Freeman v Knox City Council [2007] VCAT 414

I direct that the Minister for Planning must not approve Amendment C50 to the Knox Planning Scheme unless the City of Knox first takes the following actions:

The City of Knox must give a fresh notice of Amendment C50, after preparing a new explanatory report in relation to the amendment that complies with the requirements of the Planning and Environment Act 1987. The council must then comply again with sections 21 to 31 of the Planning and Environment Act 1987 in relation to all matters after the giving of notice.

Ms J M Hebiton, solicitor, of Victorian Government Solicitor's Office

1 One of the objectives established by the Planning and Environment Act 1987 ("the Act") is to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making.[1] This objective is advanced by requiring a planning authority to prepare an explanatory report in respect of any proposed amendment to a planning scheme.[2] This case raises a novel issue concerning the content of an explanatory report: will a document be an "explanatory report" if it fails to adequately explain a proposed amendment?

2 Every planning scheme in Victoria contains a municipal strategic statement. The Knox Planning Scheme ("the scheme") is no exception. The intent of a municipal strategic statement is that it set the direction of planning for a municipality. As such, it is an important document, not only in the administration of a planning scheme, but also in relation to subsequent decisions about zones and similar controls.

3 In 2005 the Knox City Council ("the council") prepared Amendment C50 ("the amendment") to the planning scheme. The amendment proposed to replace the existing municipal strategic statement with a new statement. The amendment was the outcome of earlier work, including a review of the municipal strategic statement.

4 As well as preparing the amendment the council prepared two other documents to fulfil its obligations under the Act. It prepared a "notice of preparation of amendment": a document required pursuant to section 19 of the Act. It also prepared a document headed "Explanatory Report": a document required by reason of section 12(1)(e) and sections 17 and 18 of the Act.

5 The council then gave notice of the preparation of the amendment in accordance with section 19. Some persons, but not the applicant, made submissions about the amendment. As a consequence, a panel hearing was conducted; and the panel reported on 20 July 2006. On 12 September 2006 the council adopted the amendment. The amendment was submitted to the Department of Sustainability and Environment for assessment on 8 December 2006. The Minister has not yet approved the amendment.

6 One of the changes proposed by the amendment is to introduce a revised policy concerning housing within the Knox municipal district. This policy states that key housing themes are shown on a plan known as the "Housing Strategic Framework Plan". One aspect of the plan is that it identifies key strategic redevelopment sites. The proposed policy is to increase the level of housing provision in key strategic redevelopment sites.

7 Significantly the Housing Strategic Framework Plan shows some 44 sites designated as strategic redevelopment sites suited for a mix of medium and higher density housing. Most of these sites are private land. However 12 out of the 44 sites are reserves, including reserves which are currently used for public open space. One of these reserves is the Norvel Road Reserve in Ferntree Gully. The applicant lives in Castricum Place, Ferntree Gully; a short distance from the Norvel Road Reserve.

8 The applicant has brought a proceeding pursuant to section 39 of the Act. This enables a person who is substantially or materially affected by a failure of a planning authority to comply with specified parts of the Act in relation to an amendment which has not been approved to refer the matter to the tribunal for determination. The tribunal's powers in relation to such an application are in the nature of judicial review powers.[3] The tribunal does not have power to vary a decision to adopt an amendment, but may direct the Minister not to approve the amendment until the Minister, planning authority or a panel takes action specified by the tribunal.[4]

9 The applicant's principal argument is that the document titled "Explanatory Report" that was prepared by the council and made available for inspection was not, in truth, an explanatory report. Essentially the argument is that the document did not adequately describe what the amendment sought to achieve and, in particular, failed to alert the reader to the strategy of using existing public open space for medium and high density housing.

10 The applicant also contended that the document titled "Explanatory Report" did not adequately or appropriately respond to Ministerial Direction 11 "Strategic Assessment of Amendments". Further, he contended that the document did not adequately or appropriately respond to Ministerial Direction 9 "Metropolitan Strategy".

11 A further argument advanced by the applicant was that the notice of preparation of amendment did not comply with section 19(4)(a) of the Act and with Regulation 9(b) of the Planning and Environment Regulations 2005 because it failed to include "a brief description of the effect of the amendment" as required by these provisions.

12 Essentially the council joined issue with the matters raised by the applicant. However it also contended that if the notice of preparation of amendment was lawful then the applicant could not demonstrate that he had been substantially or materially affected by a failure of the planning authority to comply with the Act in relation to the explanatory statement.

The adequacy of the notice of preparation of amendment

13 It is convenient to start by considering whether the notice given by the council of the preparation of the amendment was a notice that included "a brief description of the effect of the amendment". The notice included three paragraphs concerning the effect of the amendment and then contained information concerning the inspection of the amendment and how submissions might be made.

