Landes v Vicroads

Landes v Vicroads - [2009] VCAT 2403 - VCAT 2009 case summary — Zoe

[8]

According to this statement this plan emerged from the 'Premier's congestion roundtable' which was held earlier in 2008 'with community and industry leaders'.
The 'clearway' system is one that has been used on arterial roads in metropolitan Melbourne for several decades adding extra available lanes during morning and evening peak periods by prohibiting parking during those periods. The clearway system has and remains a strictly enforced one with offender's vehicles being towed. The announcement represented a very substantial extension of the hours during which most clearways operated and caused some vigorous public debate.
Predictably traders in strip shopping centres were strongly critical of the proposal which would reduce parking facilities for their customers.
One of those critics was the applicant in this proceeding, Mr Howard Ian (Herschel) Landes whose company carries on retail businesses at 211 and 194 Bridge Road, Richmond. Bridge Road is one of the arterial roads subject to the clearway system. On 12 May 2008, Mr Landes attended a meeting with Mr Tim Pallas, the Minister for Roads and Ports at the Minister's office 'to discuss the announcement in regards to extended clearways times'. A Ms Nellie Dicks also attended the meeting. According to Mr Landes and Ms Dicks, the Minister announced that 'these changes were not negotiable' and the purpose of the meeting was to discuss 'issues such as parking arrangements, signage or other local implementation issues'.
There was abortive legal action in this Tribunal and threatened legal action in the Supreme Court. On 5 June a Memorandum of Advice from Vicroads, the popular name of the Roads Corporation established by the Transport Act 1983 was submitted to the Minister for Roads and Ports. It was over the signature of Ms Dionne Lew, Director Media and Communications, Mr Ted Vincent, Executive Director, Regional Services and Mr Garry Liddle, Chief Executive. The memorandum noted amongst other things that the Victorian Government has announced that a 'Clearways Implementation Reference Group (CIRG) would be established'. It proposed a process whereby this group would receive submissions with the submission period open for some 28 days. The memorandum stated that the submissions would likely:

[14]

The advertisement stated that public submissions could be received between 16 June 2008 and 5 pm, 14 July 2008.
According to the evidence of Mr Brown, Executive Director of Regional Services for Vicroads, a number of submissions arrived late but were still considered for the purposes of the CIRG. Upwards of 700 submissions were made. Vicroads engaged a consultant to 'digest' those submissions and to prepare a presentation to the CIRG which met on 4 August 2008. The CIRG apparently consisted of some 16 persons about four of whom were Vicroads officers. The Municipal Association of Victoria had a representative on the group, though the most affected inner city municipalities were not directly represented.
On 4 August the consultants provided a Powerpoint presentation to the group. The group met under a set of guidelines which had been adapted from a Code of Practice on clearways on arterial roads published in the Victorian Government Gazette on 16 September 2004 under the provisions of the Road Management Act 2004 was the basis for those guidelines. The most significant departure from the procedure laid down in the Code was removal of the requirement for communication to all interested land owners and occupiers and the shortening of the consultation period from 60 days to 28 days. The group issued some 15 implementation recommendations set out in bullet point form on a single A4 sheet of paper. These recommendations directly tracked the Powerpoint presentation made to the group by the consultant.
According to Mr Brown on 29 August 2008 the Minister for Roads and Ports announced that the extension of clearway hours in the morning would occur immediately with the extension of afternoon hours to occur 'early in 2009'.
When this matter was heard in the Tribunal on 30 October 2009 the Premier's announcement of 29 April 2008 was yet to be fully implemented. Mr Landes' company carries on business in Bridge Road, Richmond, one of the city's major inner-arterial roads. Clearway restrictions on Bridge Road as at the date of hearing, far from having been moved forward to 3.00 pm, remained at their previous start time - 4.30 pm.
Mr Brown's evidence as to when implementation of the Premier's announcement began was contradictory. In cross-examination by Mr Landes, he conceded that implementation had begun on Punt Road before the CIRG had met on 4 August. Being taken to some document in re-examination by Mr Young, Counsel for Vicroads, Mr Brown said that the implementation began after the 4 August meeting though it is fair to say that his evidence on both occasions was diffident and imprecise.
The suggestion in cross-examination by Mr Landes that implementation began before 4 August was based on documentation before that date seeking quotations for the provision of signage, inter alia in Punt Road. Mr Brown said in re-examination that these quotations were sought before 4 August so that Vicroads would be prepared to implement when a decision to implement was taken.
On 9 February 2009, Mr Landes forwarded a facsimile transmission requesting access under the Freedom of Information Act 1982 to the following documents:

[71]

In His Honour's opinion the consideration of public interest in those circumstances was a single stage balancing process. In Pullen v Alpine Resorts Commission (unreported Administrative Appeals Tribunal or Victoria 23 August 1996) I had considered that the public interest criterion under Section 30(1)(b) of the Act focussed upon public interest issues peculiar to the deliberative process and that it was possible and appropriate in given circumstances to consider a wider range of public interest matters under Section 50(4). Hence a two stage process may be appropriate. In Osland v Secretary Department of Justice [2007] VSCA 96, the Court of Appeal appeared to adopt a two stage process though they did not refer to Newnham's case. I respectfully favour the two stage process which I described in Pullens case.
Do the public interest considerations raised by Mr Landes outweigh or countervail the public interest considerations advanced by Vicroads which I have accepted? In my view they do not. Mr Landes contended that the passage that has been withheld constitutes 'the last piece of the jigsaw'. This is an interesting analogy. People sometimes use it to refer to some final piece of information which 'makes sense' of a set of circumstances which otherwise cannot be fathomed. A consideration of the metaphor however points in another direction. The last piece of a jigsaw may simply be a small area of the sky. It is necessary to make the picture created by the puzzle complete; but if it is never added, it is obvious enough to any person viewing the picture with the gap in it what the missing piece depicts. It does not represent the 'key' to understanding the picture. That is the situation in this present proceeding. Both in the evidence which he advanced and in his cross-examination of the respondent's witness Mr Landes who is not so far as I can make out a qualified lawyer showed great skill in describing and fully ventilating his grievances against Vicroads and the Government's decision making processes. These matters can be fully debated without access to the disputed document hence there is no requirement of the public interest whether one gives it the imperative quality that it has been held to possess for the purposes of Section 50(4) or some meaning based upon a mere balance favouring (to use a more neutral term) the release of the disputed passage.

At a glance

Court

Decision date

Source

Judgment (71 paragraphs)

Landes v Vicroads (General) [2009] VCAT 2403 (11 November 2009)

Parties

Legislation Cited (1)

Cases Cited (3)