Plaintiff v First Defendant

1 A freeway links the Melbourne Metropolitan Ring Road with the Hume Highway north of Craigieburn. It is commonly known as the Craigieburn By-Pass. Planning for such a link began in 1975. But there was great public controversy about the potential social, economic and environmental effects of the link and about the particular route that might be adopted. Various public inquiries and related state and federal processes took place. On 21 February 2001 the then Premier of Victoria announced a decision about the route to be adopted. After some limited modifications, the chosen route was specified in a public acquisition overlay contained in ministerial amendments to the Whittlesea Planning Scheme and the Hume Planning Scheme. The amendments were gazetted under the Planning and Environment Act 1987 (Vic) ("the P & E Act") on 4 September 2001. On 4 October 2001 the Victorian Minister for Transport approved the acquisition of 212.049 hectares of land accordingly under the Transport Act 1983 (Vic). By further Ministerial amendments to the planning schemes, the land was rezoned to Road Zone Category 1 on 13 December 2002. The By-Pass was completed in December 2005. It is 17.5 km long. It is heavily used. All of the land on which it sits is now registered in the name of the Roads Corporation, the second defendant.

2 Previously, for many years, the plaintiff Thomas Love had been the registered proprietor of about 210 hectares of irregularly shaped land at 410 Cooper Street, Epping, running between Cooper Street to the south and O'Hern's Road to the north ("the Love Pre-Acquisition Land"). The property had been in the Love family for decades. It included a homestead comprising a weatherboard house and a cottage and outbuildings (collectively referred to as "Clonard") with certain historic features. Mr Love rented out the cottage from time to time. He and his wife lived in another, more modern, house on the property. The land was otherwise used for quarrying and for grazing cattle. Mr Love had plans to expand quarrying on the land. However, pursuant to a notice of acquisition under the Land Acquisition and Compensation Act 1986 and the Transport Act 1983 published in the Government Gazette on 11 February 2002, a strip of Mr Love's land about 1.6 km long comprising some 25 hectares, including most of Clonard ("the By-Pass Excision Land"), was compulsorily acquired by the Roads Corporation for the purposes of the By-Pass.

3 In this proceeding Mr Love alleges that the compulsory acquisition was legally invalid. He attacks various steps taken in the planning and acquisition process. In particular he says that if the By-Pass was to be located in the general neighbourhood of his land it ought to have been placed on a certain alignment about 300 metres to the east, such that it would have been on the land of his neighbour, Mr Scanlon, for part of its length between Cooper Street and O'Hern's Road, rather than on his own land. He says that the authorities should have recognised that the chosen alignment of the By-Pass would largely prevent the quarrying of a basalt stone resource on his land and would thereby result in unwarranted acquisition costs and that a cheaper and more suitable alternative was to use his neighbour's land in the area in question. He says that, in any event, Clonard ought to have been protected. He alleges that the decisions complained of were affected by improper purpose (in the administrative law sense), by failures to take into account numerous relevant considerations, by the taking into account of numerous irrelevant considerations and (to a limited extent) by breaches of the principles of procedural fairness; and he says that the decisions were so unreasonable that no reasonable person could have made them.

4 The plaintiff has not requested or received any statement of reasons under s 8 of the Administrative Law Act 1978 for any of the decisions in question. Unlike most cases that raise administrative law issues, this proceeding was not commenced under the Administrative Law Act 1978 (Vic) or under Order 56 of the Supreme Court Rules. Rather, it was commenced by writ and statement of claim. The plaintiff claims various declarations of invalidity. He seeks injunctions for the removal of the By-Pass from its present alignment and the rectification of the relevant title particulars. He claims damages for trespass and nuisance. He also claims damages for negligence in connection with the decision-making processes. He says that the regime for compensation under the Land Acquisition and Compensation Act 1986 is irrelevant because the acquisition was invalid. However he is the respondent in another proceeding pending in this Court in which, effectively in the alternative, he claims millions of dollars by way of compensation under that Act in respect of the acquisition of the relevant land.

5 The proceeding has had a long and chequered history. Responsibility for that lies largely, if not entirely, on the plaintiff's side. Originally there were three defendants: the then Victorian Minister for Planning (Mr Thwaites), the then Victorian Minister for Transport (Mr Batchelor) and the Roads Corporation. The Ministers have since been removed as defendants and the State of Victoria added. The proceeding was commenced in February 2003. The present defendants say that, even then, it was issued much too late. However an interlocutory injunction restraining the Roads Corporation from disturbing the main parts of the Clonard homestead was obtained in March 2003.[1] Since then, the plaintiff's allegations have changed significantly from time to time. He has engaged new legal representatives more than once. A protracted application for leave to file and serve an amended statement of claim and to add certain new parties was refused by Williams J on 22 February 2006.[2] Her Honour's decision was based in part on the prolixity, obscurity and embarrassing nature of the proposed amended statement of claim, which had itself already been re-drafted several times. For a considerable time the plaintiff maintained serious allegations of impropriety against various individuals, but he has since wholly withdrawn all such allegations. The current amended statement of claim ("ASOC") was filed pursuant to leave granted by Osborn J on 20 June 2007. By a later order, his Honour directed that the trial of this proceeding be split so as to defer the question of the quantum of damages. All other questions in the proceeding, including questions as to the appropriate form of any other kind of relief, fall for determination at this stage.

6 The plaintiff's case canvasses numerous events and intensive activity involving a large range of individuals, organisations and government bodies over a period of some 8 years. The State of Victoria and the Roads Corporation are sought to be made responsible for a series of alleged mistakes by Ministers and officials which allegedly amounted to or led to administrative law errors and which allegedly also involved negligence. The ASOC is 99 pages long, with multiple cross references. It is highly convoluted. In parts, it is almost incomprehensible. The defence of the State of Victoria is 91 pages long. The Roads Corporation's defence occupies 148 pages plus a four page index. Discovery was a vast exercise, with numerous interlocutory skirmishes. Various subpoenas were issued and responded to. Interrogatories were administered by the plaintiff and answered. The court book of pleadings and documentary evidence originally comprised over 16,000 pages divided into 38 volumes. It was not in chronological order. During the hearing and over a period of approximately two months after the hearing, the court book was reduced somewhat so as to include only the documents tendered by one party or another and so as to reduce duplication, but it remains voluminous,[3] and it is still not in chronological order or in any other sensible order. There are additional thick volumes of legislation, authorities, written submissions and other relevant documents. The plaintiff's written outline of submissions for the final hearing occupies 56 pages, the State of Victoria's 48 pages and the Roads Corporation's 93 pages. All are heavily footnoted. Further written submissions were handed up during the hearing.

7 The hearing was originally estimated to take 12 weeks, but with skilful and efficient advocacy by all counsel it actually occupied only 12 days, albeit with the effect of requiring a great deal of work to be done by the Court in chambers after the conclusion of the hearing.

8 Shortly after the beginning of the hearing a view of the land in question and surrounding areas was conducted.

9 The bulk of the evidence for the plaintiff was adduced by way of affidavit or, in the case of Mr Love himself, by way of a consolidated witness statement constructed during the hearing from portions of various prior affidavits. That witness statement was 180 pages long, with multiple cross-references to other documents on almost every page. Certain expert evidence that the plaintiff proposed to call in relation to the value of the stone resource was ruled inadmissible, for reasons I will recount in due course. Five of the plaintiff's witnesses, including himself, were called to give additional oral evidence and were cross-examined. No witnesses were called by either of the defendants.

10 In the end, counsel for the plaintiff declined to press certain limited aspects of the ASOC. Additional written submissions, including submissions as to the contents of the court book, were filed after the hearing, by leave. The transcript of the hearing, including addresses, occupies over 1,500 pages. Virtually every page includes one or more cross-references to other documents (especially evidentiary material, including innumerable maps, as well as pleadings, outlines, aides memoire, legislation, authorities and other things) all of which needed to be turned up, read and considered in conjunction with the transcript. A similar exercise was also necessary in relation to Mr Love's heavily cross-referenced witness statement.

11 Although the factual history to which the court was taken is very detailed and very lengthy, in the end there were few significant issues of primary fact. For the most part, the primary facts are constituted by, or recorded in, documents. Mostly, the issues of fact that remained were issues about the inferences to be drawn from the primary facts, including inferences as to the nature of the reasoning of various Ministers and officials for particular decisions and acts, and as to causation generally. In addition, there were issues about the characterisation of the facts for the purposes of administrative law and for the purposes of the law of negligence.

12 The courts are anxious to ensure that public authorities do not exercise powers of compulsory acquisition of property in an unlawful manner. However, despite the avalanche of material, the plaintiff has failed to establish that the compulsory acquisition of the By-Pass Excision Land was affected by any administrative law errors at all much less by any errors that would ordinarily produce invalidity. Nor is there any legal basis for a permanent injunction protecting Clonard. In any event (although it is unnecessary to decide), the registered title of the Roads Corporation may well be indefeasible even as against Mr Love. Further, even if vitiating error had been shown, there would be powerful discretionary reasons for refusing the declaratory and injunctive relief sought. The claims in trespass, nuisance and negligence were all premised on the alleged invalidity of the acquisition. Invalidity not having been established, those claims fail too. They faced various other hurdles, some of which, at least, would also have been insuperable. Accordingly, the proceeding falls to be dismissed. Mr Love will have to be content with the statutory compensation available under the Land Acquisition and Compensation Act 1986.

13 This proceeding being essentially an administrative law case - and the plaintiff having acknowledged that the entire case depends on establishing the invalidity of the acquisition of the By Pass Excision Land - the relevant statutory framework is vital and should be borne in mind from the outset. Otherwise there is a risk of becoming lost in the morass of facts and documents relied on by the plaintiff, and of forgetting the true, limited scope and purpose of any proceeding by way of judicial review of administrative action, as explained by Brennan J in Attorney-General (NSW) v Quin:[4]

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's powers. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

14 As mentioned above, both state and federal processes were involved in the planning and construction of the By-Pass. Before me, the parties have concentrated on the relevant Victorian legislation. I note in passing that the entire project was federally funded and that it was affected by Commonwealth statutes relating to transport and to the environment. Indeed, in December 2002, shortly before this proceeding was issued, Mr Love's then solicitor, Mr Stevens, wrote to the relevant Commonwealth Ministers seeking their intervention in relation to the placement of the By Pass on Mr Love's land.[5] The relevant Commonwealth legislation was discussed by Finkelstein J in dismissing a challenge brought in the Federal Court by an environmental group concerned about various aspects of the project.[6] However no particular provisions of the Commonwealth legislation were referred to or relied on by any of the parties before me.

15 The Victorian statutory provisions of most significance are contained in the P & E Act, the Land Acquisition and Compensation Act 1986, the Transport Act 1983, and the Transfer of Land Act 1958. Mr Love attacks three ministerial amendments to the Whittlesea Planning Scheme made under the P & E Act. The first and most important was Amendment C23, which was gazetted on 4 September 2001 under the name of Planning Minister Thwaites and imposed the public acquisition overlay. The second was Amendment C46, which was gazetted on 13 December 2002 under the name of Planning Minister Delahunty and converted the public acquisition overlay to a road zone. The third was Amendment C62, which was gazetted on 9 December 2004 and rezoned a certain strip of land on the neighbouring Scanlon land from "rural" to "industrial". Mr Love also attacks the approval, given by Transport Minister Batchelor on 4 October 2001 under s 42(1) of the Transport Act 1983,[7] of the acquisition by the Roads Corporation of the By-Pass Excision Land. Finally, the defendants rely on the indefeasibility provisions of the Transfer of Land Act 1958 to support the title of the Roads Corporation as the registered proprietor of the land since May 2003.

16 The parties are agreed about the form of the applicable legislation as at the relevant dates. I will refer to the legislation in that form and ignore any subsequent amendments.[8]

17 Section 1 of the P & E Act provides that the purpose of the Act is "to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians".

18 The use, development and protection of land in Victoria is governed by planning schemes.[9] A planning scheme is a statutory creation which sets out objectives, policies and provisions relating to the use or development of land. The Act sets out, among other things, procedures for preparing and amending planning schemes.

19 At the time when Minister Thwaites caused Amendment C23 to be gazetted, the new format Whittlesea Planning Scheme, which incorporated the Victorian Planning Provisions ("VPPs"), was in force with respect to the Love Pre-Acquisition Land.[10]

20 The VPPs are a set of "standard planning provisions"[11] for planning schemes. The VPPs are used as a statewide reference template, to ensure that consistent provisions for certain matters are maintained across Victoria and that the construction and layout of planning schemes are always the same.

21 As with all planning schemes, the Whittlesea Planning Scheme includes a statement of the objectives of planning in Victoria, a statement of the purposes of the planning scheme, the State Planning Policy Framework ("SPPF") and the Local Planning Policy Framework ("LPPF").

22 Section 4(1) of the P & E Act states the objectives of "planning in Victoria" and s 4(2) states the objectives of "the planning framework established by this Act". It is desirable to set out both sub-sections in full:

(1) The objectives of planning in Victoria are -

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.

(2) The objectives of the planning framework established by this Act are -

(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;

(l) to provide for compensation when land is set aside for public purposes and in other circumstances."

In addition, the following provisions contained within s 6 of the P & E Act should be noted:

(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and

(aa) must contain a municipal strategic statement, if the scheme applies to the whole or part of a municipal district; and

(b) may make any provision which relates to the use, development, protection or conservation of any land in the area.

(2) Without limiting subsection (1), a planning scheme may -

(b) regulate or prohibit the use or development of any land;

(c) designate land as being reserved for public purposes;

(d) include strategic plans, policy statements, codes or guidelines relating to the use or development of land; ... ."

Provision is made for the primacy of State standard provisions.[12] Provision is also made to the effect that "a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guidelines in the planning scheme".[13]

23 The SPPF derives from the VPPs and is identical in all planning schemes. It comprises a statement of general principles for land use and development planning and specific policies dealing with issues relating to particular areas. It commences:

"The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development."[14]

24 Clause 11.02 of the SPPF specifies the goal of the framework as:

"... ensur[ing] that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development."

25 The LPPF contains a municipal strategic statement ("MSS") and local planning policies.[15] The framework identifies long term strategic directions for land use and development in the municipality and provides the rationale for the zone and overlay requirements and particular provisions in the scheme. Local planning policies provide guidance to decision-making on a day to day basis where such guidance is not provided by the VPPs.

26 The City of Whittlesea MSS sets the strategic planning framework for the City of Whittlesea and encapsulates significant planning policy directions for the municipality. The MSS was prepared having regard to "strategic planning documents and Ministerial Directions, including, in particular, the Plenty Valley Strategic Plan, City of Whittlesea General Plan and Ministerial Direction No 7",[16] as well as State Government policy, Council planning policies and community and stakeholder consultation.[17]

27 Amendment C23 identified the land to be acquired by the Corporation for the future construction of the Craigieburn Bypass by applying a public acquisition overlay ("PAO") to the identified land. This included the Bypass Excision Land. The purpose of the PAO was to reserve the land for a public purpose, being the construction of the Craigieburn Bypass, and thus ensure that changes to use and development of the land did not prejudice the purpose for which the land was to be acquired.

28 Amendment C46 removed the PAO from the land reserved for the public purpose of the Craigieburn Bypass and rezoned it to a road zone.

29 Each of Minister Thwaites and Minister Delahunty was acting in his or her capacity as a "planning authority" when, respectively, Minister Thwaites purportedly prepared, adopted and approved Amendment C23 and Minister Delahunty purportedly prepared, adopted and approved Amendment C46.

30 Section 8 of the Act confers power on the Minister to prepare a planning scheme or amendments to any provision of a planning scheme. Section 9 provides that any person given such power under section 8 is a "planning authority" under the Act.

31 Section 12 of the Act specifies the duties and powers of planning authorities. It should be set out in full:

"12 What are the duties and powers of planning authorities

(a) implement the objectives of planning in Victoria;

(b) provide sound, strategic and co-ordinated planning of the use and development of land in its area;

(c) review regularly the provisions of the planning scheme for which it is a planning authority;

(d) prepare amendments to a planning scheme for which it is a planning authority;

(e) prepare an explanatory report in respect of any proposed amendment to a planning scheme.

(2) In preparing a planning scheme or amendment, a planning authority -

(a) must have regard to the Minister's directions; and

(aa) must have regard to the Victorian Planning Provisions; and

(ab) in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and

(d) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and

(c) may take into account its social effects and economic effects.[18]

(b) do all things necessary to encourage and promote the orderly and proper use, development and protection of land in the area for which it is a planning authority; and

(c) take any steps and consult with any other persons it considers necessary to ensure the co-ordination of the planning scheme with proposals by those other persons."

32 The parties are in dispute about the consequences of the use of the word "may" in s 12(2)(c) as compared with the use of "must" in the remainder of s 12(2) and in s 12(1). The defendants submit that the distinction supplies a complete answer to the plaintiff's case insofar as the plaintiff submits that the Ministers were bound to have regard to any social or economic effects of the relevant planning scheme amendments. The plaintiff disputes this. He points out that in Whitehorse City Council v Golden Ridge Investments Pty Ltd[19] the Court of Appeal summarised the relevant provisions of the Act[20] as envisaging, among other things, that land use and development planning and policy will be "integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels". On the other hand, I note that the Court of Appeal did not expressly refer to s 12(2) at all. I will return to this debate in the context of the plaintiff's claim that the Ministers failed to take into account relevant considerations.

33 Section 29 of the Act confers power on the planning authority to "adopt the amendment". Section 35 of the Act confers power on the Minister to "approve an amendment", whether the amendment has been prepared by the Minister himself or herself or submitted to the Minister under section 31. Both Minister Thwaites (in respect of Amendment C23) and Minister Delahunty (in respect of Amendment C46) purported to exercise the relevant powers to "adopt the amendment" and to "approve an amendment".

34 Amendment C62 rezoned a strip of land on the eastern side of the Craigieburn Bypass from a farming zone to an industrial zone. That land was then owned by Northpoint Enterprise Park Pty Ltd, a company with which Mr Scanlon was associated.

35 Minister Delahunty did not prepare Amendment C62. She was not the "planning authority" for the purposes of section 8 of the Act. On 22 June 2004, the City of Whittlesea resolved to adopt Amendment C62 and refer it to the Minister for approval.[21] Sections 32 to 35 of the Act governed the ambit of the Minister's powers upon receipt of the adopted amendment.

36 Under those provisions, the Minister may direct the planning authority to give more notice (if the Minister thinks the notice given by the planning authority was inadequate)[22] or direct the planning authority to give notice of any changes to the amendment which the Minister proposes to make.[23] The Minister may also allow any person affected by a change to an amendment to make a submission or refer any submissions to a panel appointed under Part 8 of the Act.[24]

37 Pursuant to section 35(1) of the Act, the Minister may approve an amendment submitted to the Minister under section 31 with or without changes and subject to any conditions the Minister wishes to impose.

38 Sections 4 and 5 of the Land Acquisition and Compensation Act 1986 provide that an "Authority" which is empowered under a "special Act" to acquire an interest in land by compulsory process must not commence to acquire that interest unless the land has first been reserved by or under a planning instrument for a public purpose.[25] Accordingly, the reservation for a public purpose of the land required for the Craigieburn Bypass, including the Bypass Excision Land, was necessary to enliven the power of the Corporation to acquire that land by compulsory purchase under the Land Acquisition and Compensation Act 1986.

