The conclusion reached was that there was no apprehended bias. The applicant was given notice of the permit application, lodged an objection and was given an opportunity to make submissions to the Council before its decision. All information taken onto account by the Council was contained in the officer's report and in the presentations and submissions made to the Council at its meeting.

Pre application meetings are encouraged through a Practice Note prepared by the Department of Planning and Community Development. Under the heading 'talk to council' it is recommended a pre application meeting take place with the council to help permit applicants. It states this advice should not be mistaken for 'in principal support' for the development. In R v South Australian Planning Commission; Ex parte City of Burnside R v South Australian Planning Commission; Ex parte Blass: 45 SASR 487 such meetings were distinguished from the situation of a tribunal member tendering advice to an actual or potential applicant in the absence of other parties.

Ex parte communications in the form of emails occurred between the permit applicant and Council officers prior to the lodging of the application. There was no information furnished by the ex parte communications that the parties whose interest might be affected by the information were not given an opportunity to correct or contradict: Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others.

Unlike in Roads Corporation v Love prior association between the Council officers and the permit applicant was a professional not personal association.

The Council planner's report recommending approval was based on the planner's expertise. The planner did not take part in the pre application meetings. Nothing in the officer's report lead to a conclusion that the officer was anything but impartial in the assessment. Nor was the officer's report of significance in the Council reaching its own decision it was not the sole matter relied upon by the Council, who also was required pursuant to section 60 (1) Planning and Environment Act 1987 to take account of the objections.

The pre application meetings were not incompatible with the applicant's rights under the Charter of Human Rights and Responsibilities Act 2006. There was no breach of the applicant's right to a fair hearing and the applicant's right to privacy was limited under section 7(2) of the Charter.

Whilst there is a discretion in the granting of a declaration in the circumstances of this matter there was an alternative remedy available.

Section 149B Planning and Environment Act 1987 - apprehended bias - pre-application meetings between council officers and potential permit applicant - Charter of Human Rights and Responsibilities Act 2006 - sections 13, 24 and 38 - right to fair hearing - right to privacy

Magee v Boroondara CC & Anor (includes Summary) (Red Dot) [2010] VCAT 1323

1. Pursuant to section 60 Victorian Civil and Administrative Tribunal Act 1998 Athlos No 4 Pty Ltd is joined as a party to the application.
2. The declarations sought are dismissed.
3. Costs Reserved.
4. Any party that wishes to make an application for costs must file and serve such application and supporting submissions by not later than 23 August 2010. Any response must be filed and served by no later than 6 September 2010. Any party may request a hearing to consider any application for costs or the Tribunal may convene a hearing at its discretion.

Mr T Mitchell and Mr N Magee QC, Barristers instructed by Planning and Property Partners Pty Ltd

Ms M Quigley SC and Mr P O'Farrell, Barristers instructed by Best Hooper

1. Notice of Decision to Grant a Permit No PP09/00927 was issued in breach of the rules of natural justice.

2. Contrary to section 60(1) of the Act, the Council failed, or failed to properly consider the objections it had received.

Application under Section 149B of the Planning and Environment Act 1987.

Clause 32.01 (construction of more than one dwelling on a lot)

Mildura Rural City Council v Minister for Major Projects [2006] VCAT 623; No 2 Pitt St v Wodonga Rural City Council [1999] 3 VR 439 at 459; Baarmuth Residents Association Inc and Others v Indigo SC [2005] VCAT 1521; Ebner v the Official Trustee in Bankruptcy [2000] HCA 63, (2001) 205 CLR 337; Minister for Immigration and Multicultural Affairs v Jai Legeng (2001) 205 CLR 507; James Martakis Architect v Moreland CC [2005] VCAT 2087 at [12, 13,and 14]; Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at p 289; R v South Australian Planning Commission; Ex parte City of Burnside R v South Australian Planning Commission; Ex parte Blass: 45 SASR 487; Minister for Aboriginal Affairs and Another v Peko -Wallsend Limited and Others[1986] HCA 40; (1986) 162 CLR 24; Roads Corporation v Love [2010] VSC 153; Winky Pop Pty Ltd v Hobsons Bay City Council [2007] VSC 468; [2007] 19 VR 312; Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438; McGovern and Anor v Ku-ring-gai Council and Anor [2008] NSWCA 209; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; Proctor v Melton SC (2003) 15 VPR 218; [2003] VCAT 1520; Kracke v Mental Health Review Board [2009] VCAT 646; Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 (12 September 2008); Carwoode Pty Ltd v Cardinia SC [2008] VCAT 1334; Smith v Hobsons Bay CC (Red Dot) [2010] VCAT 668 (12 May 2010); Director of Housing v Sudi [2010] VCAT 328; R v Momcilovic [2010] VSCA 50; Sweetvale Pty Ltd v Minister for Planning (2004) 16 VPR 192; [2004] VCAT 38; Wakefield v Wyndham CC (2004) 18 VPR 48; [2004] VCAT 1700; Garde-Wilson v Legal Services Board [2008] VSCA 43; Cook v Melbourne City Council (1989) 3 AATR 107; Phillips v Greater Shepparton CC (2005) 19 VPR 266; [2005] VCAT 653;