14 The notice stated that the land affected by the amendment is the whole of the City of Knox. The notice specified that the amendment proposed to introduce a new municipal strategic statement and referred to a number of previous documents of a strategic planning character which had been drawn upon. The notice also specified that a new clause 21 would be introduced into the planning scheme to replace the existing municipal strategic statement.

15 I would regard the notice as including a brief description of the effect of the amendment. The notice tells the reader what the amendment is about and which land is affected by the amendment. The purpose of such a notice is not to explain the amendment: this is to be done by the explanatory statement. Rather the purpose of the notice is to alert a person to the existence of the proposed amendment so that the person can choose whether or not to take the next step to participate in the planning process. The next step in this regard is to examine the explanatory report and the amendment.

16 It is significant that the description of the effect of the amendment which is required by the regulations is a "brief" description. The requirement has been deliberately expressed in this language in order to promote clarity and convenience. Clarity is promoted by a brief description because lengthy text often acts as a disincentive to commence to read. Convenience is promoted by a brief description because it is quicker to prepare and easier to publish. It is relevant that the purpose of a notice of preparation of amendment is that it be given to various persons, including by way of a newspaper advertisement, to alert them to the amendment. It would be inconvenient if a lengthy exposition was required to satisfy the requirement to provide a "brief" description of the amendment.[5]

What does the law require of an explanatory report?

17 In East Melbourne Group Inc v Minister for Planning I commented:

The purpose of sections 17, 18 and 19 of the Act is to provide for public notification of an amendment to a planning scheme, targeted at persons who are likely to be affected, so as to enable those persons to consider the amendment and make a submission to the planning authority as to whether the amendment should be adopted. [6]

Part of this scheme is that the planning authority must prepare an explanatory report in respect of an amendment and must make that explanatory report available for inspection until the amendment is approved or lapses.

18 In modern parlance, a "report" is simply a document that contains information. A report which is "explanatory" is one that serves to explain: in the present context, it is a document that explains an amendment to a planning scheme by rendering it intelligible, or more intelligible, or by making it plain or clear.

19 A documented headed "Explanatory Report" which does not explain an amendment would not be an explanatory report which would satisfy the requirements of the Act. But what degree of detail is required to satisfy the requirement that the document "explain" the amendment? This is a difficult question, not least because long documents do not always explain as well as short documents. Indeed, many long documents often contain padding or obfuscation that actually mitigates against a sound explanation.

20 It is also relevant that the Act requires the planning authority that prepared an amendment to make the amendment available for inspection until it is approved or lapses. Thus the Parliament contemplates that the explanatory report will be read in conjunction with the amendment; or, at least, with the amendment also available at the same time.

21 Often the content of an amendment to a planning scheme will be expressed in language that is legalistic, or, at least, in language that is difficult to understand without understanding more of the context. Hence, in my opinion, the purposes of an explanatory report will be to introduce the detail of the amendment, to provide some context, and to highlight key changes to be made by the amendment. These objectives do not require an explanatory report to be a long document.

22 The explanatory report followed the pattern that is common in Victoria, being modelled upon Ministerial Direction 11 "Strategic Assessment of Amendments". This direction states that a planning authority must evaluate, and include in the explanatory report, a discussion of how the amendment addresses a number of specified strategic considerations.

23 Under the heading "What the Amendment Does", the explanatory report states that the amendment proposes to introduce a new municipal strategic statement. The document outlines how the new municipal strategic statement implements the findings of earlier planning processes, and describes these processes. The document also states that the update to the municipal strategic statement reflects work undertaken in certain earlier studies: The Knox Urban Design Framework 2020, Knox Sustainable City Plan 2001-2010, Knox Neighbourhood Character Study 1999, Knox Housing Statement (Draft) and various environmental studies.

24 The explanatory report states that the changes sought to clause 21 are specifically described as:

Clause 21 to 21.10 introduces a completely revised MSS with a new structure based on the strategic directions of Urban Design, Housing, Environment, Economic Development and Infrastructure and includes specific objectives, strategies and policies to guide Council's vision for each direction.

The explanatory report does not actually describe the strategies which the council proposes to adopt or, perhaps more importantly, how these strategies differ from the strategies that are currently expressed in the planning scheme.

25 I have examined the existing municipal strategic statement in clause 21 of the scheme, as well as the municipal strategic statement proposed to be introduced by the amendment. Although the format of the new statement is quite different to the existing statement, in large part the substance is similar. Further many newly articulated strategies are expressed in broad terms - some would say "motherhood" terms - with the consequence that little is likely to turn upon them. However the strategy in relation to housing on "strategic redevelopment sites" is neither in the existing municipal strategic statement nor a mere "motherhood" policy.