39 At relevant times, section 42[26] of the Transport Act 1983 provided:

"(1) A Corporation may, with the approval of the Minister, purchase or compulsorily acquire any land which is or may be required by the Corporation for or in connexion with the performance of its functions or the achievement of its objects.

(2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose -

(a) the Transport Act 1983 is a special Act; and

(b) the Public Transport Corporation or the Roads Corporation (as the case requires) is the Authority; and

(c) 'land' includes a strata above or below the surface of land and easements and rights to use land or strata above or below the surface of the land; and

(d) section 75 of the Land Acquisition and Compensation Act 1986 has effect as if it empowered the Authority to enter any land and section 75(6) did not apply.

(2A) In addition to its powers under section 75 of the Land Acquisition and Compensation Act 1986, a Corporation may carry out investigations on and search for and obtain materials from any land."

40 Also worthy of note is s 16(1)(a) of the Transport Act 1983 which gave to the Roads Corporation a function, among others, "to maintain, upgrade, vary and extend the State's declared road network". So far as presently relevant, s 16(3) of the Transport Act 1983 provided:

"(3) In the exercise of its functions, the Roads Corporation must have regard to the achievement of the following objects -

(a) to make use of available transport resources in ways which are most beneficial to the community and with due regard to the enhancement of the environment;

(b) to operate within Government policy;

...

...

(f) to improve the State's principal road network to facilitate the efficient vehicular movement of people and goods;

(g) to improve productivity;

...

(n) to facilitate accountability at all levels within the Corporation by maintaining suitable information and reporting systems;

(o) to manage its assets effectively, including real estate, to protect future options and to provide for the planning, design, construction and management of new infrastructure and facilities as required;

(q) to minimise interference to the community arising from the construction and maintenance activities of the Corporation;

(r) to provide mechanisms and full information to enable effective and timely participation by the community in decision making about facilities, services and road works."

41 The Roads Corporation, as a body corporate, was given wide general powers in fairly standard form by s 38; and various particular powers, including powers to enter land for purposes relating to roads, by s 39 and Schedules 2 and 4. By s 31(1) it was provided that the Roads Corporation "must exercise its powers and discharge its duties subject to the general direction and control of the Minister, and to any specific direction given by the Minister".

42 The defendants rely on the well known "indefeasibility" provisions of the Transfer of Land Act 1958, especially ss 40-44. It is unnecessary to set them out here.

Ascertaining the reasons of the decision-maker: the East Melbourne Group case and general principles of judicial review

43 At common law, administrative decision-makers are not obliged to give reasons for their decisions;[27] and, as mentioned above, the plaintiff did not seek any statement of reasons under s 8 of the Administrative Law Act 1978 (Vic) for any of the decisions in question.[28] So there is no detailed statement of reasons for any of the decisions in question. The nearest thing to such a statement is a 16 page document called "Ministerial Assessment" signed by Minister Thwaites on 20 February 2001 explaining, among other things, his decision to adopt as the route for the By-Pass a proposed route that had come to be known as "Option Y". This was the decision that was announced by the Premier the next day. Amendment C23 itself was not finalised until some six months later. The documents for the Amendment include a short, formal, signed statement by Minister Thwaites to the effect that he had prepared Amendment C23 in accordance with s 8 of the P & E Act, having taken into account "in accordance with s 12 of the Act" environment-related effects; and had had regard to "the relevant Minister's directions".[29]

44 In this regard, the parties have made reference to the judgment of the Trial Division constituted by Morris J in East Melbourne Group Inc v Minister for Planning and Another.[30] That case concerned the validity of a certain ministerial amendment to the Melbourne Planning Scheme. The Minister for Planning had exempted herself, under s 20(4) of the P & E Act, from complying with the requirements contained in ss 17, 18 and 19 of the Act relating to notification to interested persons of the proposed planning scheme amendment. Pursuant to guidelines contained in a published "practice note", the Minister had issued a public statement of her reasons for intervening in the matter, including her reasons for exempting herself from the notification requirements. The stated reasons for the exemption decision indicated that the Minister had based her decision principally on a particular matter. Before Morris J the Minister sought to rely on various departmental documents to establish that her main reason or purpose was otherwise than as indicated in the public reasons. Morris J accepted this. In a passage relied on before me by the plaintiff,[31] Morris J said:[32]

"All the evidence should be considered

62 When it comes to assessing the plaintiff's claim that the Minister acted unreasonably or was motivated by improper purposes or had regard to irrelevant considerations, I hold that it is necessary to consider all the evidence which bears on this question and not just the public documents that explained the Minister's decisions. As a matter of logic, all evidence which is relevant should be weighed in the balance. Although certain types of documents ought be accorded more weight than other types of documents, one cannot rule out the possibility that the public documents explaining the Minister's decision were intended to put a gloss or 'spin' on the real basis for the decision, possibly to avoid or minimise public criticism."

45 On 31 October 2008, after the conclusion of the hearing in the present case, the Court of Appeal gave judgment in an appeal from the decision of Morris J. By majority, the appeal was allowed.[33] The majority held that, ordinarily, a decision-maker should be treated as bound by - and confined to - the reasons which the decision-maker gives for the decision in question;[34] and that that principle applied in the circumstances of the matter the subject of the decision under appeal.[35] On the basis of the Minister's stated reasons, the exemption decision was held to be legally insupportable.[36] The majority said, in particular,[37] that it could not agree with the observation of the trial judge (quoted above) that -

"... one cannot rule out the possibility that the public documents explaining the Minister's decision were intended to put a gloss or 'spin' on the real basis for the decision, possibly to avoid or minimise public criticism."

46 However no party in the present proceeding has sought leave to make further submissions in the light of the judgment of the Court of Appeal in East Melbourne Group. Nor do I think that there is any need for me to suggest or invite an application for such leave. The defendants do not ask the Court to treat the Ministerial Assessment signed by Minister Thwaites as being anything other than the Minister's true and complete reasons for the adoption of Option Y. On the other hand, the Ministerial Assessment itself[38] makes no express reference to the Love/Scanlon issues. And, as mentioned above, Amendment C23 itself was not finalised until about six months later. Recognising these things, the plaintiff, who bears the relevant onus of proof,[39] asks the Court to draw inferences about the Minister's reasoning in relation to Amendment C23 from other facts and documents. In the context of a suggestion that the decision-maker, as distinct from the opposite party, should be entitled to resort to extrinsic documents to explain a decision, the majority in East Melbourne Group said:[40]

"312 We put to one side a body of law which addresses the situation where a decision is unsupported by any reasons. It is permissible in such a case to look behind the decision to the material before the decision-maker, in an attempt to discern the reasons for the decision. Documents placed before the decision-maker may be considered. The court may be able to say that the decision could be explained by such material. Denver Chemical Manufacturing v Commissioner of Taxation [1949] HCA 25; (1949) 79 CLR 296, 313 (Dixon J). The inference may then be available that the information contained in the documents was taken into account and provided the reason for the decision. Sydney Municipal Council v Campbell [1925] AC 338; Telstra Corporation v Hurstville City Council & ors (2002) 189 ALR 737, 758 [50] (Sundberg and Finkelstein JJ). But when a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon. ARM Constructions v Deputy Commissioner of Taxation (No 2) (1986) 65 ALR 343, 351 (Burchett J); Collins v Repatriation Commission [1980] FCA 105; (1980) 32 ALR 581; Western Australia v Minister for Aboriginal Affairs and Torres Straight Islander Affairs (Carr J, Federal Court of Australia, 24 May 1995, unreported); Faulkner v Conwell [1989] FCA 103; (1989) 99 ALR 92, 96 (Jenkinson J, with whom Woodward and Ryan JJ agreed)."

However, where it is the opposite party that seeks to establish the true reasons, or additional reasons, of a decision-maker, then, subject to the requirements of relevance and reasonableness, I can see no basis for restricting the field of evidence or material to which that opposite party might resort, whether or not a statement of reasons has been provided.[41] In any event, I am prepared to proceed on that basis, in the plaintiff's favour. On the other hand, as indicated above, the plaintiff still carries the burden of persuading me that one or more of the relevant decisions or actions was affected by vitiating administrative law error.[42] And, as I will explain in due course, the plaintiff has not discharged that burden.

47 More generally, the East Melbourne case contains authoritative recent restatements, made in a related context, of relevant principles of administrative law. I note in particular the following passages in the judgment of the majority:[43]

"Judicial Review

[174] The proceeding sought judicial review of the Minister's decision. The scope and purpose of judicial review is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised. JJ Spigelman AC 'The Integrity Branch of Government' (2004) 78 (11) ALJ 724, 730. It is the extent of power and the legality of its exercise to which judicial review is directed. Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, 579 (Gummow and Hayne JJA); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 373 (Kirby J ).

Restraint in review of administrative decisions

[175] Having regard to the way in which the litigation was conducted, both at trial and on appeal, it is necessary for us to consider the material in order to see what reason or reasons the Minister gave for her exercise of the discretion to exempt. That said, we are conscious of the need to proceed with caution lest we exceed our supervisory role and trespass into the forbidden field of merits review. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41-42 (Mason J); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36-37 (Brennan J); Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, [127] (Spigelman CJ); Bruce v Cole (1998) 45 NSWLR 163, 184; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. It would not suffice if we took the view that a different decision would have been more appropriate or that another Minister might have reached a different result. Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626-627, (Gleeson CJ and McHugh J); Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, 59-65, (Sackville J). As Brennan J said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36:

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[176] In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119. Gibbs J observed

However, where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

[177] Gleeson CJ and McHugh J, in their joint judgment in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, [14]:

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

[178] We recognise that 'minor infelicities or trivial lapses in logic in cases where [ a decision-maker's] satisfaction as to a factual state provides the jurisdictional foundation for the exercise of power' would not warrant judicial review. Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [148] (Kirby J). As Kirby J stated in Re Minister for Immigration and Multicultural Affairs :

The degree of restraint that a court will exercise in circumstances where the fact-finding process is said to have miscarried to a significant degree, so as to amount to jurisdictional error, will to a considerable extent depend upon the nature of the applicable power, the statutory context and the effect of the impugned decision. For instance, where an assessment and evaluation of complex evidence is required by an expert administrative agency, a greater degree of restraint may be called for. Similarly greater caution is appropriate where the subject matter of the decision involves a significant element of governmental policy or allocative determinations, making it more remote from ordinary judicial experience. Ibid [130]-[131].

'Wednesbury' unreasonableness

...

[183] A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, R v North and East Devon Health Authority; ex parte Coughlan (2001) QB 213, 244 (Lord Woolf MR) or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Puhlhoffer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman). Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ); Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, [20]-[26]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 145 (Gummow J); Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59, [28] (Finkelstein J); Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 [34], [37] (McHugh and Gummow JJ); [127] (Kirby J); Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [559]-[561] (Weinberg J). A decision resting upon a finding of fact totally unsupported by evidence which is critical to the decision, whether expressed as the taking into account of an irrelevant consideration, error of law, or unreasonableness, cannot stand: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39. 'Irrationality' thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 233-4; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 410 (Lord Diplock)."

48 Again, I see no need to reconvene the hearing to discuss these general statements made in East Melbourne Group. They do not depart from previous authority - at least, they do not do so in any way that might be detrimental to the plaintiff. If anything, insofar as they relate to challenges to allegedly illogical or otherwise defective fact finding, they evince an approach that, with respect, might perhaps be thought more favourable to challengers than current High Court and Federal Court authority would call for, at least in relation to judicial review outside the context of s 75(v) of the Commonwealth Constitution.[44] In any event, I will, in the plaintiff's favour, treat them as fully authoritative in the present context, noting, at the same time, that the Court of Appeal was principally concerned with the Minister's exercise of a particular statutory power (the power under s 20(4) to self-exempt from notification requirements) that was not the same (either in scope or in the conditions for its exercise) as the statutory power of principal concern in the present case (the power to amend a planning scheme), albeit that the exempting power was also exercised in the present case. For completeness, I note that any differences between the authorities in relation to the approach required are of no moment in the present case, because the plaintiff has fallen very far short of establishing any of the relevant grounds.

49 A reservation for a proposed alignment of the Craigieburn By-Pass ("the By-Pass") was created in 1975. It was situated near the Merri Creek, well to the west of the plaintiff's land. It affected the planning schemes of both the City of Hume and the City of Whittlesea.

50 In 1995 the City of Whittlesea published a position statement for an area known as the Epping Bulge, a then largely undeveloped area generally to the west and north of the existing Epping urban area. The Epping Bulge included the plaintiff's land at 410 Cooper Street, Epping. In relation to the Cooper Street area generally, the position statement called for the facilitation of employment-generating uses and the careful consideration of "new uses that demand long-term and large buffer distances or that prohibitively restrict future building and/or development".[46] As time progressed, the City of Whittlesea came more and more to favour industrial development, and more and more to disfavour the extension of extractive industry, in the Cooper Street area.

51 In March 1996 the Victorian Minister for Conservation and Natural Resources announced Victoria's "Clean and Green Policy", which proposed a flora and fauna reserve to cover certain grasslands in the vicinity of the Merri Creek known as the Craigieburn Grasslands. The Craigieburn Grasslands lay some distance to the north-west of the plaintiff's land. The Policy also undertook that the future options for the protection of an area called the Cooper Street Grasslands would be examined. The Cooper Street Grasslands lay to the south-west of the plaintiff's land. The existing By-Pass reservation passed through both grasslands. The Clean and Green Policy proposed that, north of Cooper Street, the By-Pass reservation be moved to the eastern boundary of the Craigieburn Grasslands site.[47]

52 In April 1996 the second defendant, the Roads Corporation ("Vicroads"), requested the then Minister for Roads and Ports, Mr Geoff Craige, to seek the agreement of the then Minister for Planning and Local Government, Mr Maclellan, to a specified kind of planning process for the By-Pass. Vicroads acknowledged that planning scheme amendments would be required because of the proposed change of alignment but, on the basis that the proposed change was relatively minor,[48] Vicroads suggested that a statement under the Environmental Effects Act 1978 (Vic) would not be necessary.[49] Mr Craige wrote along those lines to Mr Maclellan on 2 May 1996. Mr Maclellan made no formal response until 27 March 1997. However relevant developments continued in the meantime.

53 On 17 June 1996 the City of Whittlesea published an issues paper calling for submissions on a draft strategy for land use in an area defined as the Cooper Street Precinct.[50] The plaintiff's land was in the centre of the Cooper Street Precinct. On 15 July 1996 the plaintiff's planning consultants, KLM (Mr Kraan), sent in a submission.[51] It extolled the virtues of extractive industry generally and of the extension of quarrying on the plaintiff's land in future in particular. It said that the eastern section of the plaintiff's property[52] had been the subject of extensive geological investigations in late 1995 to determine the nature and quality of the basalt rock resource within the property.[53] This had been done by Bell Cochrane and Associates, extractive industry consultants. The investigation work had included a conductivity survey, percussion drilling and diamond drilling. It had also included testing of drill core samples, plotting of drilling and test results and calculation of volumes of basalt and overburden materials. The results from the investigations (results which KLM described as "detailed") had been documented in a report prepared by Bell Cochrane and Associates which was commercially sensitive. In summary, the investigations had revealed an "indicated mineral resource" in the central eastern area of some 15.1 million tonnes of basalt rock and an "inferred mineral resource" of 3.6 million tonnes of basalt in the far eastern section.[54]

54 During this period (mid 1996), certain interest groups and local councils were calling for a By-Pass alignment that avoided the Craigieburn Grasslands altogether. Accordingly, in about August 1996, Mr Craige instructed Vicroads to investigate alignment options well away from the Craigieburn Grasslands, including alignments well to the east.[55]

55 From that time on, Vicroads, in conjunction with the Department of Natural Resources and the Environment, investigated numerous suggested alignments for the By-Pass. The plaintiff was apparently following the process with considerable interest. On 11 December 1996 he wrote to Mr Craige urging that certain options which the plaintiff believed were then under consideration be discarded because of their impact on his existing or proposed quarrying activities.[56] Mr Craige spoke to the CEO of Vicroads, Mr Jordan, about the plaintiff's concerns.[57] By a memorandum dated 13 January 1997 Mr Jordan informed the Minister that, contrary to the plaintiff's fears, Vicroads was not considering an alignment that passed directly through or close by his existing quarrying operations, but that one of the options then under consideration ("Line C") would pass along the eastern edge of the proposed new quarry area on the plaintiff's land; and that Vicroads was continuing its work towards identifying a preferred option.[58] Mr Craige wrote to the plaintiff on 21 January 1997 noting the plaintiff's concerns, putting him in touch with a senior Vicroads officer, Mr Bob Evans, and informing the plaintiff that the consideration of options was still progressing.[59]

56 Meanwhile, on 4 December 1996, Epping Development Park Pty Ltd, a company controlled by a businessman called Robert Scanlon, became the registered proprietor of the land at 360 Cooper Street ("the Scanlon land"), a square block of approximately 63 hectares then zoned farming, immediately to the east of the central eastern portion of the plaintiff's land. The Scanlon land extended only about half-way towards O'Hern's Road. It was bounded on the north by the far easterly block of the plaintiff's (irregularly shaped) land.

57 The plaintiff had several meetings with Mr Bob Evans and other Vicroads officers, including Mr Gary Gray, in January and February 1997. The discussions were mainly about the strategic importance of quarries in the area, the extent and nature of the basalt rock resource on the plaintiff's land, and the proposed planning process for the By-Pass.[60]

58 On 27 March 1997 Mr Maclellan wrote to Mr Craige informing him that no environmental effects statement would be required, but that he proposed to establish an Advisory Committee under s 151 of the P & E Act to examine the range of issues that arose in connection with the proposal.[61] The terms of reference for the committee were enclosed. They can usefully be summarised in the same way that, in effect, Mr Maclellan summarised them in his letter, as follows:

"• Clarification of the areas containing significant vegetation along the Merri Creek particularly for the Craigieburn and Cooper Street Grasslands.

• The advantages, disadvantages, costs and environmental impacts of the current reservation route; that presently proposed by Vicroads; and the alternative alignments raised in discussions between VicRoads and the interested parties (including consideration of upgrading the existing Hume Highway).
• The impact of the various alignments on likely future use of nearby land within the Merri Corridor."

"I would expect that the recommendations of the Advisory Committee will form the basis of an amendment to the Whittlesea and/or Hume Planning Scheme to incorporate the recommended route alignment and any necessary zonings related to the grassland areas or other identified features."

Mr Craige agreed with Mr Maclellan's proposed process.[62]

59 On 1 April 1997, presumably at the request of Mr Scanlon or his company, the City of Whittlesea resolved to exhibit proposed Planning Scheme Amendment L143. The amendment related specifically to the Scanlon land. The proposal was to rezone the land from General Farming B to Reserved General Industrial.[63] The City of Whittlesea notified the plaintiff of the proposal on 15 May 1997.[64]

60 On the same day (15 May 1997) an advisory committee was established under s 151 of the P & E Act in accordance with Mr Maclellan's proposal (the "First Advisory Committee" or "FAC"). It was comprised of Mrs Helen Gibson, Ms Jenny Love (no relation to the plaintiff) and Mr Geoff Sutherland.