1. The applicant is the owner/occupier of 349 Union Road, Balwyn. She was an objector to an application for a permit to construct 9 dwellings on adjoining land at 347 Union Road, Balwyn. She is one of four objectors who have lodged an application for review with the Tribunal against the decision of the Responsible Authority to issue a Notice of Decision to Grant a Permit[1].
2. The applicant seeks in her application declarations that the Notice of Decision to Grant a Permit No PP09/00927 was issued in breach of the rules of natural justice and contrary to section 60(1) of the Planning and Environment Act 1987 (the Act), in that the Council failed, or failed to properly consider the objections it had received.
3. At the hearing the applicant sought a more detailed set of declarations that Council officers collaborated with the developer in preparing plans for an application for permit, participated in ex parte communications and had extensive prior dealings with the permit applicant which resulted in a recommendation by a Council planner to the Council to approve the application and that this amounted to a denial to the applicant of procedural fairness.
4. It is submitted the Council officers acted incompatibly with applicant's right to have the application decided by a competent, independent and impartial Council after a fair and public hearing. Further it is submitted the Council's decision to recommend approval of the application is invalid and unlawful by reason of infringements of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) in that there was a failure to give proper consideration to the applicant's right to privacy and right to a fair hearing.
5. None of the more detailed declarations sought at the hearing had been indicated to the other parties prior to the hearing. Nor had a possible breach of the Charter been raised. No order was made to amend the application. Both the representative of the Council and the permit applicant, Ms Marcus and Ms Quigley were therefore taken by surprise regarding this latter ground. They did respond at the hearing and have done so further in written replies.

1. There seems to be no dispute between the parties that some meetings took place between Council officers and representatives of the permit applicant prior to the lodging of a permit application on behalf of the Permit Applicant (Athlos No 4 Pty Ltd) on 16 November 2009. Such meetings were termed 'pre-application' meetings. The Council has readily acknowledged that two such meetings occurred.
2. There were some reference by the applicant to other meetings between representatives of the permit applicant and other Council employees that were not acknowledged by the Council. I was advised by Ms Marcus she had not been advised of any other meetings by the Council other than two meetings which occurred on 12 August 2009 and 11 September 2009. There was nothing specifically pointed to by the applicant that would lead me to conclude there were other meetings.
3. The Council indicated it did not intend to call any witness. The Tribunal considered it sufficient for the purposes of the hearing that the Council provide by way of submission the dates and names of the persons who attended the pre-application meetings.
4. The applicant was critical of the failure of the Council to call as witnesses the persons who attended the pre-application meetings to give evidence and to make them available for cross examination. It was only in written reply that the applicant referred to section 102 Victorian Civil and Administrative Tribunal Act 1998. It is a matter for a party before the Tribunal to decide whether or not it wishes to call witnesses and it is a matter for the Tribunal as to the weight it gives to either evidence if called, or submissions. At no time did the applicant indicate it wished to call any of the persons said to have attended the meetings.
5. The Tribunal was provided with various plans that it was said were presented at the pre-application meetings. These plans were presented by the permit applicant following a request prior to the hearing from the applicant. In indicating the dates of the pre-application meetings, as advised to me, I have described the plans. I have also indicated the people who participated in the meetings. This information was provided to me, as stated above by Ms Marcus from her instructions from the Council and confirmed by Ms Quigley for the permit applicant.
6. On 12 August 2009 a pre-application meeting was held between a director of the permit applicant, an architect on behalf of the permit applicant and the Council's Statutory Planning Coordinator. The permit applicant indicated it wished to develop the subject land into a number of apartments. A set of schematic plans dated 17 July 2009 were provided to the Tribunal. The Tribunal is advised these plans were shown at the meeting. The plans include a basement car park with provision for 19 car spaces as well as areas for bikes, plant and water tanks, a ground floor with 5 units numbered 1 to 5, a first floor with 3 units numbered 6, 7 and 8 and a second floor with 1 unit numbered 9.
7. On 11 September 2009 a second pre-application meeting was held. Attending this meeting were the three people from the earlier meeting as well as the Council's Urban Designer. The Tribunal was provided with a set of plans identified as Concept plans dated September 2009 which it is understood were presented at the meeting. These plans differ from the schematic plans in that there is a little more internal detail shown for the units on the ground, first and second floors. There has been an increase in the number of units from 3 to 4 on the first floor with now unit 10 shown on the second floor. The basement plan does not identify individual car spaces but does include a bin area. In this set of plans which was not evident in the earlier set is two sets of elevation drawings identified as option 1which features a flat roof and option 2 which features a pitched roof.
8. Ms Marcus indicated comments were made by the Urban Designer regarding key elements of the design and in particular, the type of roof, number of units and separate pedestrian access. It was stated that the Urban Designer at this meeting provided advice and criticism on the plans presented.
9. A changed set of plans was forwarded by the architect by email to the Council's Statutory Planning Coordinator on 2 October 2009. These plans were provided to the Tribunal. They are stamped 'preliminary' and include a basement plan which identifies the location of water tanks/plant and a store, a bin area but no individual car spaces, 5 units on the ground floor, 3 units on the first floor and one unit on the second floor. The elevations plans indicate a shallow pitched 'butterfly' roof. The Coordinator forwarded the plans by email to the Urban Designer for her comments. The Urban Designer provided via email to the Coordinator a response on 5 October 2009. These comments it is understood were not on forwarded to the architect.
10. On 7 October 2009 the Coordinator sent an email to the architect 'advising that, while Council's urban designer had provided some additional comments on the amended plans, the nature of the comments could be dealt with during the course of any permit application that may be lodged for the development'. The Coordinator requested the architect inform him when an application was lodged with Council.