26 The retention of open space is politically sensitive. There are many instances where the community has fought hard to oppose attempts to use open space for some other purpose. This is so even if that other purpose is a recreation use.[7] It is also so if the open space is not formally such, but is only used as such on a de facto basis.[8] Hence one would expect a proposal to use designated open space for a mix of medium and higher density housing to be particularly sensitive.

27 There are also statutory provisions designed to ensure the maintenance of open space as open space. For example, section 20 of the Subdivision Act 1988 provides that a council must set aside for public open space any land vested in council for that purpose; and places limits on the sale of open space. Clauses 12 and 15 of the scheme also emphasise the importance of open space, including the protection of open space.

28 It may be that the City of Knox has a surplus of public open space and the community would be well served by a policy shift that led to the conversion of some of the open space into a mix of medium and high density housing. I also have no reason to suspect that the council has been disingenuous or has deliberately sought to avoid scrutiny. But I would regard such a policy shift as significant. It is significant because it is a new policy. It is significant because it creates a tension with policies in relation to open space. It is significant because it could lead to practical outcomes that disadvantage those who rely on or use public open space.

29 It does not follow that an explanatory report will fail to "explain" an amendment if it does not refer to a significant policy shift. This is because the amendment is also exhibited; and in some cases the significant policy shift will be apparent from an examination of the amendment itself. But that is not the case here. Rather the length and form of the amendment is such that any significant changes in the council's policy are not transparent. The new municipal strategic statement is 51 pages in length. The typeface used is small. The formatting includes many dot-points. The headings and sub-headings follow no clear pattern. The text is right hand justified.[9] There is much padding. The policies are coated in slabs of words about "context", "influences" (more accurately, "key" influences), "vision", "objectives", methods of "implementation", "overviews", "reference documents" and "monitoring".[10] The maps are difficult to interpret.

30 The policy changes to be introduced by the new strategic statement need explanation to ensure appropriate public participation in the planning process, as contemplated by the Act. The "Explanatory Report" did not even seek to do this, let alone achieve such a result.

31 I do not suggest for a moment that the council has deliberately attempted to deceive the public by failing to explain the policy shift contained in the proposed new strategic statement. But I am nevertheless reminded of the town clerk in England who wanted a divorce at a time when that remedy could only be provided by Act of Parliament. He achieved the objective by drafting a long Bill about waterworks in his municipal district; and including in a long paragraph about filter beds and stopcocks the phrase "and the marriage of the Town Clerk is hereby dissolved". The Bill was passed into law. No-one noticed the words about the town clerk's marriage.[11] Even though this is an example of deliberate deception (which I find did not occur here), it illustrates how a significant matter can be easily obscured when included in a mass of detail.

32 The Minister and the council drew my attention to Amendment C46 which introduced a new housing policy into the scheme. This amendment followed the preparation of the Knox Housing Statement in June 2005. That statement was another lengthy document (45 pages) and included a map called the Knox Housing Statement Capacity Map. The map showed a number of development sites having a high, medium or low capacity for development with housing. The development sites shown on the map included a number of existing open space areas, including the Norvel Reserve. When Amendment C46 was exhibited, it did not include the map. However after adoption by the council, and before approval by the Minister, the map was added into the amendment and is now part of the scheme. Although the map now included in the scheme in relation to housing policy is very similar to that proposed to be included in the municipal strategic statement, this fact is not of any consequence. First, it does not affect whether there has been any failure to comply with the Act in relation to the provision of an explanatory report for Amendment C50. Second, the consequence of the map being included in the municipal strategic statement is different and more profound that being included in housing policy. The strategic statement provides a strong springboard for any subsequent amendment which might seek to rezone open space for housing. And, third, the inclusion of the map in the strategic statement will carry extra weight because it would have been included in the scheme after an opportunity for public involvement - unlike the position that occurred with amendment C46.

33 The council also drew my attention to other publicity it generated to draw attention to Amendment C50 and the proposed new municipal strategic statement. The fact that such publicity was generated is commendable; and the form would seem entirely appropriate for the purpose of providing general information. But, having examined the material, I would not regard this as a substitute for an adequate explanatory report. In particular, it does not refer to or articulate a policy shift that would involve using open space for a mix of medium and high density housing.