61 By letter dated 19 June 1997,[65] Vicroads formally notified the plaintiff that the FAC had been established to consider the issues raised by the By-Pass proposal and that Vicroads was continuing to study various alternative routes. Though the letter does not specifically refer to this, it is common ground[66] that a plan showing five options (numbered 1-5) for the By-pass alignment was enclosed with the letter. Options 2 and 5 took an identical path between Cooper Street and O'Hern's Road. That path was wholly on the Scanlon land until it reached the boundary with Mr Love's far easterly block to the north of the Scanlon land. In the south (at Cooper Street), the line commenced fairly near the western side of the Scanlon land. It then curved away to the east until it crossed the northern boundary about halfway along. In substance, it divided the Scanlon land into two parts comprising about one-third and two-thirds of the block respectively. The map did not include any option traversing any part of the plaintiff's land west of the Scanlon land. Apparently the line referred to as Line C in Mr Jordan's abovementioned memorandum of 13 January 1997 (being a line which had run along the edge of the central eastern portion of the plaintiff's land) had by this time (June 1997) disappeared.

62 On 7 August 1997 a panel was appointed under Part 8 of the P & E Act to consider Amendment L143. The plaintiff made submissions to the panel opposing the amendment.[67] The submissions reveal a concern on the plaintiff's part that if the use of the Scanlon land for industrial purposes were facilitated then the plaintiff's prospects of being permitted to expand quarrying on his own land would be jeopardised. Little was said about the By-Pass.

63 On 1 October 1997 the panel published its report.[68] It recommended that Amendment L143 be abandoned as premature.

64 On 14 October 1997 the City of Whittlesea resolved not to accept the panel's recommendation that L143 be abandoned. It referred the amendment to the Minister for Planning for approval.[69]

65 On 20 October 1997 Vicroads wrote to Mr Frank Masten, a consultant representing Mr Scanlon, responding to a complaint by him about the fact that Option 2 for the By-Pass traversed the Scanlon land.[70] Vicroads explained that it had not been aware, when it developed Option 2, of Mr Scanlon's proposal for rezoning. It stated that should Option 2 be recommended by the FAC the alignment would be reviewed with a view to minimising the impact on the property, but with due consideration to other properties.

66 In late October 1997 the plaintiff withdrew an application he had previously made to the Whittlesea Council for a permit for a joint quarry/cattle saleyards proposal, and lodged instead an application (no 704078) for a permit for (further) quarrying only.[71] The plaintiff notified Vicroads of this at the same time.[72] The application was supported by a major submission prepared by KLM Planning Consultants (Mr Kraan) in conjunction with Bell Cochrane and Associates.[73] A permit was sought to extract rock from the central eastern portion of the property only, being the portion said to have an "indicated mineral resource" of 15.1 million tonnes of basalt rock. Of this, some 7 million tonnes was said to be above the water table and about 8 million below. The far eastern block (with an "inferred mineral resource" of 3.6 million tonnes) was not included, in recognition that for certain specified reasons it was not likely to gain planning approval. The proposal was to dig, initially, on both sides of a gas transmission easement that roughly bisected the central eastern portion of the property,[74] and, at a considerably later stage, to go below the water table but only on the western side of the gas easement.[75] It was asserted in the submission that commercial extraction was intended to commence within 5-7 years, on the basis of discussions with the proposed quarry operator, Conundrum Holdings Pty Ltd.[76]

67 On 30 October 1997, presumably as a response to pressure from Mr Scanlon following Vicroads' letter of 20 October 1997, a discussion took place between three Vicroads officers - Mr Bruno Aleksic, Mr Leo Stella and Mr Gary Gray - as to whether the alignment that passed through the Scanlon land should be modified at that stage[77] to limit the effect of the By-Pass on that land.[78] Documentary records of the discussion reveal that the Vicroads officers considered various factors both for and against locating the alignment on the Scanlon land, on the one hand, or on the Love land, on the other.[79] Among other things, there was a comparison of estimated compensation costs, with an indication that acquiring the plaintiff's land might be more expensive.[80] On the other hand the records suggest that an alignment through Love's land was thought to be more direct and in that sense a better alignment. In any event, the discussion apparently ended with a decision to leave things as they were for the moment.

68 On 1 November 1997 Vicroads issued an information bulletin showing Options 2 and 5 going more or less through the middle of the Scanlon land (as before).[81]

69 However, within 6 days (ie by 7 November 1997) Vicroads had verbally informed Mr Scanlon that the alignment of Options 2 and 5 would be moved to the western boundary of the Scanlon land.[82] This was confirmed in a letter from Mr Leo Stella of Vicroads to Mr Masten (for Scanlon) dated 12 November 1997.[83] The letter continued:

"This should assist by not severing the property as was proposed in the previous alignment. ... I must stress that the revised alignment is only one of many options that will be put on public exhibition by the Advisory Committee. ... Vicroads cannot give any undertaking that any of the route alignment options it has examined, and which are to be presented in the Planning Assessment Report, may not be amended, altered or deleted in the course of the planning process. This is a matter within the control of the Advisory Committee and the Minister for Planning and Local Government."

70 At the same time, Mr Scanlon was pressing for the Minister's approval of Amendment L143 for the rezoning of his land. He had strong support from the Whittlesea Council.[84] The Council's support was redoubled after it became aware of Vicroads' decision to move the alignment of Options 2 and 5 to the western boundary of Scanlon's land.[85] However, Minister Maclellan's initial response (by letter dated 14 November 1997 to the Council) was to say that he could not make a decision on L143 until the advice of the FAC on the By-Pass had been received.[86]

71 Mr Scanlon was undeterred. He repeatedly pressed Vicroads for finalised drawings of the amended alignment.[87] By letter dated 8 December 1997 Vicroads advised him that the change had been made, and enclosed a concept drawing showing the new alignment on the western boundary of the Scanlon land.[88]

72 Between 10 December 1997 and 9 February 1998 a series of events took place involving Mr Scanlon and his representatives, the Whittlesea Council, officers of Vicroads, officers of the Department of Infrastructure, Mr Craige and Mr Maclellan. The upshot of those events was that on 9 February 1998 a modified form of Amendment L143 was approved by Mr Maclellan. Amendment L143 rezoned the Scanlon land except for a strip 150 metres wide along the western boundary. The plaintiff now alleges that, in the course of the events in question, Mr Scanlon gave an undertaking that in return for a favourable rezoning decision he would accept compensation "on the then present day values, that is, reflective of General Farming zoning rather than industrial zoning",[89] if ultimately it was decided to locate the By-Pass on the 150 metre wide strip. The plaintiff further alleges that the Minister's approval of Amendment L143 was partly attributable to the alleged giving of that undertaking. He calls it "the Scanlon Undertaking". At the hearing before this Court, the so-called Scanlon Undertaking was relied on very heavily by the plaintiff. This gave rise to certain hotly contested issues. I will refer to the matter of the Scanlon Undertaking in more detail when I come to deal with the issues to which it is relevant.

73 On 19 January 1998 the plaintiff, his then solicitors and his planning consultant, Mr Kraan (of KLM Planners), attended a meeting with Vicroads representatives, namely Evans, Aleksic, Gray and one George Mavroyeni. This meeting had been called by the plaintiff to ventilate his concerns about the moving of the alignment from near the middle of the Scanlon land to its western boundary, ie close to the eastern boundary of the plaintiff's land. According to the minutes of the meeting,[90] the "impact on the proposed quarry due to the freeway being on the eastern boundary [sic] was raised and Mr Love indicated that this was likely to be severe".[91] The minutes also record that the plaintiff expressed concern that the new alignment would affect Clonard. A separate note made by Mr Mavroyeni stated: "Main issue that Vicroads needs to note is the possible historic significance of the homestead on Alignment Nos 2-5 at Cooper Street".[92]

74 On the other hand, as the defendants point out, there was no mention of the homestead or its historic significance in the detailed submission that was made two months later (on 18 March 1998) by Mr Kraan on the plaintiff's behalf to the panel that was then considering the new format (VPP) Whittlesea Planning Scheme. The submission concentrated on the proposition that extractive industry, as distinct from general industry, should be facilitated in the vicinity of the plaintiff's land.[93]

75 On 14 May 1998 Mr Kraan requested that the Minister for Planning and Local Government exercise his power under s 97B of the P & E Act to "call in" the plaintiff's application (no 704078) for a quarry permit.[94] The Acting Minister (Mr Cooper) did so on 1 July 1998.[95]

76 On 31 July 1998 the Minister established a panel ("the Quarry Permit Panel") to consider the plaintiff's quarry permit application no 704078.[96]

77 The Quarry Permit Panel sent its report to the Minister on 18 October 1998.[97] However Minister Maclellan decided that it should not be published until after the report of the FAC was received. Indeed it was not published until November or December 1999. It recommended that the application for planning permit no 704078 should be approved, subject to certain significant conditions.[98] One condition was that only land to the west of the gas transmission easement should be utilised for quarrying operations. Another was that any quarrying operations must be set back a minimum buffer distance of 40 metres from the western edge of the gas transmission easement. And another was that quarrying should only be permitted above the existing groundwater level. The combined impact of these conditions would have been to limit extraction to a total of an estimated 4 million tonnes only.[99] The extraction of even that much would have taken many years. One reason for the recommended restrictions was the panel's view that by the year 2025 or thereabouts all quarrying in the area should cease.[100] There are certain other important features of the Quarry Permit Panel Report, including observations about the Scanlon land, to which I will return in dealing with the issues between the parties.

78 On 27 October 1998 the Craigieburn Grasslands were added to the Register of the National Estate.[101]

79 On the same day, the City of Whittlesea endorsed the Outline Development Plan that had been submitted in respect of the Scanlon land pursuant to L143.[102]

80 On the next day, 28 October 1998, Vicroads released for public comment a lengthy Planning Assessment Report ("the PAR")[103]. It set out 5 options for the By-Pass. The PAR showed Options 2 and 5 as being located on the western edge of the Scanlon land but as also affecting the plaintiff's land.[104] In dealing with the development of Option 2, the PAR discussed what it designated as variation A (on the plaintiff's land) and variation B (going through the middle of the Scanlon land).[105] As to these, in remarks now heavily relied on by the plaintiff, the PAR said:[106]

"Three variations of this route [option 2] were investigated in order to balance the potential impacts on a proposed quarry and industrial development north of Cooper Street. ...

Reasons for rejecting variations 'A' and 'B" are listed below:

'A' because of its impact on a proposed quarry and possible[107] high compensation costs; and 'B' the affected area was subject to proposed rezoning to industrial uses and the variation had a large impact on this development. Compensation costs were also considered.

The adopted alignment was considered a reasonable compromise in terms of balancing impacts on the adjacent developments."

Overall, the PAR recommended Option 1 as VicRoads' preferred option.

81 At around this time (November 1998),[108] and quite frequently before[109] and after,[110] the then (Labor) Member for Yan Yean in the Victorian Legislative Assembly, Mr Haermeyer, was strongly advocating Mr Scanlon's proposals and strongly denouncing Mr Love's, both inside and outside the Parliament.

82 On 7 December 1998 the plaintiff made a written submission to the FAC commenting on the PAR.[111] He said, among other things:

"... from a heritage point of view options 2 and 5 as presented will see the demolition of my family's 'Clonard' homestead and its site. ... ."

He said that adoption of the route would marginalise or curtail proposed quarry operations in the area, including his own.[112] He denied that there was a significant countervailing need to make the Scanlon land available for industrial purposes.[113]

83 Between 9 May 1999 and 7 July 1999 there were heated communications from Mr Scanlon to Vicroads complaining about the alleged fact that until the publication of the PAR (in October 1998), neither the public nor Mr Scanlon had been made aware that Vicroads had previously developed Variation A (of Option 2) which went through Mr Love's land. Mr Scanlon made accusations about the integrity of the process by which the alignment had been removed from Mr Love's land. In the end, in a letter to Vicroads dated 7 July 1999,[114] which was marked as having been copied to the FAC, Minister Maclellan and Minister Craige,[115] Mr Scanlon said that neither the Ministers nor he himself was aware of the prior existence of Variation A at the time of the negotiations about the 150 m wide strip of land and that, for that reason -

"Agreement therefore if [scil, is] considered flawed and null and void. ... Should Option 2 be adopted, acquisition and compensation will need to be based on General Industrial Zoning valuation and in accordance with The Land Acquisition and Compensation Act. ... ."

The defendants rely on this retreat by Mr Scanlon from his so-called undertaking. Once again, I will return to this when dealing with the issues to which the Scanlon Undertaking is relevant.

84 In the meantime, on 21 May 1999, both Mr Love[116] and his planning consultant, Mr Kraan,[117] made further written and oral submissions to the FAC. In his written submission Mr Love adopted Mr Kraan's submissions in respect of the impact of options 2/5 on quarrying, and added that "[t]he more bits and pieces that are trimmed off this resource, the more marginal it will become".[118] Mr Love also said that the "current Option 2 would see [Clonard] destroyed".[119] Mr Kraan said that Mr Love was "opposed to Options 2 & 5 as they are presented in the Planning Assessment Report and is totally opposed to Option 3. He would reluctantly accept Options 2 & 5 if they were moved further eastward".[120] Mr Kraan went on to say:

"Options 2 and 5 are located on the same alignment where they traverse Mr Love's property. The aerial photograph in Appendix B shows the alignment. This alignment encroaches into the south east corner of the property and bisects the northern part of the property. The impacts of this alignment are as follows:

• Loss of the use of the south east corner of the property;

• Isolation of the north eastern part of the property from the remainder;

• Encroachment into the north eastern part of the proposed extraction area;

• Sterilisation of in excess of 6 million tonnes of basalt rock resource on the eastern side of the gas pipeline by virtue of the need to provide a buffer between the freeway and the quarry;

• Marginalisation of quarrying in the medium term;

• Weakening of medium to longer term competition in the market for quarry products;

• Destruction of the historic Clonard homestead and farm complex;

• Destruction of River Red Gums (some reputed to be 400 years old) to the north of O'Herns Road;

• Significant visual impact due to the elevated nature of the roadway; and

• The fragmentation of the Cooper Street Planning area.

Mr Love strongly opposes Options 2 and 5 because of the above impacts. He would however reluctantly accept either of these options if they were located some 200 metres further eastward generally along the alignment of Option 2 Variation B on Figure C3 in the PAR. This would still result in his property being fragmented, however many of the other impacts would be lessened. This would however result in an increase in the length of the freeway."[121]

85 The new VPP format Whittlesea Planning Scheme was published in the Victorian Government Gazette on 8 July 1999.

86 Following Mr Scanlon's letter of 7 July 1999 there was internal consideration within Vicroads as to how to respond to what were described as Mr Scanlon's very antagonistic and abusive complaints about the impact of option 2 on his development proposals and about Vicroads having allegedly given too much weight to Mr Love's quarrying proposals. On 26 July 1999 Evans commented in a memorandum to a colleague[122] that it was difficult to determine whether Mr Scanlon had a good case and recommended that Vicroads continue to attempt to answer his queries until the outcome of the FAC process was known. Evans concluded: "Once a result is known, positive steps can be taken to help resolve Mr Scanlon's problems".[123]

87 Vicroads (Evans) responded formally on 2 August 1999 to Mr Scanlon's letter of 7 July 1999. In relation to the basis for calculating any compensation for the Scanlon land, Vicroads commented that all[124] acquisition of land for road purposes was "carried out in accordance with the Land Acquisition and Compensation Act 1986".[125]

88 Mr Scanlon continued to express dissatisfaction with matters relating to the By-Pass, including complaints about the way the FAC had responded to his claims and demands.[126] A ministerial briefing note about discussions with Mr Scanlon was sent to Mr Craige, the Minister for Roads and Ports, by the Director of Major Projects at Vicroads on 6 August 1999.[127] At paragraph 10 it stated that once the FAC's recommendations "are known and acted upon by the Government, positive steps can be taken to resolve Mr Scanlon's problems". The recommendation was that the Minister note the situation with respect to Mr Scanlon. File notes of Vicroads (apparently made by Aleksic) indicate that Mr Scanlon was still sounding off until at least 4 November 1999.[128] They also indicate that Mr Scanlon was told repeatedly that the line was moved off Mr Love's land in 1997 because of concerns about compensation costs based in turn on a view that quarrying would be regarded as the highest and best use of Mr Love's land.[129] Mr Scanlon was told that advice in that regard had been received from the Valuer-General,[130] as well as from Vicroads' own property section, from VicRoads' Geotech division and from one John Mitan of the Department of Minerals and Energy.[131]

89 The Victorian Liberal Government went out of office, and a Labor Government headed by Premier Steve Bracks took office, on 18 October 1999.

90 On 1 November 1999 the FAC published its report.[132] The report itself is 216 pages long, plus 74 pages of appendices. As all parties before this Court agree, it represented a vast amount of intensive work by the panel and by many others concerned. The list of parties who made written and/or oral submissions to the FAC is long. They came from a multitude of perspectives.

91 The FAC report contains some important reminders about the breadth of the matters and issues that were raised by the By-Pass proposal, and about the nature of the decision-making process involved. As I have mentioned, the project was entirely federally funded. So Commonwealth laws and policies were relevant.[133] The FAC was required to consider all issues, including environmental issues, against a backdrop of federal, state and local laws and policies.[134] While VicRoads was designated (essentially for federal purposes) as the proponent of the road, the FAC was required to be independent of VicRoads and of all other players. Under its terms of reference it was to report, comprehensively, to the Minister for Planning and Local Government, not to VicRoads or to the Department of Transport. Indeed, in the foreword to the report, the FAC commented that it was faced "with a multitude of diverse, and often conflicting, issues" and that, by and large, Vicroads (and some opponents of the road) "failed to bring a sufficiently comprehensive or sophisticated approach to their analysis of the issues associated with a project of this magnitude, which has such potential for economic benefits as well as for damage to environment values". The FAC assessed the 7 alignment options investigated in the PAR, plus several modifications suggested by submittors (including one suggested by Mr Scanlon[135]). The question of what should be the precise alignment of the road between Cooper Street and O'Hern's Road if Option 2 or Option 5 was chosen was far from being the principal issue before the FAC. While Mr Scanlon may have given close attention to that point in his submissions to the FAC, Mr Love did not, in my view. To a significantly greater extent than Mr Scanlon, Mr Love concentrated on pushing for the road to be kept far away to the west, on or close to the original reservation. He sought strenuously to downplay environmental concerns in that respect. His first alternative position was that the alignment should be moved east to at least as far as the middle of the Scanlon land. He maintained that locating the By-Pass on the 150 metre wide strip on the western edge of the Scanlon land would be very detrimental to his quarrying plans. I will return to Mr Love's strategy in that regard in due course. However the general observations made by the FAC need to be kept steadily in mind in considering the passages from the FAC Report that relate more directly to the present controversy, to which passages I now turn.

92 Under the Chapter Heading "Legislative and Policy Context" and the sub-headings "4.6 Land Use Planning Strategies" and "4.6.1 State Planning Policy Framework (SPPF)", the FAC report said:[136]

"Clause 17.09 deals with extractive industry. The objective is to identify and protect stone resources accessible to major markets and to provide a consistent planning approval process for extraction in accordance with acceptable environmental standards."

"VicRoads has used traditional valuation techniques to assess the likely acquisition costs associated with each of the route options. The Committee has no reason to doubt the reliability of the valuation arrived at as a result. It accepts these figures as being broad brush ... ."

94 At 6.3.4[138] the FAC stated that Mr Scanlon's allegations against Vicroads as to how the relevant lines came to be placed on the Scanlon land rather than the Love land were irrelevant.