1. An application for permit was lodged on 16 November 2009. The application was accompanied by a planning report, an arborist report, a concept design and application plans.
2. The application was allocated to a Council planner who was not one of the persons who attended the pre application meetings. I was also advised by Ms Marcus that the Council planner is a team member of another of Council's statutory planning teams, was not supervised by the Statutory Planning Coordinator who had attended the pre-application meetings and was not supervised by the Urban Designer.
3. The process that occurred once the application was lodged was on 14 November 2009 a request was made by the Council planner, assigned to consider the application, for further information from the permit applicant pursuant to section 54B of the Planning and Environment Act 1987 (the Act). The letter containing the request for further information also included some comments 'following a preliminary assessment of the application'.
4. These comments included identification of the need for notations on the plans to ensure compliance with standard B22 of Rescode, where the proposal was considered not to comply with some of the Rescode requirements as well as the Council's Residential Design Policy and Residential Urban Character Study, lack of details such as wall heights on the elevation plans. It was also advised that the application had been internally referred for additional comments and that when 'received the comments will be forwarded to you for your consideration'.
5. The application was referred internally to the Council's Urban Designer, Aborist, Traffic Department, Infrastructure Department and Parks and Gardens Unit. The Urban Designer responded by email dated 24 November 2009.
6. By letter dated 15 January 2010 the further information as requested, a set of revised plans picking up issues raised in the Council's letter and a written response to Council's concerns was provided by the permit applicant.
7. Following receipt of this information the permit application was advertised on 4 February 2010 to adjoining owners and occupiers of the subject land and by placing two signs on the subject land. 20 objections to the permit application were received by the Council, including one objection with 27 signatories. The applicant under cover of a letter from her solicitors lodged an objection dated 17 February 2010.
8. The permit applicant and objectors were notified on 20 April 2010 the application was to be considered at Council's Urban Planning Committee meeting on 3 May 2010. The Council planner prepared an officer's report dated 3 May 2010. The report included a copy of the set of plans considered by the Council planner[2].
9. Prior to the Council meeting on 28 April 2009 the permit applicant met with two Councillors and presented a power point presentation entitled 'Compact Community Development through Responsible Development'. A copy of this presentation was provided to all Councillors and was presented at the meeting on 3 May 2009.
10. Ms Marcus indicated that at the time of the presentation the Officer's report had been prepared, finalized and circulated and was available for public viewing on the Council's website.
11. At the Council meeting on 3 May 2010 presentations were made by representatives of the permit applicant, the applicant's husband on his behalf and the applicant's behalf, a solicitor acting for the applicant and the applicant's husband and another objector.
12. Three resolutions were put to the meeting, the first to refuse the application was defeated, the second to allow the application but with removal of one unit was also defeated and the third to allow the application with the inclusion of an additional condition requiring 'the setbacks for Dwelling 5 to the southern boundary be increased to comply with Council's Residential Design Policy' was carried. Seven Councillors voted in the affirmative and three in the negative.
13. A Notice of Decision to Grant a Permit was issued on 12 May 2010.

1. The Tribunal considers the following issues are required to be addressed:
   • Whether the discussions at the pre-application meetings give rise to a reasonable apprehension of bias.
   • Whether the Council planner's recommendation to approve the application give rise to a reasonable apprehension of bias
   • Whether there was a failure to give proper consideration to the applicant's right to a fair hearing and right to privacy
   • Whether there is an alternative remedy available.

1. There are two principles of natural justice, the hearing rule and the bias rule. The hearing rule requires 'a decision maker give a person whose interest may be adversely affected by a decision an opportunity to present his or her case'[3].
2. The applicant submits Councils are required to accord procedural fairness to objectors in a planning application process. The applicant relies upon the decision in No 2 Pitt St v Wodonga Rural City Council[4] where it was held that the Council, in deciding to reject an objection made by a person considered to be a commercial objector, is bound to act fairly towards the objector to the extent of granting the objector an opportunity to be heard before the decision is made.
3. The Responsible Authority submits that at all times the applicant was provided with an opportunity to be heard prior to the decision being made[5].
4. Once the application for permit had been lodged with the Council the Council is under a statutory duty to advertise an application[6]. The application was advertised to the applicant, being the owner/occupier of adjoining land. The applicant was invited to attend a meeting of the Council and was allowed through her representatives to present her case to the Council before a decision was made.
5. As the permit application process did not commence until an application was lodged with the Council it was under no statutory duty to involve the applicant in any pre-application meetings.

1. Actual bias is present when a decision-maker's mind is closed.
2. Apprehended bias 'is where a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'[7].

The apprehension of bias principle is to be applied to all cases in which it is suggested that, by reason of interest, conduct, association, extraneous information or some other circumstances, a judge might not bring an impartial mind to the resolution of the question the judge was required to decide.

1. In considering whether conduct of a decision-maker indicates bias, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision -making capacity, may be of critical importance[8].
2. The applicant contends that a reasonable lay observer being aware that pre application meetings occurred between the permit applicant and Council officers could only but conclude that the Council would not bring an impartial mind to the decision of whether to grant a permit.
3. In this respect the applicant refers in particular to the discussions with the Council's Urban Designer. The applicant suggests such discussions amounted to collaboration between the permit applicant and the Council officers, this was so because the permit applicant accepted some of the comments of the Urban Designer and prepared application plans that accorded with the Urban Designer's recommendations.
4. The applicant further submitted that when the Council officers indicated their support for the plans the application was lodged. Any assessment therefore of the application by the Council officers was already predetermined and as a result any decision of the Council which relied solely on the recommendations of the Council officer could not be considered an unbiased decision.
5. Ms Marcus submitted 'the fact that members of Council's staff are asked to bring experience to bear when examining proposals and giving advice upon it has nothing whatever to do with bias. The advice given was based on a professional relationship in which the adviser was expected to exercise some professional judgment'.

Whether the discussions at the pre-application meetings give rise to a reasonable apprehension of bias

1. Pre-application meetings are referred to in the General Victorian Planning Provisions (VVP[9]) Practice Note "Making a planning application for a dwelling in a residential zone", December 2001. This practice note has been prepared by the Department of Planning and Community Development on behalf of the Minister for Planning.
2. The VVPs are standard provisions contained in all planning schemes through out Victoria[10].
3. The practice note provides:

All planning schemes in Victoria contain residential development provisions to achieve locally responsive residential development. The provisions apply to the construction or extension of one or more dwellings on a lot and to the subdivision of land in residential zones.

This practice note is designed to help you make a planning permit application for one or more dwellings on a lot.