34 The council submitted that, even if there was a failure to comply with the Act in relation to the explanatory report, the applicant could not bring a proceeding under section 39 of the Act because he was not affected by that failure to comply with the Act. The reasoning was that as the notice of preparation of amendment was adequate - and the applicant did not make any submission in relation to the amendment - he could not have been affected by a failure to comply with the requirements of the Act concerning the provision of an explanatory report.

35 I do not accept the council's submission.

36 In my opinion, when a proceeding is brought pursuant to section 39 of the Act, the first task is to identify whether there has been a failure to comply with the relevant parts of the Act and the nature of that failure. Having identified a failure to comply, the second task is to consider whether an applicant has been substantially or materially affected by that failure.

37 In the present case I have concluded that there was a failure on the part of the planning authority to comply with sections 17 and 18 of the Act in relation to the explanatory report. That failure makes it likely that the new municipal strategic statement will be approved in a form that increases the probability that the Norvel Road Reserve will ultimately be developed with housing, rather than be maintained as public open space. The applicant, who lives near to the reserve and uses it as open space, is materially affected by that consequence; and, thus, by that failure to comply with sections 17 and 18 of the Act.

38 In the circumstances, it is unnecessary to deal with the applicant's contentions that the planning authority has failed to comply with Ministerial Directions 11 and 9. However I would note that these contentions face difficulties. First, there would appear to be no obligation contained in Divisions 1, 2 or 3 of Part 3 of the Act or in Part 8 of the Act in relation to ministerial directions: yet it is only these parts of the Act that may be subject to a proceeding under section 39. Second, the relevant obligation of a planning authority when preparing an amendment is to "have regard to" ministerial directions.[12] This does not mean that the Minister's directions must be slavishly followed as if they were mandatory statutory requirements.[13]

39 The council submitted that since the matter was raised by the applicant the council now seeks to effect a further amendment to its new municipal strategic statement to clarify its intention in relation to strategic development sites. Essentially the council now proposes to make it clear that sites such as the Norvel Road Reserve have really been identified for further investigation and this will include considering the need for the open space, whether part of the land can be developed while maintaining adequate levels of open space, and whether the quality of open space areas can be improved.

40 In determining what order the tribunal should make it is important to note the limitations contained in section 39. The tribunal may make a declaration; and it may also make a direction that an amendment must not be approved until certain action is taken. The action which is most likely to be subject to a direction would seem to me to be a procedural action to remedy the failure to comply. It may be that only directions of this character are anticipated by the provision. Certainly I think the appropriate direction in this case should be confined to a procedural action.

41 I note that section 32 of the Act enables the Minister to direct a planning authority to give more notice of an amendment, even after it is adopted, if the Minister thinks that the notice which the planning authority gave was inadequate. This is so even if the planning authority has complied with section 19.[14] Further, the Minister may direct the planning authority to give notice of any changes to an amendment which the Minister proposes to make.[15] The Minister may then allow any person affected by a change to an amendment to make a submission to him on the change, and that submission may be referred to a panel.[16] In my opinion, these provisions provide a model as to what might be an appropriate order under section 39 in the circumstances of this case.

42 Consequently I propose to direct that the Minister must not approve the amendment unless council first gives a fresh notice of the amendment, after preparing a new explanatory report in relation to the amendment that complies with the requirements of the Act. The council must then comply again with sections 21 to 31 of the Act in relation to all matters after the giving of such notice.

[1] See section 4(2)(h) of the Act.

[2] See section 12(1)(e) of the Act.

[3] See Australian Conservation Foundation v Minister for Planning [2004] VCAT 2029.

[4] See section 39(4) and (5).

[5] In the circumstances, it is unnecessary to consider whether section 19(5) provides another answer to the applicant's contention.

[6] [2005] VSC 242, (2005) 12 VR 448 at [12].

[7] Leahy v City of Camberwell [1973] VicRp 57; [1973] VR 589.

[8] For example the use of former Commonwealth land, held for defence purposes, in the City of Kingston.

[9] Any elementary book on typography will explain that it is easier to read text when it is not right hand justified. That is why the VCAT decision template does not use right hand justification.

[10] It is not the tribunal's role to criticise the proposed amendment, but I cannot refrain from the comment that the proposed municipal strategic statement would be both clear and more effective if it was rewritten in no more than 10 pages.

[11] The story is told in Sir Robert Megarry, Miscellany-at-Law (1955), p 345.

[12] See section 12(2)(a) of the Act. Also see Glen Eira City Council v Gory [2001] VSC 306, 9 VPR 101.

[13] I draw a distinction between ministerial directions of the type raised in this case and ministerial directions as to the form and content of a planning scheme. Compare section 7(5) and (6) of the Act.

[14] See section 32 of the Act.

[15] See section 33 of the Act.

[16] See section 34 of the Act.