95 Under the heading "9.1 Economic Evaluation of Options", the FAC report stated:[139]

"In its discussion about Route Options 2 and 5 at Cooper Street in Section 10.3.3, the Committee has noted that any buffer distances associated with any potential extractive industry on Mr Tom Love's land would need to be accommodated within the Love property itself. The implications of this are that it could substantially lessen the amount of compensation to be paid in the event of the route shown in the PAR for Options 2 and 5 in this location being adopted."

96 Chapter 10 is entitled Land Use Planning. It deals with, among other things, linkages with the surrounding road network. The FAC concluded that the planning scheme amendments for the By-Pass should include provision for either a full diamond interchange or at least a half diamond interchange "at"[140] or "in the vicinity of"[141] O'Hern's Road if one of the easterly options was to be selected. By contrast, the PAR had stated that planning for any such interchange should be deferred. This issue is relevant to the debate before this Court about the question of protecting the Clonard homestead. I will return to it.

97 Further on in Chapter 10 (Land Use Planning), under the heading "10.3.3 Variations to Options 2 and 5 at Cooper Street" the FAC made the following remarks:[142]

"Options 2 and 5, which are identical in this location, are located just inside the western boundary of land owned by Epping Development Park north of Cooper Street. The PAR notes on page 59 that:

Three variations of this route were investigated in order to balance the potential impacts on a proposed quarry and industrial development north of Cooper Street. (Refer to Figure C3 for details.)

Reasons for rejecting variations 'A' and 'B' are listed below:

• 'A' because of its impact on a proposed quarry and possible high compensation costs; and
• 'B' the affected area was subject to proposed rezoning to industrial uses and the variation had a large impact on this development. Compensation costs were also considered.

The adopted alignment was considered a reasonable compromise in terms of balancing impacts on the adjacent developments.

...

Mr Scanlon opposes the route shown in the PAR as it affects his land. He submitted that the route selected, if Option 2 or 5 were chosen, should follow variation 'A' in Figure 8 or preferably a further variation he called the 'ultimate option' shown in Figure 10.

A constraining factor in this location is the high pressure gas pipeline running north/south through Love's property slightly less than 250 metres west of the boundary between Love and Epping Development Park. Variation 'A' would take the freeway between this property boundary and the gas pipeline. The 'ultimate option' would locate the freeway immediately west of the gas pipeline.

Mr Love opposes location of the freeway on his land. Should Option 2 or 5 be adopted, he favours a more easterly route than shown in the PAR, approximating to Variation 'B'. However, he would prefer Option 1 because this would not affect either his existing or proposed extractive industry operations, nor affect his home 'Clonard' located on O'Hearns Road.

In 1998, Mr Love made application for a planning permit for extractive industry in the area outlined on Figure 11. The application was strongly opposed by Mr Scanlon. The Minister for Planning and Local Government 'called in' the application pursuant to Section 97B(1) of the Planning and Environment Act on the basis that 'this application raises a major issue of policy and ... the determination of the application may have substantial effect on the achievement of planning objectives.' A panel hearing in respect of the planning permit application was held in September 1998. The Panel's Report has not been publicly released and advice has been given to the parties that the Minister will decide on the matter once the Hume Freeway alignment is determined.

In considering possible variations to Options 2 and 5 north of Cooper Street, the Advisory Committee must be guided by the objectives it has identified, which are relevant to this issue. The objective that is most relevant is to achieve the best possible integration between transport and land use planning. In this context, the Committee needs to be guided by the Whittlesea City Council's objectives for the Cooper Street Precinct. As noted previously, the vision for Cooper Street set out in the Cooper Street Precinct Strategy is:

To create a vibrant living and working community, which integrates good urban design, effective use of physical services and a significant natural environment of the Merri Creek and nearby Grasslands, to promote the Precinct as a gateway to the Northern Metropolitan growth areas.

Strategies developed to achieve this objective vary according to the opportunities and constraints within various precincts of the overall study area. With respect to the Epping Development Park and Love properties, the Strategy recognises that there is 'opportunity for development as high quality general industrial estate encouraging large scale developments in a well-landscaped environment which can maximise use of the flat topography of the land'.[143] The Strategy goes on to note with respect to the Love property:

It is acknowledged that there is some potential for extraction on the western edge of this land. It is recommended that extraction be generally limited to the more accessible resource within Precinct B4. The majority of land within Precinct B3 should be protected as potentially high quality industrial land, not prejudiced through extractive and subsequent fill in uses. Any extraction sites should be screened with appropriate landscaping and litter control measures.

Also of relevance in the policy context is Clause 17.09 of the SPPF. Whilst the objective is to identify and protect stone resources accessible to major markets and to provide a consistent planning approval process for extraction in accordance with acceptable environmental standards, the Committee draws attention to the following provisions of Clause 17.09-2 relating to buffer areas:

Provision for buffer areas between new extractive industries and sensitive land uses should be determined on the following principles:

• Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit,
• Performance standards for the buffer area are set in accordance with requirements of the Extractive Industries Development Regulations 1996 or a Work Authority or a permit and have regard to the zoning of the land surrounding the extractive industry.
• Activities within land zoned for public use may be taken into considering in determining the buffer areas.

Therefore, in considering route options in this location, the Committee considers that the following issues are relevant:

• Support for industrial development of Epping Development Park (Cooper Street Precinct Strategy).
• Support for protection of stone resources subject to establishment of appropriate buffers (SPPF Clause 17.09).
• Ensuring that appropriate buffers between either the freeway or industrial development are established within land which is owned or controlled by the proponent of an extractive industry (SPPF Clause 17.09-2).

The Committee does not consider it is relevant to examine details about the potential quality or quantity of stone which might be extracted from the Love property or the competitive market in which this stone would be sold.

Variation B

With respect to variation B, the Committee finds nothing in the above matters which would support it. Variation B produces no improved traffic or environmental benefits which are any different to the Option shown in the PAR, so far as the Committee is aware. By contrast, it produces detriments by cutting through Epping Development Park thereby substantially reducing its potential for industrial development.

Route Option Shown in PAR

If the route shown in the PAR is adopted, this would mean that the land in the Industrial 1 Zone owned by Epping Development Park could be fully developed for industrial purposes. Being located immediately adjacent to an important freeway interchange, it would enjoy many commercial benefits as a result of its excellent access, location and visibility. In addition, it would be highly suitable for the possible development of a major facility to service trucks and other vehicles without any of the constraints applicable to freeway service centres as a result of Clause 52.30 of the VPPs.

In terms of the land owned by Love, its current inclusion in a Rural Zone would mean that opportunities for commercial development are limited. It would not be in same position to take advantage of the proximity to the Cooper Street freeway interchange that the Epping Development Park land is as a result of its industrial zoning.

At this stage, Mr Love has indicated that he sees the potential future use of this land as being for extractive industry. This is permitted under the Rural Zone. The planning permit application he has lodged shows the area to be extracted extending to within approximately 20 metres of the property boundary and potential freeway reservation. However, the Committee considers that this is misleading for a number of reasons and that the potential area of extraction, if indeed any is possible, is far more limited than this.

First, any buffer areas must be accommodated within the Love property itself (see Clause 17.09-2 of the SPPF).

Second, the buffer distance that would be required between the area of extraction and the freeway would be in the order of 300 metres. This is based on a letter to the Committee from DNRE dated 3rd June 1999 contained in Appendix L.

This buffer distance is for safety reasons associated with blasting, rather than for visual purposes. The Extractive Industries Regulations 1989, which regulate blasting in Victoria, set performance criteria rather than prescribe set buffer distances. At the hearing, the Committee requested advice from DNRE about the actual distances which compliance with the performance criteria would translate into at this site.

The Committee was advised that, in line with similar advice to the Panel considering the permit application call-in, a 300 metre buffer between the proposed extraction limit and the freeway reservation would be required. This therefore means that no extraction could occur between the property boundary and the gas pipeline, as this distance is less than 250 metres. In fact, the limit of extraction would be slightly further to the west than the line shown in Figure 11 as the limit of the extraction area west of the pipeline.

As a result, if only the western portion of the Work Authority application area can be extracted, the Committee considers this would be compatible with the use of Epping Development Park for industrial purposes and consequently with the Cooper Street Precinct Strategy. The substantial buffer represented by the freeway reservation and the buffer distance within the Love property should mean that there are no adverse impacts on any industrial uses arising from extractive industry operations. There should be no adverse visual impacts as a result of extraction in this location either, due to the opportunities for planting within the buffer to the freeway and along Cooper Street. This would further implement the Cooper Street Precinct Strategy.[144]

The Committee's conclusion is therefore that locating Options 2 and 5 north of Cooper Street as shown in the PAR would meet both State Planning Policy in terms of Clause 17.09 of the SPPF, and local planning policy in terms of the Whittlesea MSS, which supports the development of Cooper Street as an employment area and implementation of the Cooper Street Precinct Strategy.

Variation A

Variation A would locate the freeway on the Love property between Epping Development Park and the gas pipeline. With respect to potential development on the Epping Development Park property, presumably Mr Scanlon hopes that the strip of land still included in the Rural Zone would be rezoned to Industrial 1. The Committee agrees that this is a reasonable assumption and one that would be in accordance with local planning policy.

With respect to future use and development of the Love property, the need for a 300 metre buffer between the freeway and any extraction areas would virtually eliminate any potential for extraction even within the western portion of the Work Authority application area shown on Figure 11.

The Committee does not consider that this implements State Planning Policy with respect to extractive industry so well as the route shown in the PAR. It make [sic] no difference to the implementation of local planning policy when compared to the route shown in the PAR.

...

The Committee's conclusion with respect to the 'ultimate option' is that it would not be in accordance with State Planning Policy with respect to extractive industry because it would sterilise any potential extraction of stone on the Love property west of the gas pipeline. It would be contrary to local planning policy because the lack of an adequate buffer between the freeway and the land fill operations would be detrimental to achieving the Whittlesea MSS objective relating to image and appearance.

...

Committee's Conclusion

Having considered all variations to the route of Options 2 and 5 in the area north of Cooper Street, the Committee's conclusion is that the route shown in the PAR best meets the objective of integrating transport and land use planning. It considers that this route meets the objectives of both State Planning Policy with respect to extractive industry and local planning policy objectives set out in the Whittlesea MSS. At a local level, it also best achieves implementation of strategies set out in the Cooper Street Precinct Strategy. If either Option 2 or Option 5 is selected, its route north of Cooper Street should be the route shown in the PAR."

98 Chapter 12 of the FAC Report deals with Archaeology, Heritage and Culture. So far as Clonard is concerned, the following passages are of particular relevance:[145]

"With respect to European heritage, a number of sites have been identified which relate to earlier farming and grazing activities. None have been recognised under either the Heritage Act 1995 or local planning schemes. The Committee agrees with submittors that this may reflect a lack of recognition of the possible importance of these sites, rather than being an appropriate assessment. Nevertheless, on the evidence presented to it, the Committee considers that the level of significance is unlikely to be more than local.

If it is possible to avoid sites, such as Clonard Homestead, by slight route changes then the Committee believes this should be done. However, it does not consider that any of the sites of European heritage are so significant that they would justify a major realignment of any options or that they are a major feature in the assessment of options. It is a situation where the Committee considers that mitigation measures, such as slight route changes or full documentation before removal, will be a sufficient measure to address any European heritage values.

12.5 ASSESSMENT OF OPTIONS AGAINST HERITAGE OBJECTIVES

...

Option 5

Three Aboriginal sites were recorded and the Clonard Homestead would be directly threatened. In terms of archaeology and cultural heritage, Option 5 affects the lowest number of sites, archaeologically sensitive areas and sites of high significance by completely avoiding the grasslands adjacent to the Merri Creek Corridor and the Creek itself, except for one crossing in the northern section, a less significant area."

99 Chapter 16 sets out the FAC's conclusions and recommendations. It concluded that a modified version of Option 5 was the preferred route. It made 9 recommendations. Numbers 1 and 2 are of particular present relevance. They were as follows:

"1. The Hume Planning Scheme and the Whittlesea Planning Scheme should be amended, without the need for further exhibition, to include the route of Option 5 in a Road Zone (or any other appropriate zone or overlay). The route should be the same as shown in the PAR, except for the section north of Craigieburn Road East. This should be moved further east in order to minimise, so far as possible, any intrusion on the Craigieburn East Grasslands or impact on the Curly Sedge Creek.

2. Provision should be made for a future interchange in the vicinity of O'Herns Road and this should be included in the amendment to the Whittlesea Planning Scheme."

100 On 4 November 1999 the City of Whittlesea wrote to Mr Thwaites, the then newly appointed Minister for Planning, requesting him to refuse the plaintiff's quarry permit application which had been "called in" by the previous Minister.[146] The principal reasons advanced were that the proposed quarrying would compromise the "planned Cooper Street employment area (ultimately accommodating 23,000 jobs)" and would be incompatible with the "recently completed Epping North residential area".

101 On 11 November 1999 Mr Scanlon wrote to Mr Thwaites urging refusal of the plaintiff's quarry permit application.[147] Mr Scanlon claimed that the threat of quarrying in the proposed area was seriously retarding the proposed industrial development on the Scanlon land, at great cost.

102 By memorandum dated 16 November 1999 prepared by an officer of the Department of Infrastructure ("DOI"), Mr Noel Eltringham, the DOI recommended to Minister Thwaites that Mr Love's quarry permit application be refused.[148] The memorandum canvassed the Quarry Permit Panel's report. It stated that, since the completion of that report, the City of Whittlesea had prepared plans for future residential development for approximately 40,000 persons in Epping North. It stated that if Mr Love's application were approved "future development in parts of Epping North and development of proposed industrial land to the south of Cooper Street and west of the site would be delayed until completion of extraction in 2026". It also said that existing and proposed quarries north of Craigeburn Road would meet long term needs for stone resources. Further, it stated that while development in the relevant area had been slowed by uncertainty about the By-Pass alignment and servicing issues, it was anticipated that when those issues were resolved there would be considerable interest in the relevant area for a range of industrial uses. The memorandum noted that the Whittlesea Planning Scheme strongly favoured the retention and development of the relevant land for a range of employment purposes. It observed that the Council had reiterated its opposition to Mr Love's proposal and had stressed that the proposal was contrary to the Cooper Street Precinct Strategy that had recently become part of the Whittlesea Planning Scheme. It referred to "extensive and sustained public opposition" to the proposed quarry by a range of public and private interests, including local residents and landowners, Mr Haermeyer MP, the Merri Creek Management Group and the Northern Hospital.

103 Mr Thwaites accepted the DOI's recommendation. On 25 November 1999 the Minister signed a refusal to grant the permit.[149] It stated 3 reasons for the refusal, namely:

"1. The proposed use is not considered appropriate to the location and would prevent proper future development of the area.

2. The proposed site is not an appropriate use for the land having regard to the Whittlesea Planning Scheme.

3. The proposed use is not an appropriate one for the land because of its effect on the amenity of the neighbourhood."

A copy of the refusal was sent to Mr Love on 25 November 1999.[150] The Minister issued a media release about his decision on 1 December 1999.[151] In substance, it repeated the reasoning contained in the DOI's memorandum.

104 On 3 December 1999 Mr Mike Woolner and Mr Trevor Blake of the DOI sent to Minister Thwaites a memorandum (endorsed by a more senior officer, Mr Leigh Phillips) providing a preliminary briefing on the report of the FAC and foreshadowing the preparation of a more detailed assessment. It recommended that the FAC report not be released until the Minister's assessment was released. The memorandum contained one paragraph about the Love/Scanlon situation. It read:

"23. Messrs Love and Scanlon Considerable debate took place before the Advisory Committee about the impact of Options 2 and 5 on the adjoining properties of Mr Love and Mr Scanlon at Epping. This is related to their interests to develop their respective land for quarrying and industry. Mr Scanlon in particular has been active in opposing a freeway alignment affecting his land. It is understood that Mr Love's application for a quarry has recently been refused. Consequently the constraints on the freeway alignment in this area have been eased"

105 On 15 December 1999 Mr Haermeyer MP issued a public statement welcoming the refusal of Mr Love's quarry permit application and praising Mr Scanlon's efforts and proposals for commercial and industrial development.[152]

106 On 18 January 2000 Mr Haermeyer MP wrote to Minister Thwaites suggesting that, since the quarry permit had "thankfully" been refused, the By-Pass route should revert to the original version, through Mr Love's land.[153]

107 In February 2000 an interdepartmental working party (IDWP) was established to review the report of the FAC and to determine "whether a more integrated approach to corridor development and a more holistic view of the long term development would produce a different outcome".[154] It consisted of representatives of the Department of Natural Resources and Environment (DNRE), Vicroads and the Planning Division of DOI. It was to prepare a report for Ministers which would then be made publicly available, together with the report of the SAC.[155] The Vicroads representatives were Evans, Gray and Aleksic. The DOI representatives were Blake, Woolner and Leigh Phillips (Chair).

108 For the purposes of the IDWP, Vicroads produced various new plans of possible routes.[156] One such plan, which came into existence on or before 15 March 2000, depicts Option 2 North (on Mr Love's land to the east of the gas easement) which was later renamed Option C and then Option Y.[157]

109 By a facsimile dated 30 March 2000[158] Mr Kraan of KLM advised Evans of Vicroads that Mr Love now proposed that the gas pipeline be relocated to the eastern boundary of his property and that extraction take place to the west of the relocated pipeline. Mr Kraan sought a meeting with Evans. A handwritten notation on the facsimile says: "Note I 'phoned Jack Kraan Mon 2/4/00[159] and said I couldn't attend meeting (inappropriate). I thanked him for the information."

110 On the morning of Friday 31 March 2000 (probably before receiving the facsimile from Mr Kraan[160]), Evans sent a facsimile[161] to his superior, Leigh Phillips, providing a table entitled "Craigeburn Bypass - Assessment of Variations". The table compared three options designated B, C and E. The facsimile also included a discussion of issues and options which contained the following item under "Other Issues":

"Line C/Option 2 realigned to avoid Scanlon, relocate onto Love's property between gas pipeline and east boundary (Love's quarry permit refused)."

111 The IDWP met again on 31 March 2000 and discussed a range of issues.[162]

112 On 28 April 2000 Evans sent a memorandum to his superiors concerning the draft report of the IDWP. It noted that Options B, C and E had been renamed X, Y and Z. It compared the estimated costs of four options - Option 5 (the FAC's preference): $310-$365m; Option X: $242-$290m; Option Y: $255-$306m and Option Z: $239-$287M. It indicated a clear preference for Option Y, taking into account a range of factors.

113 In May 2000 the City of Whittlesea published a consultation draft of its Rural Review.[163] It dealt with many issues, including the potential conflict between extractive industry and the desire to protect environmental and landscape values.[164]

114 The final version of the IDWP report was produced on 28 July 2000.[165] It identified three new route alternatives designated as Options X, Y and Z.[166] Option Y was described in summary terms as follows: "Based on previous Option 2, but relocated close to Craigeburn Road East to avoid impact on the nationally significant areas of Craigieburn Grasslands". The reports of the FAC and of the IDWP were made publicly available at about this time.[167]

115 In the IDWP report, under a heading dealing with the impacts of the new options on existing and future land uses, the following appears:[168]

"Cooper Street Industrial Corridor

Options 2, 5, and Y all cross Cooper Street at the same general location. The Advisory Committee did not agree that this would detrimentally sever the industrial area. The development along Cooper Street does not require to be continuous, and it could be argued that having an interchange with the freeway in the centre of the development would provide the optimum level of accessibility and exposure.