• The things to look for in the planning scheme that may affect your application
• The operation of the residential development provisions
• Information that needs to be provided with the application under the residential development provisions.

1. The practice note sets out 8 steps for making a planning application: check the planning scheme; talk to council; seek professional help; talk to the neighbours; prepare the neighbourhood and site description; prepare the design response; prepare the detailed layout and elevation plans; assemble your application. Under the heading 'talk to council' it indicates:

You should discuss the application with council before it is lodged. Putting time into pre-application consultation can save time and money later. Where possible, arrange a meeting on-site to discuss your proposal with council.

Meeting with council can help you to understand the:

• opportunities and limitations of the site
• new provisions and local policies and the implications of the zoning of the land
• features of the neighbourhood that should be carried forward in your design
• approach council has taken to similar applications

You can also use pre-application consultation to agree on the extent of the neighbourhood that needs to be described in the neighbourhood and site description.

Pre-application consultation with council can identify any fundamental problems with your proposed design approach in relation to the residential development provisions or local planning policy. However, general advice about your design approach should not be mistaken for "in principle support' for your development. The role of council is to assess whether your development will achieve the outcome sought by its planning scheme, taking into account any comments of neighbours and referral authorities.

1. Under the heading 'talk to the neighbours' it is indicated that 'it is a good idea to discuss the initial proposal with the neighbours. This way you can find out what their concerns might be and design your development to address these'. No such meeting took place.
2. Among the other General Practice Notes is one relating to 'Assessing a Planning Application for a Dwelling in a Residential zone' which is provided as a guide for responsible authorities assessing planning applications. Reference is made in this practice note to pre-application meetings between Council and the applicant as being useful.
3. As stated by Deputy President Gibson in James Martakis Architect v Moreland CC [11] :

Time limits on the provision of further information are part of an overall package of measures and one of the imperatives of that package is to encourage applicants to provide complete information with their application. The intent is to encourage pre-application meetings in order to sort out the details of an application prior to is lodgement. Whilst it is questionable whether this will result in any less time being spent on dealings between applicants and council officers it will tend to push the work to the front end of the process and hopefully avoid half-baked proposals being lodged and then sorted out once the application is lodged.

However, if a paradigm shift is expected of permit applicants, an equal paradigm shift will be required of responsible authorities. They must be prepared to provide practical and constructive critique of proposals prior to applications being lodged. It will not be appropriate to adopt an attitude of saying "lodge an application and then we will look at it". It will also place an onus on responsible authorities not to retract from positions adopted and advice given in the pre-application process where this has been relied upon in formulating the application that is finally lodged or to ask for information that has already been provided. I am not suggesting that this is the case with Moreland, but there are reports of these practices.

It is important to recognise that the development of a proposal is influenced by many factors. Gaining input from the responsible authority about its attitude to various aspects is an important part of the process. The changes to the legislation will not eliminate the importance of this part of the process but rather may shift how and when it is done. Responsibility will rest on both applicants and responsible authorities to make the changes work effectively.

1. In response to plans provided prior to the lodging of the permit application, the Urban Designer in her email dated 5 October 2009 to the Council Statutory Planner stated:

Obviously, the modifications listed have improved the design outcome. The skillion roof is usually softer than the flat roof and therefore its integration in existing streetscapes is easier given that pitched roofs tend to be the most dominant roof forms in these streets.

The only issue I would raise is the possible need for a couple of smaller skillion roofs to certain sections of the mass, especially those located within the most exposed facades and at lower level to enable their appreciation at a streetscape level. For example the east and west facades can benefit from such roofs, in particular the west one, which fronts Union Road. While the skillion roof at the upper level will enhance the streetscape skyline, the addition of similar roofs at lower levels will improve the visual relationship of the new façade with adjoining buildings and also assist in visually tying the different parts of the building together and create a more cohesive composition.

1. The applicant submits an apprehension of bias can arise from varied circumstances including apprehension of prejudgment of an issue; ex parte communications with the decision-maker; prior association with a party, or one of their witnesses; being a judge in one's own cause.

1. The applicant relies upon the decision in Livesey[12] and the dissenting decision of Deane J in Laws[13].

A court which in one case has expressed strong views about a party that are material to the result of that case which later embarks upon other proceedings involving the same set of incidents must create in the mind of a reasonable observer a suspicion that the second proceedings have been predetermined and that a fair hearing cannot be obtained.[14]

1. In Livesey, a matter relating to the striking off of a barrister, two members of the Court in a previous proceeding had expressed adverse opinions about matters and credit of a witness that the court was required to hear from:

A court which in one case has expressed strong views about a party that are material to the result of that case which later embarks upon other proceedings involving the same set of incidents must create in the mind of a reasonable observer a suspicion that the second proceedings have been predetermined and that a fair hearing cannot be obtained.

1. In Laws Deane J concluded because three members of the Tribunal had found there was non compliance with standards, then the Tribunal as a whole, including those three members, was affected by an appearance of bias. Mason CJ, Brennan, Gaudron and McHugh JJ concluded that a fair minded observer would not conclude the Tribunal (other than the three members) would bring other than an unprejudiced and impartial mind to the resolution of the issues that would arise in the inquiry.
2. The applicant equated the current situation with what occurred in South Australia in Burnside[15] where the Chairman of the Planning Commission entered into informal dialogue with a representative of the permit applicant, after having processed the application and in the absence of a further application, to arrive at an understanding regarding a revised concept which was then considered by the Planning Commission, without notice to or consultation with any other interested party and then produced a resolution. The Chairman further convened and chaired a meeting at the Council, made no reference to the resolution having already been passed, or that the Planning Commission had approved the new concept in principle, without prior input from the Council. Olsson J concluded that this was 'most undesirable' and 'by the time the revised application had been lodged the situation was indeed a virtual fait accompli and that it had been prejudged by the Chairman'.
3. I do not consider that the facts of the current matter can be equated to those in Burnside. The pre application meetings occurred before any application had been made; no decision had been made by the decision maker, the Council. The members of the Council, were not involved in the pre application meetings and I am unable to conclude that being aware from the Council planners report that the Urban Designer had a pre application meeting would lead the Council members to bring, as stated by the majority in Laws, other than an unprejudiced and impartial mind to the resolution of the issues.
4. As stated in Laws 'when assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case'[16]. In this respect it is considered that a fair minded observer would realise that the officer's report was a recommendation based on her professional expertise having regard to the professional expertise of those within the organisation that the application had been referred to.
5. In Burnside Olsson J drew a distinction between officers tendering advice to prospective applicants, not dissimilar to what has occurred in this matter and that of the final decision maker:

No doubt there can be little objection voiced at officers of the ASPC tendering general advice to prospective applicants as to strategies which may or may not be likely to commend themselves to the planning authority having regard to its previous approaches to specific problems.

But there is a world of difference between that type of situation and a member of an administrative Tribunal who is required to act judicially descending into what has aptly been described as the dust of the arena and being seen to tender advice to an actual or potential applicant in the absence of other parties having a legitimate and possible adverse interest.

1. In the current matter the meetings occurred prior to an application being made and once the formal process commenced and objections had been lodged further discussion only occurred at the Council meeting which determined the application and at which all parties made a presentation. Unlike the situation in Burnside there was no discussion or resolution by the decision- makers without the input of the objectors.

1. The applicant was critical of the failure of the Council to present evidence as to what had occurred at the pre-application meetings but instead outlined in submission the dates, who attend and what transpired from emails between the council employees and the architect that attended the meetings.
2. The applicant referred to emails between the permit applicant's representative and the Council officers prior to the application for permit was lodged as leading to an apprehension of bias. The applicant relied upon the statement of Brennan J in Minister for Aboriginal Affairs and Another v Peko -Wallsend Limited and Others[17]:

Where a matter submitted to an open inquiry involves a conflict between the interests of parties and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision-maker offends the requirement of natural justice: it deprives the opposing party of being heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision-maker... The general rule, found firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it.

1. There was in this matter no ex parte communications between the permit applicant and the decision maker, the Council. Whilst there had been emails between the permit applicant and a Council officer, these emails, as provided, refer to the first meeting between the Council officers and permit applicant's representatives, a request for a further meeting, the forwarding of a set of plans and a request for further comments, which were not provided, although the plans were forwarded to and assessed by the Council's Urban Designer, who provided comments back to the Council officer and an indication of intention to lodge an application with a response by the Council officer requesting to be advised when that occurred.
2. From such correspondence I am unable to conclude there was anything contained in the emails which could be said to have been taken into account by the Council in making their decision without the applicant being afforded an 'opportunity to comment, correct or contradict such information'.
3. The Urban Designer had provided a view of plans forwarded to the Council Statutory Planner these comments were not provided to the permit applicant and once the permit application was lodged the Urban Designer in commenting on the application expressed views that were incorporated into the Council planners report which was available to the applicant prior to the Council meeting at which the applicant or her representatives attended and made submissions.
4. All of the information taken into account by the Council was contained in the officer's report and in the presentations and submissions made to the Council on 3 May 2010. Unlike in Peko-Wallsend where the additional information given to the Minister was not disclosed.

1. The applicant referred to the decision of Cavanough J in Roads Corporation v Love[18] where the trial judge excused himself from hearing the matter as 9 years earlier he had personally engaged an expert planning witness, now relied upon as one party's sole expert planning witness. He relied upon the two steps stipulated in Ebner to reach his conclusion to excuse himself. He drew a distinction between prior professional recommendations to clients as to choice of expert with prior professional contact with experts and being a personal client of a relevant expert.
2. The two steps indicated in Ebner are firstly identification of what it is said might lead to a judge to decide a case other than on its legal and factual merits and secondly there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

In each case the question must be how it is said that the existence of the 'association' or 'interest' might be thought (by the reasonable observer) possible to divert the judge from deciding the case on its merits.

1. There was no personal association, as identified by Cavanough J; rather the association between the Council officers and the permit applicant's representatives was no different to what Cavanough J referred to as professional contact.
2. The applicant submitted the discussions with the Council officers and Urban Designer and the Urban Designer's comments in two emails, one prior to the lodging of the application and one after the application was referred to her and summarised in the recommendation are a sufficient link to lead to a conclusion that the Council would decide the permit application other than on its merits.
3. The Urban Designer as an employee of the Council is employed in her professional capacity and required to make comments on applications when such applications are referred to her. That the Urban Designer had had pre application discussions with the permit applicant and provided comments with respect to the design, is similar to what Olsson J referred to in Burnside of assisting and providing comments in relation to the policies within the planning scheme and advice regarding the assessment of the proposal. Such comments were no more than what was highlighted in the practice note being 'the things to look for in the planning scheme that may affect your application; the operation of the residential development provisions; and information that needs to be provided with the application under the residential development provisions'.

Whether the Council officer's recommendation to approve the application gives rise to a reasonable apprehension of bias

1. Relying upon the decision in Winky Pop Pty Ltd v Hobsons Bay City Council[19] that the 'presence of even one member of a Council will breach the rules of natural justice', the applicant submitted the Council's reliance upon the officer's report, even if they brought an impartial mind to the ultimate decision, was based on a prejudgment which would lead to all members being biased.
2. In Winky Pop a Councillor made a submission to the Council in his capacity as a citizen to include land within a redevelopment area. When it was time to make a decision the Councillor declared a conflict and did not participate in the resolution to refer it to a panel. The Councillor then appeared before the panel. When the panel report came before the Council the Councillor participated in the motion regarding the report. Whilst it was held the principles of natural justice required the Councillor refrain from participating in the motion as he might not have brought an open mind to bear in the issue this of itself was not sufficient to entitle a plaintiff to relief by way of certiorari. However relying upon Hot Holdings Pty Ltd v Creasy[20] Kaye J stated:

Those facts fortify my conclusion that the decision of the council on 14 August 2007 was, and will be, an important step in the decision-making process in respect of the proposed amendment, and thus is sufficiently connected with the ultimate decision in relation to the amendment to the planning scheme as to be amenable to relief in the nature of certiorari.

