, the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge. In those circumstances, a fact is material only if the decision-maker is seen to be by a judge. In those circumstances, a fact is material only if the decision-maker considers it so.
The consequence of this reasoning is that it is quite impossible to upset a decision because a decision-maker does not take into account a fact which an application proposes as material, but which is not made material by the Act. That being so, it would be truly anomalous to conclude that a material fact has been omitted from a statement of reasons where the Act does not make the fact material. The only conclusion open from such a omission is that the decision-maker did not consider the fact material. If a judge makes an assessment that an absent fact is material otherwise than by holding that the Act require the fact to be considered, then that plainly involves a merit review which the High Court have emphatically said should not happen."
43. We agree with Mr Osborn QC's submission that what was said by the High Court in Yusef in relation to Section 430 of the Migration Act applies in this matter.
44. That Section 25 does not require a Panel:
s to set out its findings on material questions of fact, nor
s to refer to the evidence on which it based its findings,
in our view supports the applicability to this matter of what is said in Yusef.
45. Likewise we accept Mr Stokans' submission that because a Panel does not make administrative or other decisions but merely recommendations and that there is no appeal from a Panel's recommendation, likewise reinforces the applicability to this matter of what is said in Yusef.
46. Accordingly our conclusion in relation to the Panel's obligation to make a finding is that:
* Section 25 does not impose an obligation, express or implied, on a Panel to make a finding. A Panel's obligation is to report the findings it does make.
* If a Panel does decide to make findings, the Panel determines what findings it should make and what is material, and those matters are not subject to review under Section 39(1).
* A failure to make a finding is not a breach of Section 25.
47. We do not consider that the Panel was under any obligation to make findings on each and every question of fact, law or submission raised in Mr Pitt's submissions or any of them. We conclude that the Applicants have failed to establish there is any breach of the provisions referred to in Section 39 and accordingly their application must fail.
48. Further we agree with the Respondents' submission that the Panel's grouping of a number of submissions and addressing the issues raised overall is an appropriate proceedure.
49. The heading of Section 39 reads "Defects in procedure".
50. In this context Mr Stokans' submissions as to the legislative history of Section 150 of the Act is relevant.
51. Sub-Sections 150(1), (2) & (3) of the Act were repealed in 1989. Those provisions entitled any person affected by a decision of or a failure to decide by a planning authority or responsible authority under this Act to refer that decision or failure to the AAT for review, and enable that Tribunal to review that decision or failure and direct the planning authority or Responsible Authority to take any action that the AAT considers appropriate.
52. Following the introduction of that section a number of cases were brought before the AAT many of which were cited to us including Porchester Nominees Pty Ltd v Renfrey and Others [1987] 1 AATR 79 which decided that Sections 39(3) and 150 in combination with Section 52(2) of the Administrative Appeals Tribunal Act provided the AAT with the power to review decision of the Minister as Responsible Authority or planning authority to prepare or adopt planning schemes other than the first day schemes.
53. As a consequence legislation was introduced to repeal sub-sections (1), (2) and (3) of Section 150 and Mr Stokans submitted this demonstrated an intention to limit the AAT's powers in relation to the strategic planning process, and he referred to the Minister's second reading speech.
54. At the same time, the then Section 39 of the Act was replaced with its current form and Mr Stokans submitted that the essence of the amendment was to enable defects in procedure to be referred to the Tribunal to include the matters in Part 8 of the Act. But he referred to Section 166 of the Act which authorised a Panel to make its report and recommendations despite any defect, failure, irregularity or failure to comply with Divisions 1, 2 or 4 of Part 3 in relation to the preparation of the planning scheme or amendment.
55. Whilst the heading to a Section does not form part of the Act (Section 35(2) of the Interpretation of Legislation Act 1984), Section 35(b) of that Act allows consideration to be given to the heading in the construction of the provision. In this application the only alleged breach of the provisions referred to in Section 39 is that there has been a failure to make specific findings pursuant to Section 25(1).
56. We have concluded that Section 25 does not impose on a Panel any obligation to make any findings, but merely an obligation to report what findings it does make, and that, applying the principles in Yusef, it is for the Panel to determine what findings it is material or necessary for it to make and this Tribunal cannot go behind those findings. It is clear from a perusal of the Panel's report that it has made findings on matters that it considers relevant and has made a recommendation to the Minister.
57. We consider what is being alleged is not a defect in procedure within the ambit of Section 39. What is claimed is a defect in the substantive recommendation of the Tribunal, namely that it failed to make findings of facts that the Applicants consider it should have made. It is in effect an application to the Tribunal to review the Panel's decision. The repeal of sub-sections (1), (2) and (3) of Section 150 of the Act removed that right.
58. A subsidiary question in this matter is whether the Panel did make findings on the submissions of the Applicants.
59. The Respondents argued that it did make appropriate findings. Mr Osborn QC's submission was that the Panel rejected the Applicants' submission that the basis for Amendment C1 is fundamentally flawed.
60. Mr Stokans submitted that the Panel addressed the issues raised by the Applicants and that this is demonstrated by an examination of the report as a whole. Ms Bannister for Melbourne Water submitted that it is evident from the report that the Panel did in fact consider and report on all relevant issues.
61. In paragraph 16 - 22 above we have considered the manner in which the Panel dealt with the submission. We have noted that the submissions were summarised in Clause 3.5 and that the Panel had dealt with them on an issue by issue basis, but there was also specific consideration of the Applicants' submissions. The Panel accepted the factual evidence presented by the submittors as a genuine record of personal observation and included a number of typical examples to indicate the quality and nature of the evidence. The Panel considered the expert reports of GHD and Egis Consulting and concluded (whether it be a finding or a recommendation) that the methodology adopted by Melbourne Water's modelling approach was appropriate.
62. Mr Stokans referred to the observation made by the Panel that the Applicants had not produced any expert or technical evidence in relation to Melbourne Water's methodology and submitted that the Panel was entitled to take this into account and reached the finding it did on the basis of the expert evidence that was before it. We agree with this submission. The question of flood level modelling methodology is a technical issue on which the Panel was given expert evidence, and the Panel accepted that expert evidence in the absence of any contrary expert evidence from the Applicants.
63. We conclude that the Panel did address the issues raised by the Applicant's submission, made findings which it considered material and relevant and made a recommendation to the Minister based on those findings in relation to the Applicants' submissions.
First Jodrian PL
Bayside CC [2001] VCAT 2402
Application refused. Under section 39, the Tribunal determined not to make a declaration. Costs reserved.