The Advisory Committee explored in detail the point at which the freeway crosses Cooper Street, and its impact on the future land aspirations of the affected owners, Mr Love and Mr Scanlon. At the time of the Advisory Committee's investigation, the outcome of the extractive industry application on Mr Love's land was not known. The application was "called in" by the previous Government's Minister for Planning and Local Government, and has been subsequently refused by the current Minister for Planning_. VicRoads considers that moving the alignment west (closer to the gas pipeline in Mr Love's property) is acceptable and would release the Epping Development Park Pty Ltd land (Mr Scanlon's) property for its agreed industrial use. Sufficient space would be available for a buffer of about 200m should a quarry eventuate west of the gas pipeline_."[169]

116 Under the heading "Cultural Heritage Impacts" the IDWP report stated:[170]

"Both Options 5 and Y have a potential impact on the Clonard Homestead and on dry-stone walls near Cooper Street. In summary, Options 5 and Y have similar impacts, and are superior to Options X and Z."

117 Under "Conclusions" the IDWP report stated, among other things:[171]

"• Options 5 and Y are similar in many respects as they follow a similar alignment to the east south of Craigieburn Road East. They are close to equal in terms of ecological and heritage impacts, but Option Y is preferred because it avoids the Craigieburn Road East Grasslands as well as offering a significant cost saving and higher traffic benefits than Option 5; ...

...

The final decision whether to adopt Option X, Y, Z or 5 depends on the relative weights given to consideration of ecological and heritage differences, issues of land use control, project implementation costs, and local impacts."

118 On 11 August 2000 Mr Love's then solicitor, Mr Stevens, submitted to the DNRE a further work plan prepared by Bell Cochrane for the proposed quarry (Extractive Industry Work Authority No. 658).[172]

119 On 21 August 2000, under s 151 of the P & E Act , Minister Thwaites appointed Mrs Helen Gibson, Ms Jenny Love and Mr Geoff Sutherland (the same persons who had constituted the FAC) as an Advisory Committee to hear and consider submissions regarding the By-Pass ("the Second Advisory Committee" or "the SAC").[173]

120 On 15 September 2000 Mr Love lodged with the SAC a personal preliminary written submission[174] expressly responding to the FAC report and the IDWP report. The submission described the analyses of both committees as "flawed" for five reasons, including that "both accept Whittlesea Council's proposition that the Cooper Street area should be converted from extractive industry to other industry despite the demonstrable volume of good quality basalt in a number of properties within it..." The submission persisted with Mr Love's proposition that the old Option 1 (Vicroad's original preferred route) should be selected. The submission also stated:

"[F]rom a heritage viewpoint, options Y and 5 as presented will see the demolition of my family's 'Clonard' homestead and its site which includes a number of ancient red gums in a unique setting.....

[F]rom a quarry market viewpoint, options Y and 5 will see the marginalisation, through a reduction in resource availability of the only significant quarry operation independent of the big three firms (Boral, Pioneer and CSR) in the northern metropolitan area....

[F]rom a planning viewpoint, options Y and 5 will impact on what has evolved as a Special Use Precinct...."

121 On 27 September 2000 a memorandum[175] was prepared by Vicroads (per CEO Colin Jordan and Director of Major Projects Gary Liddle, with apparent input from Evans) for Transport Minister Batchelor regarding a response to a letter dated 15 August 2000 from Mr Scanlon, who had requested an independent review into the process of developing Option 2 which passed through the Scanlon land. Vicroads recommended that the request be refused, and it was. The memorandum contained the following paragraphs (among others):

"3. Mr Scanlon, Managing Director of Epping Development Park Pty Ltd (the owner of the site in question) has been aware of this option since June 1997. Previously, Option 2 had been aligned on adjoining land owned by companies controlled by Mr Tom Love. Mr Love had applied for a planning permit to develop a quarry, and acting on expert geotechnical and property services advice, the alignment was moved to Mr Scanlon's land. This information has been made available (with additional detail) to Mr Scanlon.

4. The independent Advisory Committee appointed by the then Minister for Planning and Local Government to review the proposed bypass (and submissions thereon) held a public hearing in May 1999. In its report (presented in October 1999), the Advisory Committee concluded that the option proposed by VicRoads (which was similar to that shown in the November 1997 Bulletin, but on a straight alignment within the western edge of Scanlon's property) was its preferred solution. Both Mr Scanlon and Mr Love made submissions to the Advisory Committee.

5. Since completion of the Advisory Committee's report, the Minister for Planning has refused the permit application to develop a quarry on Mr Love's land. As a consequence, the current alignment of Option Y (see attached Plan B, similar to previous Option 2 in this location) is now located on the eastern portion of Mr Love's property. Mr Scanlon has been in contact by telephone and indicated that he was happy with this and has sold a large portion of his site."

122 On 13 October 2000 Mr Love lodged a submission prepared by Mr Derek O'Brien, an expert in geology and mining engineering, concerning the Craigieburn Grasslands.[176] In short, Mr O'Brien submitted that the Grasslands were degraded, of no real significance and unworthy of any or any great protection.

123 Vicroads lodged a general submission with the SAC on 23 October 2000.[177] It expressed a preference for Option Z over Option X and for Option Y over Option 5 and expressed no preference as between Options Y and Z. Plans were tendered by Vicroads with the submission.[178] In summarising its position Vicroads said:

"As the Working Party notes, the final decision depends on the relative weight to be given to consideration of ecological and heritage differences, issues of land use control, project implementation costs and local impacts."[179]

124 In commenting on the FAC report, Vicroads said (among other things):[180]

"The other modification the Advisory Committee sought to Option 5 was that provision should be made for a future interchange in the vicinity of O'Herns Road.

Planning for Options 5 and Y include provision for a possible interchange at either O'Herns Road, or more preferably at Harvest Home Lane. The interchange will not be constructed immediately, but provision exists for the interchange to be more formally considered when warranted by traffic demand."

125 Under the general heading "Avoidance/minimising disruption of existing productive land uses", Vicroads said (among other things):[181]

"10.2 Cooper Street Industrial Corridor

The Cooper Street precinct strategy is a joint framework for future planning and development within the study area by Hume and Whittlesea City Councils. Vicroads acknowledges that Cooper Street is an important east/west arterial link from High Street Epping to the Hume Highway at Somerton. Options 5 and Y cross Cooper Street at the same general location. At the previous panel hearing Whittlesea City Council expressed a concern that Option 5 severed the eastern and western parts of this precinct. Vicroads maintains its position put forward at the previous panel hearing that the development along Cooper Street does not have to be continuous and a freeway interchange in the centre of the development could actually provide an optimum level of accessibility and exposure to the development. Vicroads also notes that Whittlesea Council now supports Option Y and view it as creating economic development opportunities and access benefits for Cooper Street. Mr P and Mrs H Haberfield and the Estate of Moffatt McKee, however prefer Options X or Z, as they contend that the freeway would reduce the development potential and flexibility of the Cooper Street area.

Vicroads also notes that Mr Scanlon the Managing Director of Epping Development Park, who opposed some of the options at the previous panel hearing on the grounds that it affected his land now supports Option Y. He sees the freeway connection as being essential to economic development and providing access to the area. Mr Love on the other hand does not support option Y or Option 5, as both of these options pass through his property. He supports a variation of Option 1, which Vicroads notes is not an option which the Advisory Committee has been asked to consider. Mr Love submits that options Y and 5 greatly affect his quarry operations and his access to his resource. However, Mr Love's extractive industry application has now been refused by the Minister for Planning_. Further, the Working Party note in its report that, with a slight alteration of option Y or 5 (move west) all of Epping Development's land will be released and sufficient space would also be available for a buffer of about 200 metres, should a quarry eventuate on Mr Love's land west of the gas pipeline_."[182]

126 On the same day (23 October 2000) the DOI lodged a submission.[183] The author was Woolner, whose position was stated as "Senior Planner, Metro North West Region". The parties have drawn my attention to the following passages in the submission in particular:[184]

"Because of their proximity to the Epping North development area, Options 5 and Y would assist traffic movement in the region, through the greater opportunity to provide accessible connections to the freeway. The Advisory Committee strongly recommended an interchange at O'Herns Road, partly in response to Council's strong support for the O'Herns Road - Findon Road connection as an important east-west route to service future development. Options X and Z could still enable a connection at O'Herns Road (the ramps of which would be close to the grassland) but its distance from the Epping North area (1.7km further west than Option Y) would reduce its convenience for residents.

Cooper Street Industrial Corridor

Options 5 and Y both cross Cooper Street at the same general location. The Advisory Committee did not consider that this would sever the industrial area. It could be argued that having a freeway interchange in the centre of the development would provide the optimum level of accessibility and exposure."

127 On 8 November 2000 Messrs Stevens,[185] O'Brien[186] and Love[187] made presentations in person to the SAC. Mr Stevens made much of the alleged inadequacy of maps produced by others. He himself produced an aerial photo map which clearly showed Option Y as being located entirely on the Love land.[188] I will say more about the submissions of Mr Stevens and Mr Love in due course.

128 A "Further Response and Closing Submission on behalf of Vicroads" was lodged on 10 November 2000.[189] It was prepared by Mr Mark Dwyer, then a solicitor at Freehills, and Aleksic. It stated:

"Essentially, Vicroads position has not changed. Consistent with the working party report, it still prefers Option Y to 5 and Option Z to X, and believes none of the upgrade options on the existing Hume alignment are appropriate."

As to the proposed O'Hern's Road interchange, Vicroads' submission evinced concerns based on both timing and location. It expressed the view that an interchange at O'Hern's Road (as strongly preferred by the Whittlesea Council) would be too close to the proposed interchange at Cooper Street. It suggested that provision be made for a future interchange in the vicinity of O'Hern's Road, the precise location to be determined at a later stage. Turning to Clonard and Mr Love's submission, the Vicroads submission noted that Clonard was recorded on the Victorian Heritage Inventory, but not on the Victorian Heritage Register. The submission continued:

"In any event, whilst Clonnard [sic] is affected by the current alignment of Options Y and 5, the alignment in this area can be modified slightly to avoid any direct impact. The impact on Clonnard primarily arises through the potential for a future O'Herns Road interchange, where the interchange ramps could directly impact on the homestead. If, as VicRoads proposes, this proposed interchange is moved further north to allow for a safe distance from the Cooper Street interchange (including the possibility of a realignment of O'Herns Road in this area), these potential impacts can be avoided. The O'Herns Road interchange is not part of the existing project."

The submission went on to refer to Mr Love's further works approval application No WA 658. It noted that "even under Options Y or 5, further extractive industry on Mr Love's land would be impacted, but is not precluded".

129 On 4 December 2000 Mr Stevens, on behalf of Mr Love, sent a submission to Minister Thwaites requesting that he reconsider application no 704078 (the quarry permit application).[190]

130 On 19 December 2000 Mr Stevens wrote to DNRE attaching a draft work plan prepared by Bell Cochrane for the proposed new basalt quarry.[191] It was asserted in the draft plan that GPU Gasnet Pty Ltd had agreed in principle to the relocation of the gas pipeline and easement to the eastern boundary of the application area.

131 By letter dated 2 January 2001 Minister Thwaites advised Mr Stevens that after considering the additional information submitted, the Whittlesea Planning Scheme and the extent of public opinion on the use of land in the Cooper Street area, he was not willing to reconsider his decision to refuse application 704078 under the Whittlesea Planning Scheme.[192]

132 The report of the SAC was delivered to Minister Thwaites on 3 January 2001.[193] It is over 370 pages long, including its attachments. Again, it covered a multitude of issues. It addressed the criticisms made by the IDWP of the FAC report. It considered the public submissions made to it. A total of 1930 submissions had been received.[194] 91 submittors had appeared at the hearings. The Committee applied an evaluation matrix to the six options that were before it (X, Y, Z, 5, Hume Highway Freeway and Hume Highway Upgrade). It gave scores to the options on each of a range of stated criteria.[195] It expressed a clear preference for Option Y.[196] It also recommended, among other things, that "Vicroads should identify with certainty the future location for an interchange in the vicinity of O'Herns Road. Provision for this should be included in the amendment to the Whittlesea Planning Scheme". In relation to "Heritage", under the sub-heading "6.3.2 Clonard Homestead", it said:[197]

"'Clonard' is Mr Tom Love's family homestead complex on O'Herns Road, which would be affected by Options 5 and Y. In its October 1999 Report the Advisory Committee stated:

If it is possible to avoid sites, such as Clonard Homestead by slight route changes then the Committee believes this should be done. However, it does not consider that any of the sites of European heritage are so significant that they would justify a major realignment of any options or that they are a major feature in the assessment of options. It is a situation where the Committee considers that mitigation measures, such as slight route changes or full documentation before removal, will be sufficient to address any European heritage values.[198]

In relation to 'Clonard', Mr Love has now submitted that his property has been put on the Victorian Heritage Inventory as a link to the first half of this century in the area, and that Options Y and 5 would see it destroyed. The Committee recognises that this listing is significant in the area, but sees no reason to depart from its assessment, quoted above from the October 1999 Report."

In its "Conclusions on Heritage",[199] it said that it did not consider the impact that Options Y or 5 would have on Clonard changed its ranking of options on heritage grounds. Its overall conclusion on heritage was that Option Y would have the least impact of all.

133 Turning to "Land Use Planning", the SAC noted[200] that little had changed in terms of land use planning issues since the October 1999 report of the FAC. In section 8.2.5, under the heading "Land North of Cooper Street", it said:[201]

"On the opposite (northern) side of Cooper Street to the land considered in Section 8.2.4 is land owned by Mr Tom Love and Epping Development Park Pty Ltd (represented by Mr Robert Scanlan [sic]). Both Mr Love and Mr Scanlan made extensive submissions to the first Advisory Committee about the most appropriate location of the freeway alignment north of Cooper Street and in relation to their common property boundary. These submissions were addressed in section 10.3.3 of the October 1999 Report where the Advisory Committee saw no reason to vary the route shown for Options 2 and 5 in the Planning Assessment Report.

Since then, Mr Scanlan has changed his position in favour of that adopted by the Advisory Committee in the October 1999 Report. He now supports Option Y.

Mr Love, on the other hand, maintains his opposition to Option Y (which is effectively the same as Options 2 and 5 in its location). His preference is for Option Z in a modified form. Mr Love was very critical of the way in which planning for the freeway and in connection with the Cooper Street Precinct Strategy has been carried out. His property is currently used for extractive industry and he has sought unsuccessfully to extend these extractive industry operations. He sees Option Y as limiting his potential for expansion. In his view, this is anti-competitive and against the long-term interests of promoting competition within the quarry industry from independent suppliers.

As the Committee has said elsewhere in this Report, it must accept the policies which have been adopted by Government at whatever level. It is not open to the Committee to change those policies. Therefore, to the extent that Mr Love is aggrieved by a perceived anti-extractive industry bias in the City of Whittlesea's Cooper Street Precinct Strategy, that is not a matter which the Committee can influence. With respect to the potential impact of Option Y on future extractive operations within the Love land, the Committee's views have not changed since the October 1999 Report. For the reasons set out in Section 10.3.3 of that Report, the Committee does not consider that a change should be made to the potential alignment of Options Y or 5 immediately north of Cooper Street."

134 One chapter of the SAC report was devoted to economics. It included a table of Vicroads' total estimated costs for each option[202] and a table showing a breakdown of costs. I will refer to Options Y and 5 only. Option Y was estimated at between $255m and $306m; Option 5 between $310m and $365m. The breakdown table showed that the largest element of cost, by far, was for road construction ($144m for Option Y and $187m for Option 5). The respective costs of land acquisition (or "Right of Way") was $27m for Option Y and $31m for Option 5. The SAC noted[203] that the cost of "Right of Way" was based on the Valuer-General's evaluation of land based on current zoning. It continued:

"The current zoning does not always reflect a refined analysis of what the land development potential really is. However the methodology is seen as credible and is consistent across all options. It provides a good basis for comparison between options."

135 On 23 January 2001 Blake sent a memo to Minister Thwaites with an attached draft ministerial assessment of the By-Pass proposal.[204] The memorandum expressed the view that the SAC had provided a soundly argued report that built effectively upon the report of the FAC[205], though a different conclusion had been reached on the basis of the expanded set of options. The memorandum continued:[206]

"The Committee's recommendations are supported, with a few minor variations. The reasoning for this response is set out in the attached draft Assessment."

The memorandum explained that the final assessment would be provided to other decision-makers, including the relevant Commonwealth ministers, as a substitute for a statement under the Environmental Effects Act 1978 (Vic) or the Environment Protection (Impact of Proposals) Act 1974 (Cth), in fulfilment of the "co-operative assessment model" put in place under former Minister Maclellan.[207]

136 The Ministerial Assessment, in its final form, was signed by Minister Thwaites on 20 February 2001.[208] It is 16 pages long. Under cover of a letter of the same date a copy of the Assessment and a copy of the SAC report were sent to the State Minister for Transport, Mr Batchelor.[209] Presumably, copies were also sent to the other addressees named on the cover of the Assessment - the Commonwealth Minister for Environment and Heritage, the Commonwealth Minister for Transport and Regional Services, Hume City Council and Whittlesea City Council - at the same time. The letter to Mr Batchelor stated that, following printing, both documents would be made publicly available, and, indeed, that did occur shortly afterwards.

137 The Ministerial Assessment makes no express reference to the Love land or to the Scanlon land or to the Clonard homestead.

138 The Assessment adopts evaluation criteria which differ somewhat from the matrix applied by the SAC. One criterion is that the road link should avoid or minimise disruption of established productive land uses.[210] The Assessment comments that while "it often will not be possible to avoid adverse impacts on established land uses (eg manufacturing or allied industry, high value agriculture or extractive industry), the relative economic values do need to be considered and every effort made to mitigate or compensate impacts".[211] Option 5 is described as unacceptable because of its "significant impacts on Craigieburn Road East Grasslands and Red Gum/Stony Knoll area" and its "high level of cost relative to only moderate transport benefits".[212] Option Y is described as acceptable because, among many other things, it "would have the least impact on Aboriginal and European cultural heritage of the eastern alignment options" and it "would avoid significant impacts on existing productive land uses in the area" and it "would offer the greatest benefit in supporting local transport needs and land use development potential of the Craigieburn, Epping North and Cooper Street Industrial Precinct areas ... ".[213]

139 As to the alignment, the Assessment expressly adopted the following of the SAC's recommendations, among others:[214]

"• Option Y should be adopted for the link between Craigieburn and the Metropolitan Ring Road.

• The Hume Planning Scheme and the Whittlesea Planning Scheme should be amended, without the need for further exhibition, to include the route of Option Y in a Road Zone (or any other appropriate zone or overlay).

• Vicroads should identify with certainty the future location for an interchange in the vicinity of O'Hern's Road. Provision for this should be included in the amendment to the Whittlesea Planning Scheme."

140 As to planning, the Assessment expressly adopted the following recommendation of the SAC (among others):[215]

"• An Environmental Significance Overlay should be applied to all land on the Register of the National Estate and other areas identified as being of State or National significance."