1. In this respect it was submitted that the recommendation of the Council planner was an important step in the decision making process, similar to the decision of the Council in Winky Pop and although the planner was not the final decision maker, there was, as with the Council and Minister in Winky Pop a sufficient connection to the ultimate decision maker, the Council.

Procedural unfairness can occur without any personal fault on the part of the decision maker. But if the form of unfairness alleged is the actuality or the appearance of disqualifying bias, and that is said to result from the conduct or circumstances of a person other than the decision-maker, then the part played by that other person in relation to the decision will be important[21].

1. The Council planner was assigned the application and undertook an assessment of the application following which she provided her recommendations based on her assessment. The report indicates she accepted the comments of the Urban Designer but this does not lead to a conclusion that there was any bias.
2. The Council planner that prepared the report did not attend or take part in the pre-application meetings. This employee whilst preparing a written report was an employed expert. The application was referred internally to various departments of the Council including traffic and engineering, the aborist, parks and gardens, infrastructure and the urban designer, all provided comments in their capacity as experts employed by the Council. In the report the Council planner has made comments relating to the arborist's response, the Parks and Gardens response and the Urban Designer's response. In summarising the comments of the Urban Designer the Council planner states in the report:

With the changes in the pre application stage of increased setbacks and the change in roof form from flat to skillion, the application is supported by Council's Urban Designer.

1. I consider this is a statement; it does not express any view from the planner herself, whilst it could be read as an indication of an acceptance of the Urban Designer's response. Whilst the officer's report assesses the permit application it is done so against the provisions of the planning scheme, taking account of the objections received and the comments from the internal referrals. There is nothing within the content of the officer's report that leads to a conclusion that the officer was anything but impartial in the assessment or approached the assessment with a closed mind, or the appearance of a closed mind. The officer could not be said to have any interest in the outcome nor has the officer made any adverse comments particularly in relation to the applicant.
2. In McGovern and Anor v Ku-ring-gai Council and Anor[22]Spigelman CJ stated:

A person who has come to a firm opinion, albeit on a pre-judgment basis, but not to the degree to become a party in substance, will often seek to convince others to adopt his or her view. However, that does not imply that s/he will do so by other than rational and relevant argument. Questions of fact and degree are involved which make it difficult to apply a rotten apple test to a pre-judgment case, even on an apprehended bias basis.

1. I do not consider that this matter falls within the same category as that of the decision in Winky Pop. I do not consider that the recommendation of the Council planner is of such significance in the Council reaching its own decision. I am therefore unable to conclude that as stated in Ebner that an impartial mind might not be brought to a resolution.
2. It was submitted that because the officers that participated in the pre application meetings and made a recommendation were employees of the Council their conduct could not be cured at the stage of the Council decision. This was because the recommendation was the sole factor which was considered by the Council.
3. In this respect the applicant referred to Ainsworth v Criminal Justice Commission[23] where it referred to Mason CJ in South Australia v O'Shea[24] in which it was stated:

It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision - making process, viewed in its entirety, entails procedural fairness".

1. In Ainsworth however the High Court concluded that in relation to the facts the Criminal Justice Commission in preparing a report to the Parliamentary Committee was engaged in the one decision-making process:

That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines.

1. Although it was acknowledged the functions and responsibilities of the Commission and the Parliamentary Committee are separate and distinct and serve quite different purposes the Parliamentary Committee was under no obligation to or would not necessarily address the unfairness perpetrated by the Commission, even if it did give the appellants an opportunity to answer what was put against them 'that cannot alter the fact that their reputation was blackened in circumstances in which the Commission should have given, but did not give, them an opportunity to put their side of the matter'.
2. The report was not the sole matter considered by the Council whilst it outlined the requirements of the planning scheme, summarised the objections and the internal referrals and provided an assessment against the requirements of the planning scheme, all of which was no doubt of assistance to the Council in considering the application, the Council invited and allowed submissions to be presented to it by the permit applicant and objectors including representatives of the applicant.
3. The Council itself is required under section 60 (1) of the Act to consider amongst other things 'all objections and other submissions which it has received and which have not been withdrawn'[25].
4. In hearing from the representatives of the applicant the Council has accorded procedural fairness to the applicant. The Officer's report is not, as identified in Ainsworth the final step. The final step is the consideration and determination by the Council.

Whether there was a failure to give proper consideration to the applicant's right to a fair hearing and right to privacy

1. In its application for declaration the second declaration sought was;

Contrary to section 60(1) of the Act, the Council failed, or failed to properly consider the objections it had received.

1. This was not specifically addressed in the submissions by the applicant rather it was argued more in relation to a breach of the applicant's rights under the Charter to a fair hearing and the right to privacy.
2. The applicant's property was referred to in the Council planners report as being to the north of the subject land. In this report there was a general summary of the objections received, this generally summary includes references in general terms to the issues raised by the applicant in her letter of objection. As there was no argument put in relation to this issue by the applicant I am unable to conclude the basis for the declaration sought has been made out.
3. In relation to the applicant's submissions regarding the Charter reliance was placed on section 38 of the Charter relating to the obligations on public authorities:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to giver proper consideration to a relevant human right.