"In particular, an Environmental Significance Overlay should be applied as soon as possible to areas in the Merri Creek environs that have been determined to be of either National or State conservation significance, where such an overlay does not currently apply. The proposed Craigieburn Bypass and Environs Coordination Group should prepare suitable amendments for the Hume and Whittlesea Planning Schemes."

141 On 21 February 2001 the Premier of Victoria announced in a media release that Option Y had been selected. Brief reasons were given including the statement that "the Government believed 'Option Y' delivered the best combination of transport and economic outcomes, while minimising the impact on the significant grasslands, Merri Creek, and local ecosystems".

142 On or before 26 March 2001 a map showing part of the proposed Public Acquisition Overlay for the By-Pass (being a part which traversed land including the Love land) was produced within the DOI (Map no 16 PAO) for the purposes of the proposed amendment to the Whittlesea Planning Scheme.[217] That amendment, as a whole, was designated as Amendment C 23. A discovered version of Map no 16 PAO includes a handwritten hatched space depicting a small area on Mr Love's land adjacent to the strip of land depicted by the pre-printed Overlay. Near the hatched space is a handwritten annotation "to be included". The hatching and the annotating were done by Mr Woolner. The plaintiff claims that the hatched space represented the bulk of the Clonard homestead complex, and that, were it not for this adjustment, the complex would largely have escaped acquisition. At the hearing he called an expert surveyor, Mr Czirom, to give evidence about this. Mr Czirom's evidence was challenged. I will return to it later.

143 On 2 April 2001 Woolner sent Minister Thwaites a briefing[218] in which he sought the Minister's approval, under s 20(4) of the P & E Act, of Amendment C 22 to the Hume Planning Scheme and Amendment C 23 to the Whittlesea Planning Scheme to allow construction of the By-Pass. These amendments were said in the briefing to give effect to the decision to adopt Option Y and the decision to extend the Environmental Significance Overlay. The Minister was advised that the maps and documentation for these amendments had been completed, and he was asked to formally approve them.

144 On 26 May 2001 Minister Batchelor wrote to Minister Thwaites about matters relating to the By-Pass, including a proposed "modified Y" option that would reduce impact on the existing Whittlesea Gardens.[219] According to the letter, the extra cost of taking this course had previously been estimated at $23m but recent geo-technical information had reduced the estimate to $4m, and an indication had been received that the Federal Government might provide the $4m. Minister Batchelor requested Minister Thwaites to take steps accordingly. He also advised about progress on other issues, including what he called the "location of the O'Herns Road interchange". Finally he advised that Vicroads had "commenced initial activities for the implementation of the Craigieburn Bypass now that funding has been confirmed by the Federal Government".

145 Early on 5 June 2001 Paul Jarman, the Regional Manager, North West Metropolitan Region, of the DOI sent an email to Woolner saying:[220]

"Mike

Please chase the O'Hearns [sic] Road full diamond design from Vicroads as a priority.

I spoke to Minister Batchelor an [sic] Friday night and he is keen for the amendment to be approved with the full interchange in and not to do it as two separate amendments."

146 Half an hour later, Woolner emailed Aleksic to follow up Jarman's request.[221]

147 A couple of hours later again, Aleksic emailed Woolner and Jarman to say that the Planning Scheme Amendment for the By-Pass, excluding the O'Herns Road Interchange, should proceed as soon as possible; and that he expected that the location of the interchange would take at least 3 months to resolve in consultation with themselves and the Whittlesea Council.[222]

148 On 15 June 2001 a version of Amendment C 23 was approved and signed by Minister Thwaites, but it was never gazetted.[223]

149 On 13 August 2001 the Federal Government announced changes in the alignment of Option Y to avoid the Whittlesea Gardens.

150 On 30 August 2001 Woolner sent a memo to Minister Thwaites explaining that, since 15 June 2001, a part of the proposed alignment had been moved 350m west to avoid the Whittlesea Gardens. The project was to be fully funded by the Commonwealth, and the necessary Commonwealth approval for the change had been obtained. Vicroads were wishing to begin construction works at both the north and south ends as a matter of urgency. The Minister was asked to formally repeal the previously approved (but not gazetted) amendments and to approve the amendments in their revised form. He was told that the only change was to some of the amendment maps and that the remaining documents were unaltered. The Minister endorsed the memo by circling "Agree" and signing it.

151 Of the statutory steps still directly attacked by the plaintiff in this proceeding, the first in time occurred on 31 August 2001. On that day Minister Thwaites signed a document entitled "Repeal of an Amendment to a Planning Scheme".[224] That document purported to repeal the amendments approved on 15 June 2001. The Minister also signed a document headed "Preparation of Amendment".[225] That document declared that the Minister had prepared the new version of Amendment C 23. In addition he signed a document entitled "Ministerial Amendment".[226] By that document the Minister purported to exempt himself from the requirements of sections 17, 18 and 19 of the P & E Act and the requirements of the Regulations, and to adopt Amendment C 23 with changes in accordance with s 29 of the Act and to approve the amendment with changes in accordance with s 35 of the Act. In addition, I note that the documents comprising the actual terms of Amendment C 23, including a group of maps, are all stamped "Approved by the Minister for Planning on 31 August 2001".[227] Presumably the Minister took corresponding steps in relation to Amendment C 22 to the Hume Planning Scheme. The plaintiff does not attack Amendment C 22.

152 Notice of approval of Amendment C 23 to the Whittlesea Planning Scheme (and of approval of Amendment C 22 to the Hume Planning Scheme) was given in the Victoria Government Gazette on 4 September 2001.[228]

153 On 4 October 2001, under s 42(1) of the Transport Act 1983 (Vic), the Minister for Transport, Mr Batchelor, approved the purchase and compulsory acquisition of the land required for the By-Pass, including the By-Pass Excision Land (owned by Mr Love) and a small parcel of land within the Scanlon Land (then registered in the name of Epping Development Park Pty Ltd).[229]

154 By a letter dated 7 December 2001 and its enclosures, Vicroads gave formal notice to Mr Love of its intention to acquire the By-Pass Excision Land.[230] (The letter stated that Mr Love would already have been aware of Vicroads' intention in that regard.[231]) One of the enclosures was a formal document entitled "Notice of Intention to Acquire". The plaintiff alleges that the notice failed to meet statutory requirements and was invalid and that the acquisition itself was invalid for that reason (among others). I will return to the form of the notice when dealing with that issue.

155 A notice of acquisition of the By-Pass Excision Land was published in the Victorian Government Gazette under ss 19 and 24 of the Land Acquisition and Compensation Act 1986 on 11 February 2002.[232]

156 On 27 June 2002 the Executive Director of Heritage Victoria notified Mr Love in writing that he had declined to put Clonard and the dry stone wall (which was on the Love land) on the Heritage Register.[233] Reasons were stated.

157 On 26 August 2002 Mr Love appealed to the Registrations Committee of Heritage Victoria against the Executive Director's decision.[234] The Executive Director made a submission opposing the appeal.[235]

158 On 26 September 2002 the Registrations Committee notified Mr Love of its unanimous decision not to include Clonard and the dry stone wall on the Heritage Register but to recommend to the City of Whittlesea that the City consider including them for protection under the planning scheme.[236]

159 On 29 October 2002, after considering the recommendation of the Registrations Committee, the City of Whittlesea resolved not to impose a heritage overlay under the Planning Scheme on Clonard or the dry stone wall.[237]

160 On 11 December 2002 Ms Delahunty, who by then had become the Minister for Planning, approved Amendment C 46 to the Whittlesea Planning Scheme.[238] This Amendment removed the Public Acquisition Overlay and applied a Road Zone to land along the path of the By-Pass. Amendment C 46 came into operation on 13 December 2002, the day it was notified in the Gazette.[239]

161 On 19 December 2002 Mr Love's solicitor, Mr Stevens, wrote a letter to the CEO of VicRoads asserting that the proposed alignment of the By-Pass between Cooper Street and O'Hern's Road was inconsistent with the recommended alignment as found by the SAC and as approved by Minister Thwaites.[240] He reserved Mr Love's rights. He wrote more detailed letters to the relevant Commonwealth Ministers making essentially the same complaint.[241] He urged them to intervene. He asserted that "the proposed Vicroads variation" was not authorised by the Commonwealth and would add "$9,000,000.00" to the land acquisition and project cost due to the loss of basalt quarrying potential.[242] He attributed this figure to a valuation "by one of Australia's foremost experts, a Mr Hocking".[243] He complained that Vicroads had valued the By-Pass Excision Land "at a best use commercial/industrial property valuation" rather than "at quarry rates".[244] The letters do not say, however, that the identification of the proposed route of the alignment had come as a recent surprise.

162 Vicroads took possession of the Bypass Excision Land on 15 January 2003.[245] It did so by reference to a warrant of possession.[246]

163 This proceeding was commenced on 14 February 2003.

164 On 28 February 2003 Vicroads received conditional consent from Heritage Victoria to demolish Clonard.[247] The conditions included that a measured survey and photographic record of the site be made before commencement of development works.

165 An interlocutory injunction protecting most of the Clonard homestead complex was granted by Nettle J on 6 March 2003.[248]

166 On 31 March 2003 a Panel comprising Ms Helen Gibson and another member published their report concerning proposed Amendment C 44 to the Whittlesea Planning Scheme.[249] This Amendment sought to introduce a Public Acquisition Overlay and make other changes to the Planning Scheme to facilitate the future provision of an urban, closed diamond interchange with the By-Pass at O'Herns Road Epping. Mr Love had raised issues with the Panel concerning the route of the By-Pass and the way it affected the extractive industry potential of his land and the Clonard Homestead complex. As to Mr Love's submission, the Panel said in its Executive Summary:[250]

"Assuming that the Craigieburn Bypass will proceed as planned, Love has produced no good reasons why the interchange at O'Herns Road is inappropriate in the location identified in Amendment C44. The Panel rejects his suggestions for an alternative location on the grounds that the disbenefits of the alternative suggested far outweigh the benefits. In addition, it would constitute a transformation of the Amendment that it is not open to the Panel to consider."

The Panel recommended that Amendment C 44 be approved, with one presently irrelevant variation. As to the alignment of the By-Pass, the Panel commented that insofar as Mr Love's submissions were based on section 10.3.3 of the FAC's report, his submissions took that passage of the report out of context.[251] As to Clonard, the Panel expressed some sympathy with Mr Love, and some puzzlement as to why Vicroads had not taken up the comment made by both the FAC and the SAC that if Clonard could be saved by a slight route change then this should be done. However the Panel noted that this comment had been "left only as a suggestion" and had not been translated into a specific recommendation in either of the earlier reports.[252] In any event the Panel found that these matters were basically irrelevant to its consideration of Amendment C 44. It was unable to disregard the declared route of the By-Pass, the current provisions of the Planning Scheme relating to the By-Pass or the Consent to Demolish issued by Heritage Victoria. It had to accept that, based on those matters, Clonard Homestead and much of the Homestead Complex would be demolished. Nothing of what would then remain could appropriately stand in the way of Amendment C 44 on heritage grounds.[253]

167 On 29 April 2003 Amendment C 44 was approved with changes.[254] As a result, subsequently, a very small amount of additional land, affecting Clonard, depicted in the C 44 Panel report[255] as a triangle at O'Hern's Road, was compulsorily acquired by Vicroads.

168 On 15 May 2003 Vicroads became the registered proprietor of the Bypass Excision Land.[256]

169 Notice of approval of Amendment C 44 (for the O'Hern's Road interchange) was given in the Gazette on 22 May 2003.

170 During 2003, Northpoint Enterprise Park Pty Ltd, the corporate vehicle for a joint venture to develop the Scanlon land as a business and industrial park (in which Scanlon remained involved), proposed Amendment C 62 to the Whittlesea Planning Scheme. The proposal was to rezone the abovementioned 150 metre wide strip of land on the western boundary of the Scanlon land from a Rural Zone to an Industrial 1 Zone.[257] Mr Love was the only objector. A panel was appointed to consider the proposal. Its report[258] indicates that Mr Love complained that the proposal was premature for various reasons, including the pendency of the present legal proceeding and of a related Supreme Court challenge by him to Minister Thwaites' decision to refuse his application for a quarry permit. He submitted that the Amendment might prejudice his prospects of obtaining orders requiring the removal of the By-Pass from the land in question.

171 Northpoint Enterprise Park Pty Ltd, as the proponent, had made a written submission to the C62 panel hearing.[259] It was prepared by the abovementioned Mr Mark Dwyer, then a solicitor at Freehills. (It will be recalled that Freehills, through Mr Dwyer, had previously prepared a submission to the SAC on behalf of VicRoads.[260]) In responding to Mr Love's objections, the written submissions had included the following paragraphs:[261]

"5.6 It is not for this panel to try to second-guess the outcomes in the Supreme Court. The panel can only rely on the planning decisions that have actually been made, not on a series of hypotheticals. In essence, what Mr Love appears to be now arguing before this panel is that, if both his actions are successful in the Supreme Court and if the Minister for Planning then makes two different decisions and if VicRoads and the Commonwealth change their decisions on the freeway alignment and if Whittlesea Council and the State Government change their urban growth planning to facilitate new extractive industry in the area and in particular on Mr Love's land, then Northpoint's 150 metre strip of land might still provide an alternative option.

5.7 Even in this extreme hypothetical scenario, Mr Love's assertions require the Panel to accept that Mr Love is altruistically trying to protect the public purse by limiting the compensation which might then have to be paid to Northpoint if the 150 metre strip is acquired with an Industrial 1 zoning rather than Rural Zone. The Panel should note that neither the State Government or VicRoads advance such an argument and, in particular, VicRoads has expressly considered this issue and indicated it does not object to Amendment C62. Moreover, as landowner, Mr Robert Scanlon has previously offered an undertaking to VicRoads that, in the unlikely event the land was required in the future, he would accept a rural valuation."[262]

172 The Panel concluded that the matters raised by Mr Love were too remote from the relevant planning considerations to warrant a recommendation against, or the deferral of, the proposed amendment. The Panel endorsed Amendment C62.[263]

173 Minister Delahunty subsequently approved Amendment C62. Notice of the approval was published in the Government Gazette on 9 December 2004.[264]

174 Many and varied commercial and industrial premises have been erected on the Scanlon land since Amendment C62 was notified in the Gazette. Numerous parties are engaged in businesses operated from those premises. The plaintiff has not sought to join any of the parties concerned as a party to this case. Nor has he ever sought to join Mr Scanlon or any company with which Mr Scanlon was relevantly associated.

175 A freeway service station owned and operated by a party or parties not involved in this case was built near the intersection of the By-Pass and Cooper Street after Amendment C23 was notified in the Gazette. It has been in operation for some years. The plaintiff has not sought to join the owner or the operator as a party to this case.

176 Whatever may have been the focus of Mr Love's submissions to the planning authorities, in this proceeding he complains principally of two things.

177 First, he objects to what he repeatedly calls the "alignment shift", that is to say, a "shift" of the By-Pass alignment from Scanlon's land on to his land, being a shift he characterises as late, unjustified and unexplained. However the expression "alignment shift" is somewhat misleading. There were, of course, numerous suggested alignments considered during the planning process, even during the final stages thereof. At no stage was the matter simply a contest between the Scanlon land and the Love land. Nor, at least in the final stages, was it a question whether a particular alignment should be moved from one to the other. Of the various options considered by the SAC, Option 5 mainly traversed the Scanlon land and Option Y mainly traversed the Love land. The recommendation of the SAC, and the ultimate decision of the Minister, involved a choice between alignments, rather than a shift of alignments. Paragraph 48 of the ASOC attributes to the SAC the making of an "alignment determination" to the effect that the By-Pass alignment should "remain" on the Scanlon land and not be "moved" to the Love land. Had the SAC actually made such a determination one might more readily understand the plaintiff's characterisation of what ultimately happened as involving an "alignment shift" (by Mr Thwaites). But the SAC did not. Contrary to what the plaintiff has alleged for years in this case, including during his counsel's opening address,[265] the SAC was under no illusion about the true location of Option Y. This was belatedly acknowledged by the plaintiff when, during final addresses, his counsel handed up a "clarification" document in which it was said that the plaintiff no longer contended for the matter described as the SAC's alignment determination in paragraph 48 of the ASOC.

178 The second matter complained of by the plaintiff is the fact that the Minister's decision did not protect Clonard. Indeed the plaintiff's counsel said in final address that it was "a gratuitous act of vandalism ... to deliberately choose to destroy that property in the way that was proposed by the C23 amendment".[266] The plaintiff seeks the permanent continuance of the injunction granted by Nettle J.

179 Omitting those (few) matters expressly abandoned by the plaintiff, but still including those allegations contained in the plaintiff's pleadings and picked up (merely as allegations) in his outline of written submissions but not otherwise supported,[267] the remaining issues and sub-issues between the parties are, as I see them, as follows:[268]

(1) Was the decision of Minister Thwaites to make Amendment C23 affected by any administrative law errors?[270]

(1.1) Did Minister Thwaites act for an improper purpose?

Plaintiff's particulars of improper purpose[271]

(1.1.1) To release the 150 metre wide strip of the Scanlon land for industrial use to the benefit of Mr Scanlon or Epping Development Pty Ltd.

(1.2) Did Minister Thwaites take into account irrelevant considerations?

Plaintiff's particulars of irrelevant considerations

(1.2.1) The refusal of the plaintiff's quarry permit application, the matters contained in the briefing note dated 16 November 1999 from Mr Eltringham of DOI to Minister Thwaites recommending the refusal of the quarry permit,[272] and the reference in the IDWP Report to the refusal of the quarry permit;[273]

(1.2.2) The release of the 150 metre wide strip of the Scanlon land for industrial use to the benefit of Mr Scanlon or Epping Development Pty Ltd;

(1.2.3) The alleged "constraints" upon the alignment of the By-Pass referred to in Woolner's 18 November 1999 briefing[274] and Blake's 3 December 1999 briefing.[275] The Scanlon Undertaking having been given, there were no "constraints" on the alignment of the By-Pass in the relevant area;

(1.2.4) The allegedly "agreed industrial use" of the 150 metre wide strip referred to in the IDWP Report,[276] and the advice impliedly given to the Minister by that Report (as set out in paragraph 154 of the ASOC). The Scanlon Undertaking had been given and there was no "agreed industrial use" for the 150 metre wide strip.

(1.2.5) The matters raised by Mr Haermeyer, including opposition to Mr Love,[277] and his desire that the By-Pass be located on Mr Love's land.[278]

(1.3) Did Minister Thwaites fail to take into account relevant considerations?