1. The applicant submits the Council failed to give proper consideration to the applicant's right to privacy found under section 13 of the Charter and right to a fair hearing under section 24 of the Charter.
2. Section 4(e) of the Charter defines public authority to mean 'a Council within the meaning of the Local Government Act 1989 and Councillors and members of Council staff within the meaning of that Act'.

1. Section 24 of the Charter provides for a right to a fair hearing:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing

1. In Kracke[26] Bell J concluded that 'a right to a fair hearing in section 24(1) of the Charter is not confined to proceedings of a judicial character. It can cover civil proceedings which are of an administrative character'. He concluded that administrative review proceedings in the Victorian Civil and Administrative Tribunal will be civil proceedings within section 24(1).
2. The Tribunal in the context of this application for declaration is acting in a judicial or quasi-judicial capacity, it is not acting in its administrative or review capacity. It is not therefore considered that the Tribunal in such circumstances is bound by the Charter[27].
3. The applicant relied upon the conclusion in No 2 Pitt St that a municipal council is a tribunal and that on that basis the conclusions in Kracke, in which it is said civil proceedings should be read broadly so as to encompass administrative decision makers, the Council was required to accord the applicant a fair hearing.
4. There has been no breach of the applicant's right to a fair hearing. The applicant was given notice of and invited to attend the 3 May 2010 Council meeting. The applicant or her representatives were given an opportunity to make a submission/presentation to the meeting[28].
5. In this respect the 'proceeding' should be considered in the statutory context of the process evolved around an application for a permit which is set out in the Planning and Environment Act 1987. This includes the imposition under section 60(1) of the Act on the Responsible Authority to consider 'all objections and other submissions which it has received and which have not been withdrawn'.

1. Section 13 of the Charter provides:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with;

1. It was submitted by the applicant that 'the decision to recommend the approval of the permit and the decision to approve the granting of the permit failed to give proper consideration to the applicant's right not to have her privacy and home arbitrarily interfered with'.
2. A Charter right may be limited taking into account the factors in section 7(2) of the Charter being the nature of the right; and the importance of the purpose of the limitation; and the nature and extent of the limitation; and the relationship between the limitation and its purpose; and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
3. Section 13 does not provide an absolute right. The interference referred to are 'unlawful' and 'arbitrary' interferences. In relation to an 'unlawful' interference it cannot take place except in cases envisaged by the law.
4. 'Arbitrariness' it was submitted includes an assessment of proportionality and to that extent overlaps with the justification criteria set out in section 7(2) of the Charter. An interference may be authorized by statute, but still be arbitrary[29].
5. In Smith v Hobsons Bay CC[30] Deputy President Dwyer in relation to the allegations of breach of privacy under the Charter in the context of a planning application and considering whether clause 54.04-6 of planning schemes, dealing with overlooking, is compatible with the human right to privacy protected under the Charter, applied the 3-step process referred to in R v Momcilovic[31] having regard to the planning regulatory framework in Victoria, the relevant clause is considered not to be either unlawful or arbitrary, and even if it was, it imposes a reasonable, proportionate and justifiable limitation on the right to privacy. In his view any decision that has proper regard to the planning regulatory framework would not be unlawful or arbitrary
6. The Council submits it did not fail to consider the two human rights under section 38 of the Charter when it made its decision. Section 38 of the Charter requires the council 'to act compatibly with Charter rights; and give proper consideration to Charter rights'.
7. The Council officer in the report under 'executive summary' states:

Governance issues: The officers responsible for this report have not direct or indirect interests requiring disclosure and there are no implications arising under the Victorian Charter of Human Rights and Responsibilities

1. There was no discussion or analysis contained within the report in relation to the Charter. This statement however indicates consideration has been given as to whether there is an engagement of rights under the Charter. As stated in Smith although the Charter right to privacy is potentially engaged, it is sufficient if the decision has had proper regard to the regulatory framework.

Although a person's right to privacy in his or her home is fundamentally important, and this is now reinforced by the Charter, the effective application of the planning regulatory framework in Victoria is also important. That framework seeks to balance public and private rights, and seeks to provide for the fair, orderly and sustainable development and use of land by imposing certain restrictions on the use and development of land that most would consider justified in a free and democratic society. The planning framework specifically attempts to deal with overlooking, and thus expressly recognises the right to reasonable privacy.

Any decision that properly considers all relevant planning considerations, including in this case cl 54.04-6 of the Hobsons Bay Planning Scheme, would in my view represent a reasonable, proportionate and justifiable limitation on Mr Davey's right to privacy.

1. As referred to above under the provisions of the planning scheme there are specific requirements required to be considered when assessing interference to privacy this is set out in clause 54 of the planning scheme and includes a requirement to consider such matters as overlooking. The Council planner in her report assessed the application and its impact on surrounding properties and considered impacts in relation to 'overshadowing and overlooking'. I am therefore unable to conclude there has been any failure to consider the applicant's right to privacy.

1. Morris J in Sweetvale Pty Ltd v Minister for Planning[32] stated:

The hurdle faced by a person alleging that a planning permit decision was not open is a high one, not only for the reason articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited, but also because planning decisions are so broadly based that it will be very difficult to say that no responsible authority, acting rationally, could have made the decision in question. Indeed, the difficulties facing a person seeking to judicially review a planning permit decision is one of the fundamental reasons why parliaments throughout Australia have provided for review of planning permit decisions on the merits. This is particularly so in Victoria, which can rightly claim to have the broadest and most accessible system of planning review on the merits in the country.

1. It was submitted by both respondents that the Tribunal should exercise its discretion in not giving the declaratory relief as sought as it would be of no utility because there was an application for review on the merits already lodged to be heard by the Tribunal.