Plaintiff's particulars of relevant considerations

(1.3.1) That Vicroads, acting on expert geotechnical and property services advice, had previously moved the alignment of the By-Pass in the area of the proposed quarry onto the 150 metre wide strip of the Scanlon land;

(1.3.2) That Vicroads, without relying upon (or, indeed, receiving any) expert geotechnical or property services advice, moved the alignment of the By-Pass from the 150 metre wide strip of Scanlon's land and wholly onto the Love land;

(1.3.3) That at all material times an alternative alignment a short distance to the east of the relevant part of the Love land was available for the purpose of the construction of the By-Pass and for which the potential compensation costs (which, by reason of the Scanlon Undertaking, was at rates reflecting the General Farming Zone) was far less than the potential cost of constructing the By-Pass on the Love Pre-Acquisition Land (for which the compensation cost would be millions of dollars);

(1.3.4) That moving the By-Pass from the 150 metre wide strip of the Scanlon land and wholly onto the Love Pre-Acquisition Land would virtually eliminate the potential for commercial extraction of the stone resource. This was inconsistent with sections 4(1)(b) and 12(2)(c) of the P & E Act and the need in this case to exercise available statutory power positively so as to protect the stone resource by an alignment design and location having that effect. It was also inconsistent with the Quarry Panel's 1998 Report, the VicRoads PAR, the FAC Report and the SAC Report (and, in the latter case, especially with the statement therein that "For the reasons set out in Section 10.3.3 of the [FAC] Report, the Committee does not consider that a change should be made to the potential alignment of Options Y or 5 immediately north of Cooper Street.");

(1.3.5) The economic benefits of price competition in the supply of basalt construction material and that it was in the present and future interest of all Victorians that the Stone Resource be available for exploitation so as to maintain price competition between suppliers of basalt to the Melbourne Metropolitan construction industry;

(1.3.6) That part of the Clonard Homestead Complex was situated on the relevant part of the Love Pre-Acquisition Land. That was inconsistent with the need in this case to exercise available statutory power positively so as to protect the Clonard Homestead Complex by an alignment design and location having that effect. It was also inconsistent with the FAC Report[279] and the SAC Report;[280]

(1.3.7) The need to apply prudently the Commonwealth funds to be advanced to VicRoads for the acquisition of land necessary for the By-Pass; and

(1.3.8) That it was reasonably foreseeable that Mr Love would suffer substantial injury, loss and damage (including the loss of the stone resource).

(1.4) Did Minister Thwaites act in the absence of, or in excess of, power?

Plaintiff's particulars as to power

This allegation depends entirely on matters relied upon under other headings. No other matters are relied upon.

(1.5) Was the Minister's decision to make Amendment C23 manifestly unreasonable?

Plaintiff's particulars of unreasonableness

This allegation relies on a combination of all of the matters given as particulars of improper purpose, the taking into account of irrelevant considerations, the failure to take into account relevant considerations and Minister Thwaites' absence of, or acting in excess of, power. The plaintiff alleges that the decision taken by the Minister was so unreasonable that no reasonable Minister could have taken it; and that the decision to approve the placing of a public acquisition overlay on the Bypass Excision Land was one devoid of any plausible justification.

(1.6) Was Minister Thwaites required to do more than he did by way of personal preparation of Amendment C23?

Plaintiff's particulars as to the need for (more) personal preparation

(1.6.1) As a matter of construction of sections 8, 9 and 188 of the P & E Act, the preparation of the amendment was a non-delegable power, discretion or function;

(1.6.2) Alternatively, the power was delegable by instrument under section 186 of the P & E Act but Minister Thwaites did not delegate it;

(1.6.3) This was not a case where the so-called "Carltona principle" could apply. The "Carltona principle" has application only in cases where large numbers of administrative actions of a "ministerial" nature are envisaged, so that it is a matter of mere administrative convenience or practical necessity that powers be devolved among officers or employees of a government department. The case where a Minister determines to act as a "planning authority" and to take responsibility for preparing the amendment to a planning scheme is not such a case;

(1.6.4) East Melbourne Group Inc v Minister for Planning[281] was wrongly decided (on this point). The decision does not provide any reasoned analysis of sections 186(1) or 188 of the P & E Act or the relevant authorities.

(1.7) Was there a denial of procedural fairness to the plaintiff in connection with the making of Amendment C23?

Plaintiff's particulars of denial of procedural fairness

(1.7.1) The plaintiff was not given any or any sufficient opportunity to be heard in relation to Amendment C23 having regard to:

(a) the alleged greater impact on Clonard of the second version of Amendment C23 compared with the (ungazetted) first version;

(b) the effect of Environmental Significance Overlay ESO3 which was applied to a part of the Love Pre-Acquisition Land;

(c) the effect of the Design and Development Overlay DDO2 which was applied to a part of the Love Pre-Acquisition Land.

(2) Was Minister Batchelor's approval (in October 2001) of the purchase or compulsory acquisition of the Bypass Excision Land affected by any administrative law errors?[282]

(2.1) Did Minister Batchelor act for an improper purpose?

Plaintiff's particulars of improper purpose

(2.1.1) To release the 150 metre wide strip of the Scanlon land for industrial use to the benefit of Epping Development Pty Ltd.

(2.2) Did Minister Batchelor take into account irrelevant considerations?

Plaintiff's particulars of irrelevant considerations

(2.2.1) The refusal of Love's quarry permit application;

(2.2.2) The release of the 150 metre wide strip for industrial use for the benefit of Scanlon or Epping Development Pty Ltd;

(2.2.3) That, on or before 27 September 2000, Scanlon had been in contact with Vicroads and had:

(a) indicated that he was happy with the current alignment of Option Y being located on the eastern portion of the Love Pre- Acquisition Land; and

(2.2.4) Vicroads' "20 September 2001 briefing"[283] and "Vicroads 20 September 2001 advice",[284] each being implicitly to the effect that the Minister had power under s 42 of the Transport Act 1983 to approve the purchase or compulsory acquisition of the Bypass Excision Land and to the effect that Vicroads had the power (with such approval) to purchase or compulsorily acquire that land, whereas Vicroads did not have the power to give the briefing or the advice because:

(a) none of the By Pass Excision Land was necessary for the purpose of the By-Pass;[285]

(b) VicRoads could not commence to acquire an interest in the land because Amendment C23 was unlawful and of no effect;

(2.2.5) That Minister Thwaites had purported to reserve the By Pass Excision Land for purchase or compulsory acquisition when, for the reasons earlier set out, the purported reservation was unlawful and of no effect;

(2.2.6) Matters raised by Mr Haermeyer and by Minister Batchelor himself.[286]

The plaintiff asserts that the matters referred to in items 2.2.1, 2.2.2, 2.2.3 and 2.2.6 were simply irrelevant and that the matters referred to in items 2.2.4 and 2.2.5 were "demonstrably incorrect".

(2.3) Did Minister Batchelor fail to have regard to relevant considerations?

Plaintiff's particulars of relevant considerations

(2.3.1) The same 8 considerations allegedly not taken into account by Minister Thwaites, which are listed above as items 1.3.1 - 1.3.8.

(2.3.2) The matters set out in ss 16(3)(b), (n), (o), (q) and (r) of the Transport Act 1983.

(2.4) Did Minister Batchelor act in the absence of, or in excess of, power?

Plaintiff's particulars of absence or excess of power

(2.4.1) The plaintiff relies on the matters set out above as items 2.1-2.3 and the particulars thereunder, and[287] the allegation that none of the By Pass Excision Land was necessary for the purposes of the Craigieburn Bypass.

(2.5) Was Minister Batchelor's decision manifestly unreasonable?

Plaintiff's particulars of unreasonableness

(2.5.1) The plaintiff relies on all of the matters alleged against Minister Batchelor as set out above and submits that his decision was so unreasonable that no reasonable Minister could have taken it and that the decision to approve the purchase or compulsory acquisition of the By Pass Excision Land was devoid of any plausible justification.

(a) Notice of Intention to Acquire;

(b) Notice of Acquisition;

(c) Acquisition of the By Pass Excision Land; and/or

(d) "decision to demolish the Clonard Homestead Complex".

affected by any administrative law errors?[288]

(3.1) Was Vicroads in breach of common law duties when it gave "Vicroads' 20 September 2001 briefing" and "Vicroads 20 September 2001 advice" to Minister Batchelor?

Plaintiff's particulars of VicRoads' breach of duties in relation to the briefing and the advice

(3.1.1) Although the plaintiff seeks no administrative law remedies in respect of the briefing or the (implied) advice in themselves, he alleges that Vicroads owed "common law" duties of the kinds recognised in administrative law when it gave the briefing and the advice.[289] He submits that the briefing and the advice took into account irrelevant considerations - in particular, Minister Thwaites' purported reservation of the land - and failed to take into account relevant considerations, including:[290]

(a) that part of the By-Pass Excision Land in the vicinity of O'Herns Road (upon which substantial parts of the Clonard Homestead Complex were situated) was not required for the purpose of the By-Pass because it was not on the alignment of Option Y recommended by the SAC and adopted by Minister Thwaites;

The plaintiff also submits that the briefing and advice were beyond power because none of the Bypass Excision Land was necessary for the purpose of the By-pass and because Amendment C23 was unlawful and of no effect. The plaintiff further submits, relying on the same matters, that the briefing and advice were manifestly unreasonable.

(3.2) Were the Notice of Intention to Acquire and the Notice of Acquisition ("the Notices") for an improper purpose?

Plaintiff's particulars of improper purpose

(3.2.1) To release the 150 metre wide strip of land for industrial use to the benefit of Epping Development Pty Ltd.

(3.3) Did the Notices take into account irrelevant considerations?

Plaintiff's particulars of irrelevant considerations

(3.3.1) The refusal of Love's Quarry Permit Application;

(3.3.2) The release of the 150 metre wide strip for industrial use to the benefit of Epping Development Pty Ltd;

(3.3.3) That, on or before 27 September 2000, Scanlon had been in contact with VicRoads and had:

(a) indicated that he was happy with the current alignment of Option Y being located on the eastern portion of the Love Pre- Acquisition Land; and

(3.3.4) The "VicRoads 20 September 2001 briefing" and the "VicRoads 20 September 2001 advice" (with their aforesaid alleged defects).

(3.3.5) That Minister Thwaites had purported to reserve the Bypass Excision Land (the same being invalid for the reasons previously stated).

(3.4) Did the Notices fail to take into account relevant considerations?

Plaintiff's particulars of relevant considerations

(3.4.1) The same considerations allegedly not taken into account by Minister Batchelor, referred to above in item (2.3.1).

(3.5) Were the Notices beyond Vicroads' power?

Plaintiff's particulars as to power

(3.5.1) The plaintiff relies on the matters already referred to in and under items 3.2, 3.3 and 3.4 above.

(3.6) Were the Notices manifestly unreasonable?

Plaintiff's particulars of unreasonableness

(3.6.1) The plaintiff relies on the matters already referred to in and under items 3.2, 3.3 and 3.4 and 3.5 above.

(3.7) Did the Notice of Intention to Acquire contain the details required by ss 8(1()c) and/or (d) of the Land Acquisition and Compensation Act 1986 (LACA)?

(3.8) If the Notice of Intention to Acquire was defective, was the Notice of Acquisition thereby rendered defective?

(3.9) For the reasons mentioned in (3.7) and (3.8), did VicRoads breach its duty not to exercise its power to compulsorily acquire the By Pass Excision Land without first complying with sections 6 and 8 of the LACA?

(3.10) Did VicRoads make a decision appropriately characterised as "a decision to demolish the Clonard Homestead Complex"?

(3.11) Was the "decision to demolish" made for an improper purpose?

Plaintiff's particulars of improper purpose

(3.11.1) To release the 150 metre wide strip for industrial use to the benefit of Epping Development Pty Ltds;

(3.12) Was the "decision to demolish" affected by irrelevant considerations?

Plaintiff's particulars of irrelevant considerations

Items (3.3.1) - (3.3.5) are repeated.

(3.13) Was the "decision to demolish" affected by a failure to take into account relevant considerations?

Plaintiff's particulars of relevant considerations

The considerations particularised at item 3.4.1 above are repeated.

(3.14) Was the "decision to demolish" beyond power?

Plaintiff's particulars as to power

The plaintiff relies on all the matters alleged in and under items 3.1 to 3.13, and[291] the allegation that none of the By Pass Excision Land was necessary for the purpose of the By-Pass.

(3.15) Was the "decision to demolish" so unreasonable that no statutory corporation in the position of VicRoads would have made it?

Plaintiff's particulars of unreasonableness

The plaintiff relies on the matters set out above in relation to improper purpose, irrelevant considerations, relevant considerations and lack of power in connection with the "decision to demolish".

(4) Was Minister Delahunty's approval (between October and December 2002) of Amendment C46 to the Whittlesea Planning Scheme (so as to introduce the relevant Road Zone) affected by any administrative law errors?[292]

Plaintiff's particulars as to administrative law errors

The plaintiff effectively repeats against Minister Delahunty most of the allegations of administrative law error that he makes against Ministers Thwaites and Batchelor. The only additional, or arguably additional, allegations are:

(a) That she wrongly took into account that she "wished" industrial development to take place on the 150 metre wide strip of the Scanlon land[293] and

(b) That she failed to take into account the "Second Advisory Committee Report Inconsistency".[294]

(5) Was Minister Delahunty's approval (on 9 December 2004) of Amendment C62 to the Whittlesea Planning Scheme (so as to rezone the 150 metre wide strip of the Scanlon land) affected by any administrative law errors?[295]

Plaintiff's particulars as to administrative law errors

Again, the plaintiff effectively repeats against Minister Delahunty most of the allegations of administrative law error that he makes against Minister Thwaites and Minister Batchelor. Again, the only additional, or arguably additional, allegations are the two allegations set out above in paragraphs (a) and (b) of the particulars under issue 4.

(6) Is any administrative law error that was made in this case of such a kind that, apart from questions of indefeasibility of title, estoppel, laches or other discretionary considerations, it would produce invalidity?

(7) Is any defect in the process of acquisition by the Roads Corporation of the By Pass Excision Land cured by indefeasibility of title?

(8) Is any administrative law claim of the plaintiff defeated by estoppel or laches or other discretionary considerations?

Negligence claims against VicRoads[296]

(9) Did VicRoads owe the plaintiff any, and what, duty of care -

(a) in connection with the work of the IDWP, in relation to advising Minister Thwaites about the "alignment shift"?

(b) in connection with the work of the SAC, in relation to advising the SAC as to the location of the proposed alignment of Option Y or as to other "critical" matters, including the Scanlon Undertaking?

(c) in connection with the SAC Report, in relation to detecting an alleged inconsistency in the Report ("the Second Advisory Committee Inconsistency") being an alleged inconsistency between its reasoning (which allegedly tended to indicate that the By-Pass should be located on the Scanlon land rather than the Love land) and its recommendation (that Option Y be adopted)?

(d) in connection with "Vicroads 20 September 2001 Briefing" and "VicRoads 20 September 2001 Advice" to Minister Batchelor, in relation to the soundness of the alleged implied advice about the lawfulness or appropriateness of the proposed acquisition of the By-Pass Excision Land?

(10) Did VicRoads breach any such duty of care?

(11) Did any such breach cause relevant damage to the plaintiff?

Claims in trespass and nuisance against VicRoads[297]

(12) Assuming administrative law error, and assuming that neither indefeasibility nor discretionary considerations bar the plaintiff's claims, to what extent, if any, are the plaintiff's claims in trespass and nuisance defeated by the absence (if any) of a right in the plaintiff to immediate possession of parts of the By Pass Excision Land?

Claims in negligence against State of Victoria[298]

(13) Did the State of Victoria (itself) owe the plaintiff a duty of care in relation to the preparation of "advice" by the IDWP to Minister Thwaites concerning the "alignment shift"?

(14) Did Woolner and/or Blake, in their official capacities as members of the IDWP, personally owe a duty of care to the plaintiff in relation to the preparation of "advice" to Minister Thwaites concerning the "alignment shift"?

(15) In either case, was there a breach of the alleged duty by the giving of negligent advice to Minister Thwaites as alleged?

(16) Did any such breach cause relevant damage to the plaintiff?

(17) Is the State of Victoria vicariously liable for the alleged negligence of Woolner and/or Blake in connection with the work of the IDWP in relation to the "alignment shift"?

(18) Did Blake (personally) owe the plaintiff a duty of care in providing his briefings to Minister Thwaites of 23 January 2001 and 13 February 2001 relating to the Ministerial Assessment?

(19) Did Blake breach his alleged duty of care to the plaintiff by failing to identify the "Second Advisory Committee Inconsistency" and by failing to inform Minister Thwaites of it in connection with the preparation of the Ministerial Assessment?

(20) Is the State of Victoria vicariously liable for the alleged negligence of Blake in relation to the "Second Advisory Committee Inconsistency" and the Ministerial Assessment?

180 The plaintiff asserts that Minister Thwaites acted for an improper purpose in making Amendment C23, namely to release the 150 metre wide strip of the Scanlon land for industrial use to the benefit of Mr Scanlon or Epping Development Pty Ltd.

181 I accept that "private economic considerations are not relevant in the exercise of discretions pursuant to the [P &E Act]".[299] And I accept that Mr Scanlon lobbied long and hard for decisions that would facilitate his plans for the commercial and industrial development of the Scanlon land (just as Mr Love lobbied long and hard for decisions that would facilitate his plans for quarrying on his property). But there is no basis for a finding that Mr Thwaites or anyone else whose conduct might conceivably be attributed to Mr Thwaites ever took any steps related to Amendment C23 with a purpose to confer a private financial or other benefit on Mr Scanlon or Epping Development Pty Ltd or any associated entity. To the contrary, the evidence as a whole indicates strongly that all concerned at VicRoads and within the relevant Departments - and Minister Thwaites - were intent on achieving the best outcome in the public interest, on the basis of proper planning principles, and in an even handed way. If, incidentally, the ultimate outcome benefited Mr Scanlon or Epping Development Pty Ltd, it matters not.[300] There was, of course, nothing improper about adopting a view that the remainder of the Scanlon land should be released for industrial use. The Scanlon land as a whole had been earmarked for industrial and commercial uses by the Cooper Street Precinct Strategy. A public benefit arising from the use of land other than land directly affected by a planning amendment is not, or is not necessarily, an extraneous consideration.[301] In any event, until the final decision was made, the Scanlon land itself was a potential subject of the anticipated By-Pass planning scheme amendment.

182 It is unnecessary to consider whether the recent judgment of the High Court in Fazzolari v Parramatta City Council[302] bears on the submission of the defendants that an unauthorised purpose will not invalidate a statutory decision involving the resumption of land as long as the "substantial purpose" or the "dominant purpose" is lawful.[303] It remains clear that an improper purpose for the exercise of a statutory power will not lightly be inferred and, because of the presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power.[304] In this case I see no basis at all for the suggested inference.

183 This is not gainsaid by the letter from Vicroads to Scanlon's consultant, Mr Masten, of 20 October 1997[305] stating that should Option 2 be recommended by the FAC the alignment would be reviewed with a view to minimising the impact on the property (but with due regard to other properties). At that time the relevant alignments (Options 2 and 5) passed through the middle of the Scanlon land, significantly jeopardising its potential for industrial development. Proper planning considerations could wholly account for the terms of the letter. I see no reason to read it otherwise. Mr Leo Stella was named in the letter as one of the contact officers at Vicroads. The plaintiff himself tendered affidavits by Mr Stella and Mr Masten and called them both as witnesses. There was no suggestion by either of them, nor was it put to either of them, that there was anything untoward about the letter of 20 October 1997. Further, it was written almost 4 years before Amendment C23 was made.