If a declaration will not have any useful effect or the substantive outcome sought to be achieved by making a declaration will be achieved by other means, it is not appropriate for the Tribunal to make a declaration.[33]

1. The applicant rejected this and relied upon the Court of Appeal's decision in Garde-Wilson v Legal Services Board [34] that the onus of establishing that the discretion should be exercised to refuse relief falls on the party opposing the grant of relief; the existence of an adequate alternative remedy is a factor in the exercise of the discretion but is not determinative; and denial of declaratory relief to a party denied a fair decision below denies that party the availability of at least one level of appellate review and the Court should be slow to allow a serious denial of procedural fairness to be allowed to stand.
2. In Cook v Melbourne City Council[35] Deputy President Macnamarra concluded that where there is an alternative remedy the Tribunal has jurisdiction to make a declaration.
3. In relation to weight and in determining not to make a declaration as in the circumstances of the case it would undermine the effect of the statutory scheme intended to deal with such issues, the Tribunal in Phillips v Greater Shepparton CC[36] stated:

Declarations are a discretionary remedy. Court and Tribunal have consistently held that the jurisdiction to make declarations must be interpreted broadly. There are a number of well recognised factors that will influence whether discretion ought to be exercised in making a declaration. The High Court in Ainsworth v Criminal Justice Commission gave the following list of factors often used in the exercise of discretion to grant or withhold declaratory relief:

1. In the circumstances of this matter, there is an appropriate alternative remedy that has already been engaged. An application for review pursuant to section 82 of the Act is a review of the merits of the application such a hearing before the Tribunal is a 'de novo' hearing where the Tribunal is required to stand in the shoes of the original decision maker and reach the 'correct or preferable decision'.

1. The Council, the decision maker was not a party to the discussions at the pre application meetings, such meetings between Council officers and the permit applicant merely provided advice on the strategies to adopt in relation to the requirements of the planning scheme. Such meetings are encouraged. This did not result in prejudgment of the application.
2. Whilst there were ex parte communications between the Council officers and the permit applicant prior to the lodging of the application it could not be said the emails contained anything taken into account by the Council.
3. Prior association between the permit applicant and the Council officers was professional contact; there was no personal association that could lead to an apprehension of bias.
4. The recommendation of the Council's planner to approve the application does not give rise to a reasonable apprehension of bias. The Council planner did not attend or take part in the pre application meetings. The Council planner assessed the application based on her expertise and comments from the internal referrals. There was nothing in the officer's report that leads to a conclusion that the officer was anything but impartial in the assessment or approached the assessment with a closed mind, or the appearance of a closed mind.
5. The officer's report was not the sole matter considered by the Council. All the information taken into account by the Council was contained not only in the officer's report but in the presentation and submissions made to the Council on 3 May 2009.
6. The Council did not fail to give proper consideration to the applicant's rights under the Charter to a fair hearing and right to privacy. The pre application meetings are not incompatible with the applicant's right to a fair hearing or right to privacy under the Charter.
7. Procedural fairness was accorded to the applicant by the giving of notice of the permit application, the receipt of her objection and not only taking account of her objection but allowing her to make a submission to the Council prior to its determination.
8. I am unable to conclude that 'a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question'. In such circumstances I decline to grant the declarations sought. If I am wrong in this conclusion I do not consider that I should exercise my discretion to grant the declarations sought in the circumstances of this matter as there is a process of review available to the applicant which is a 'de novo' hearing by the Tribunal and the applicant has already commenced such a process.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Plans prepared by CBG Architects TP01, TP02 Revision A, TP03 Revision A, TP04 Revision A TP05 Revision A, TP07 Revision A, TP08 Revision A, TP09 Revision A, TP09.1, TP10, DR 03, DR 04, DR05, and a Landscape Concept Plan prepared by CDA Design Group TP01

[3] Mildura Rural City Council v Minister for Major Projects [2006] VCAT 623

[5] Baarmuth Residents Association Inc and Others v Indigo SC [2005] VCAT 1521

[6] Section 52 Planning and Environment Act 1987

[7] Ebner v the Official Trustee in Bankruptcy [2000] HCA 63, (2001) 205 CLR 337

[8] Minister for Immigration and Multicultural Affairs v Jai Legeng (2001) 205 CLR 507 per Hayne J at [181]

[9] Planning Schemes are established under the Planning and Environment Act 1987. Only the Minister for Planning has power to approve or amend a planning scheme.

[10] Section 4A Planning and Environment Act 1987

[11] [2005] VCAT 2087 at [12, 13,and 14]

[12] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

[13] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70

[14] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at p 289

[15] R v South Australian Planning Commission; Ex parte City of Burnside R v South Australian Planning Commission; Ex parte Blass: 45 SASR 487

[17] [1986] HCA 40; (1986) 162 CLR 24

[18] [2010] VSC 153

[19] [2007] VSC 468; [2007] 19 VR 312

[20] [2002] HCA 51; (2002) 210 CLR 438

[22] [2008] NSWCA 209

[23] [1992] HCA 10; (1992) 175 CLR 564

[24] [1987] HCA 39; (1987) 163 CLR 378 at p389 per Mason CJ

[25] Proctor v Melton SC (2003) 15 VPR 218; [2003] VCAT 1520

[26] Kracke v Mental Health Review Board [2009] VCAT 646

[27] Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 (12 September 2008); Carwoode Pty Ltd v Cardinia SC [2008] VCAT 1334; Smith v Hobsons Bay CC (Red Dot) [2010] VCAT 668 (12 May 2010)

[28] City of Boroondara Meeting Procedure Local law

[29] Director of Housing v Sudi [2010] VCAT 328

[30] (Red dot) [2010] VCAT 668

[31] [2010] VSCA 50

[32] (2004) 16 VPR 192; [2004] VCAT 38 at 25

[33] Wakefield v Wyndham CC (2004) 18 VPR 48; [2004] VCAT 1700 at 52

[34] [2008] VSCA 43

[35] (1989) 3 AATR 107

[36] (2005) 19 VPR 266; [2005] VCAT 653