184 The same observations apply to the letter from Mr Stella to Mr Masten of 12 November 1997 in which it was confirmed that Vicroads had moved the relevant alignment to the western edge of the Scanlon land and in which the comment was made:

"This should assist by not severing the property as was proposed in the previous alignment."[306]

185 About two years later, on 26 July 1999, after a period of intense complaining by Mr Scanlon about alleged favouritism towards Mr Love in relation to the events which had led to the retention of the 150 metre wide strip in the farming zone, Mr Evans of VicRoads suggested in an internal memorandum to the Director of Major Projects[307] that at a specified later stage "positive steps can be taken to help resolve Mr Scanlon's problems". The Director of Major Projects used the same form of words in the Ministerial briefing note sent to Minister Craige on 6 August 1999.[308] It is not clear what kind of "positive steps" Mr Evans or the Director of Major Projects had in mind. However, I infer that they did not envisage that the "positive steps" would have any impact on the anticipated planning decisions themselves. They both expressly related the suggestion to the situation that would obtain after the relevant planning decisions were made. In the internal memorandum Mr Evans spoke of "positive steps" being taken "once the outcome of the FAC process was known".[309] In the briefing to the Minister the Director of Major Projects was even clearer, in that the Director spoke of "positive steps" being taken once the FAC's recommendations "are known and acted upon by the Government".[310] In referring to "positive steps" they may well have been referring simply to compensation. I note that in Mr Evans' letter to Mr Scanlon of 2 August 1999[311] responding to Mr Scanlon's complaints about zoning Mr Evans said that all acquisition of land for road purposes was "carried out in accordance with the Land Acquisition and Compensation Act 1986". In any event, this episode, too, was remote in time, and remote generally, from Mr Thwaites' decision of 31 August 2001 on Amendment C23.

186 Next, the plaintiff refers to the facsimile from Evans to his superior, Phillips, of 31 March 2000 which contained the following words:[312]

"Line C/Option 2 realigned to avoid Scanlon, relocate onto Love's property between gas pipeline and east boundary (Love's quarry permit refused)."

The plaintiff emphasises the expression "to avoid Scanlon". But context is everything. To my mind, the expression "to avoid Scanlon" serves in its context merely to tell the reader what has been done, not the reason for it. The fact is that the line had been moved in such a way as to avoid Mr Scanlon's property (and to relocate it onto Mr Love's property). It seems to me that Mr Evans was, first, merely reporting this. He then went on to give the reason - Mr Love's quarry permit had been refused. I will in due course deal with the question whether this was an irrelevant consideration, but for the moment it is enough to notice that it displaces any suggestion that might otherwise arise from this facsimile that Mr Evans was harbouring the alleged improper purpose.

187 My reading of the facsimile is confirmed, I believe, by subsequent documents. The critical part of the IDWP report of 28 July 2000 refers to the fact that, after the FAC Report was published, Mr Love's quarry permit application was refused. The IDWP Report then immediately proceeds:

"VicRoads considers that moving the alignment west (closer to the gas pipeline in Mr Love's property) is acceptable and would release the Epping Development Park Pty Ltd land (Mr Scanlon's) property for its agreed industrial use."

The IDWP report indicates that its authors believed, rightly or wrongly, that the whole of the Scanlon property already had an "agreed industrial use", and that the refusal of the quarry permit had eliminated or substantially diminished the prospects of using the relevant portions of the Love land for quarrying in the foreseeable future. The authors apparently believed that the long-standing and hard fought dispute as to whether quarrying or industrial development should be preferred in the area had, to that extent, been resolved in favour of industrial development. That the authors of the IDWP Report (including Mr Evans) had these beliefs only tends to confirm that the alleged improper purpose was not present.

188 The Vicroads memorandum of 27 September 2000 to Mr Batchelor[313] points in the same direction. It appears that Mr Evans had input into this memorandum, because the name Evans is included in the word processing endorsement at the foot of one of the pages,[314] and because the subject matter had been within Mr Evans' responsibilities. The memorandum included a reference to the fact that Mr Love and Mr Scanlon had made competing submissions to the FAC. It then said, in paragraph 5, that since the completion of the FAC Report Mr Love's quarry permit application had been refused by the Minister for Planning. "As a consequence", it continued, "the current alignment of Option Y ... is now located on the eastern portion of Mr Love's property". This explanation is fully in line with my interpretation of Mr Evans' facsimile of 31 March 2000 and with the tenor of the IDWP report. It betokens no improper purpose.

189 Finally, in this regard, the plaintiff draws attention to the last sentence of paragraph 5 of VicRoads' memorandum of 27 September 2000, which reads:

"Mr Scanlon has been in contact by telephone and indicated that he was happy with this [the fact that Option Y is now located on the eastern portion of Mr Love's property] and has sold a large portion of his site."

I see nothing of concern in this sentence. Mr Scanlon may have been happy about the location of Option Y and may have managed to sell a large portion of his property, but there is nothing to indicate that these things were any more than subsequent incidents of the development of the new alignment as notified publicly in the IDWP Report. There is nothing to suggest that the purpose of the development of the new alignment was to provide a private benefit to Mr Scanlon or to any entity associated with him.

190 The allegation that Minister Thwaites acted for an improper purpose is rejected.

191 To successfully impugn an administrative decision on the "irrelevant considerations" ground, a challenger must satisfy the Court of three things:

(a) that the particular consideration was in fact taken into account;

(b) that the consideration was irrelevant, in the sense that under the applicable statutory provisions the taking into account of the consideration was impermissible; and

(c) that the applicable statutory provisions have the effect that taking the consideration into account will result in invalidity.

The first of these requirements needs no further discussion.[315] The second requirement is stated by Aronson, Dyer and Groves in their leading Australian work on administrative law[316] as follows:

"Not only must the consideration have been irrelevant, but the Act must have forbidden its consideration."

The correctness of this statement is borne out by ample authority. In Neat Domestic Trading Pty Ltd v AWB Ltd,[317] in reference to the designated role of a certain company ("AWBI") under Australian statutory export wheat marketing arrangements, Gleeson CJ said (on the express assumption that what was involved was a decision of an administrative character, being an exercise of a discretionary power[318]):

"It is to the provisions of the Act that one must look for some warrant for concluding that a particular consideration is obligatory, or available, or extraneous [Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 502 per Dixon J]. Judicial review is not an invitation to judges to decide what they would consider fair or reasonable if they were given the function conferred upon AWBI. The appellant might genuinely believe that the system is unfair. A judge might share that opinion. Nothing follows from that. The question is what, if anything, the Act requires, or permits, or forbids AWBI to take into account in giving effect to its role in the system."

Likewise, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[319] Mason J said:

"In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [(1979) [1979] HCA 62; 144 CLR 45, at pp 49-50], adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [(1937) [1937] HCA 15; 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning [(1947) [1947] HCA 21; 74 CLR 492, at p 505]."

The third requirement is stated by Aronson et al in the following terms (with equal application to the ground of failing to take into account relevant considerations):[320]

"Relevancy and its opposite are defined ultimately by the Act which prescribes what must or must not be considered. More than that, for these grounds to apply, the Act must be seen to stipulate that breach of such of its relevancy criteria as are in question is meant to result in invalidity."

192 Further, "when a decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion".[321]

193 I turn to the plaintiff's list of allegedly irrelevant considerations particularised above.

194 The first is, in substance, the fact that the quarry permit had been refused. In all the circumstances it seems reasonable to accept that Minister Thwaites actually did take this into account or should be deemed to have taken it into account. After all, Minister Thwaites himself had made the refusal decision in late 1999. However the refusal of the quarry permit was not irrelevant, much less was it a forbidden consideration. It was reasonable for the Minister to adopt the view that the refusal had at least reduced the prospects for using the relevant portions of the Love land for quarrying. The plaintiff has not pointed to any express statutory provision that directly or indirectly forbade the taking into account of the refusal of the quarry permit nor has he articulated any argument that the statutory scheme as a whole, or any implied provision, did so. This ground is rejected.

195 The second matter is the release of the 150 metre wide strip of the Scanlon land for industrial use "to the benefit of Mr Scanlon or Epping Development Pty Ltd". This is pleaded in the same language as the improper purpose allegation. Hence I understand it to refer to the same thing, namely a purpose to confer a private benefit. I have found that there is no basis for a finding of such a purpose. Nor is there any basis for a finding that Minister Thwaites took into account private benefit for Mr Scanlon or Epping Development Pty Ltd as a factor in favour of locating the By-Pass where it was ultimately located by Amendment C23. This ground is rejected.

196 Third, the plaintiff alleges that Minister Thwaites wrongly took into account "constraints" upon the By-Pass alignment referred to in the two 1999 briefings mentioned in the particulars. He alleges that in circumstances where the Scanlon Undertaking had been given, there were no "constraints" on the alignment in the relevant area. The "constraints" referred to in the two briefings were constraints due to the prospects and plans for extended quarrying on Mr Love's land. The first briefing said that those constraints would be "eased" if the permit application were refused (as had by then been recommended); and the second briefing (sent after the refusal) said that the constraints had been "eased". Each was perfectly correct. The refusal of the permit had indeed eased the quarrying-related constraints. The Scanlon Undertaking is beside the point. It related to the Scanlon land, not the Love land. If the present ground makes any sense at all, it constitutes no more than a repeat of the first ground. It must be rejected.

197 The fourth ground complains about the use of the phrase "agreed industrial use" in the IDWP Report; and about implied advice allegedly given to Minister Thwaites by that Report[322] to the alleged effect that the refusal of the quarry permit had enabled the By-Pass alignment to be moved to the Love land, and to the alleged effect that this was acceptable to Vicroads, and to the alleged effect that it had been agreed that the 150 metre strip would be zoned for industrial use, and to the alleged effect that the movement would release the 150 metre wide strip for its agreed industrial use, and to the effect that, in those circumstances, there was statutory power to reserve and compulsorily acquire the Love land for the road. The plaintiff goes on to say that the Scanlon Undertaking had been given and that there was no "agreed industrial use" for the strip.

198 Much of this is repetitive of matters I have already dealt with. The plaintiff's complaints mischaracterise the facts. The employment by the IDWP of the phrase "agreed industrial use", in the sense in which the IDWP apparently intended it, was fair, reasonable and accurate. As the Roads Corporation submitted before me, the reference to "agreed industrial use" was not a reference to an agreement to re-zone but to an agreement or acknowledgement that (apart from the By-Pass proposal) such use was appropriate and inevitable. Whittlesea Council had persistently and consistently sought such a re-zoning - a re-zoning with which Mr Scanlon of course agreed.[323] The Quarry Permit Panel report contained observations about Amendment L143 relating to the Scanlon land. It observed that in the event that the 150 metre wide strip was not chosen for the By-Pass "it was recognised that the strip would gain a Reserved General Industrial Zoning and be absorbed into the Outline Development Plan which related to industrial development on the Scanlon property".[324] The Panel Report stated that it proceeded against a background that presumed that "the entire Scanlon property possesses an overall zoning of Reserved General Industrial, as would be the case if the Option 2 or Option 5 proposals did not gain endorsement as a result of the [FAC] deliberations".[325] Of course, the C62 Panel ultimately had no hesitation in endorsing the re-zoning of the strip.[326] Indeed Mr Love himself, at the time of his submissions (through KLM) to the Amendment L143 Panel, had acknowledged the appropriateness of an industrial zoning for the whole of the Scanlon land. His only concerns were as to timing. The letter from KLM dated 23 June 1997 enclosing Mr Love's submission said:

"While Mr Love has no objection in principle to the subject land being eventually zoned for industrial purposes, he strongly objects to this occurring prior to a drainage scheme being completed for the area and an outline development plan being prepared for the entire precinct in which the subject land is located."

Drainage problems were addressed in due course, and a condition was imposed on Amendment L143 that an overall development plan for the land (albeit not one for the entire precinct) be prepared. There was nothing misleading about the expression "agreed industrial use" in the circumstances, and the Minister could not have been misled by the way in which it was used in the IDWP Report, where there was an express reference to the refusal of the quarry permit and the "release" of the 150 metre wide strip of the Scanlon land in consequence.[327] Although Mr Scanlon appears to have been under financial pressure and to have harassed Vicroads staff vigorously for a long time, I do not accept the plaintiff's submission that, after the quarry permit was refused, the Vicroads personnel used this as an excuse "to take the easy option, pick up the alignment, drop it on Love's land and be done with it, and thereafter the mantra of the agreed industrial use comes to be used".[328] The evidence does not support this thesis. It is contradicted by the very reasonable explanation of the use of the word "agreed" to which I have referred. Further, I note that the first known use of the phrase was in a draft section of the IDWP report apparently prepared by Mr Woolner,[329] who was employed by the DOI, not VicRoads.

199 In any event I can see nothing in any relevant statute forbidding the Minister from taking into account information of the general kind presently in question, namely information about the appropriate or available uses of affected land. The plaintiff's real complaint seems to be about the quality of the information, not about the topic. In other words, his real complaint appears to be about the merits of the decision, not its legality.

200 I have not overlooked the reference to the Scanlon Undertaking in the plaintiff's pleadings and submissions pertinent to the present issue. But even if I were to accept everything the plaintiff says about the circumstances, nature, subsistence and "enforceability" of the Scanlon Undertaking, including his submission that the Scanlon Undertaking directly contradicted the notion that the strip had an "agreed industrial use",[330] and even if I accepted that Minister Thwaites had constructive (though admittedly not actual) knowledge of it,[331] still I would not be persuaded that Minister Thwaites had taken into account an irrelevant (ie forbidden) consideration. The topic would still be relevant. Mr Love's complaint would still only go to the administrative merits of the decision, not to its legal soundness. The fourth ground is rejected.

201 Fifth, the plaintiff pleaded that the matters raised by Mr Haermeyer, including opposition to Mr Love, and his desire that the by-pass be located on Mr Love's land, were irrelevant considerations.

202 The plaintiff's counsel said very little about Mr Haermeyer. It is true that Mr Haermeyer was vociferous in his objections to Mr Love's plans, and in his support for Mr Scanlon's, over a lengthy period. It is also true that Mr Haermeyer was mentioned (once) in the memorandum from Mr Eltringham to Minister Thwaites of 16 November 1999 which recommended the refusal of Mr Love's quarry permit application.[332] He was mentioned as being part of the "extensive and sustained public opposition" to the proposed quarry. It may be (though it has not been proved) that such opposition (or, at least, Mr Eltringham's assertion as to the existence of such opposition) contributed to the refusal of the quarry permit. Mr Love has brought a separate proceeding in this Court challenging the validity of the refusal of the quarry permit, but the statement of claim in that proceeding[333] does not allege that any matters raised by Mr Haermeyer of the kind referred to by the plaintiff in the present case were irrelevant considerations or that public opposition, as such, was an irrelevant consideration.[334] I note that Minister Thwaites had published a statement of reasons for the refusal which made no reference to Mr Haermeyer or to public opposition to the proposal.[335] In any event no challenge to the legal validity of the quarry permit refusal is included in the present proceeding. In these circumstances I believe I should assume that the refusal was legally valid.

203 Otherwise, there is no evidence that Minister Thwaites ever took into account anything said by Mr Haermeyer at all. Neither Mr Haermeyer, Mr Love nor Mr Scanlon is mentioned in the Ministerial Assessment or in any briefing related to the Ministerial Assessment. Mr Haermeyer is not mentioned at all in any utterance that could appropriately be attributed to Minister Thwaites in direct connection with his decision-making on Amendment C23. Some of the matters raised by Mr Haermeyer were proper planning considerations. Others, of a more personal or political nature, may not have been. However, I am not satisfied that Minister Thwaites was influenced by any of the non-planning matters raised by Mr Haermeyer. Indeed, as I have indicated, I am not satisfied that Minister Thwaites was ever influenced by any statements or comments made by Mr Haermeyer about Mr Love or Mr Scanlon on the By-Pass at all. In these circumstances I need not consider the interesting questions raised by Aronson et al about the "leeway" courts should allow to decision-makers, and in particular to Ministers, to take into account political considerations.[336] The fifth ground is rejected.

204 It follows that I am not satisfied that Minister Thwaites took into account any irrelevant (ie forbidden) considerations in deciding that Amendment C23 should be made.

205 The conditions for a successful attack on an administrative decision on "relevant considerations" grounds reflect those applicable to an "irrelevant considerations" attack. The challenger must show:[337]

(a) that the decision-maker did not take the consideration into account;

(b) that the consideration was one that the decision-maker was, by law, bound to take into account; and

(c) that the intention of the relevant legislation is that a failure to take the consideration into account will result in invalidity.

Again, close attention will usually need to be paid to the terms of the relevant legislation, especially where the challenger is relying on an allegedly implied requirement rather than an express requirement. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Brennan J said:[338]

"The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power."

After quoting that passage, Gleeson and McHugh JJ said, in Foster v Minister for Customs:[339]

"[23] The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject ... For the appellant's argument to succeed, there must be found in the legislation an implied obligation on the Minister to examine and investigate the contention at the level of particularity involved in the submission."

206 I turn to the plaintiff's specific allegations as to considerations not taken into account in relation to Amendment C23, as particularised above.

Comparative compensation costs: a mandatory consideration?

207 The first and second points should be dealt with together. In essence they allege that VicRoads had had "expert geotechnical and property services advice" for the 1997 "move" of the alignment to the Scanlon land but no such advice for the later (2000) "move" to the Love land, and that Minister Thwaites was bound, but failed, to take this into account.

208 I note that the Roads Corporation makes the following response to these grounds.[340] The alignment on the western boundary of the Scanlon land was, at the time of the FAC Report, the preferred solution. However, after completion of the FAC Report, the quarry permit application was refused. As a consequence, the alignment was re-located to the eastern portion of the Love property. There was no need to rely upon, receive or refer to "further expert geo-technical or property services advice".[341]

209 There is nothing in the evidence to suggest that Minister Thwaites personally was ever made aware of the fact that VicRoads had obtained expert advice in the first instance, or that Vicroads had not done so in the second instance. These facts were relatively small details in the overall context of the Minister's role in relation to the proposed By-Pass. However I will assume in the plaintiff's favour (without deciding) that any official knowledge of these facts (within any relevant Department or agency) should be treated as information constructively available to the Minister,[342] given that several Departments and agencies (including Vicroads) were involved in the project. It may be accepted that certain personnel within Vicroads, at least, were aware of the facts. On the other hand, if the facts were taken into account in any report, advice or recommendation made to, and accepted by, the Minister, he himself would ordinarily be deemed to have taken them into account.[343]

210 The plaintiff's real complaint in the present regard is not about anyone's ignorance of events. The relevant Vicroads personnel, such as Aleksic, Gray and Evans, were well aware of the fact that "expert geotechnical and property services advice" had been obtained in relation to the 1997 "move".[344] It is not suggested that they were under any misapprehension about the fact that no corresponding advice was obtained in relation to the "move" in 2000. What the plaintiff is really saying is that relevant officials were obliged to obtain corresponding advice in relation to the proposed "move" of the alignment in 2000 and that the Minister was bound to take such advice into account, either through officials or personally, before adopting the route that was chosen for the By-Pass in Amendment C23.

211 I do not accept the submission. The advice that had been obtained in about 1997 was obtained for the sole purpose of estimating comparative compensation costs that would eventually be payable by Vicroads in the event that one or other of the pieces of land in question was chosen for compulsory purchase or acquisition. The main feature of the advice given at that time was that the highest and best use of the Love property was thought to be for quarrying.[345] The Valuer General had then valued the land on that basis.[346] Subsequently, however, the quarry permit was refused.

212 A judgment may have been made at Vicroads at the relevant time that the refusal of the quarry permit meant that quarrying was no longer the highest and best use of the Love land, and/or that the potential compensation costs of acquiring the Love land would no longer be of such significance as to warrant the obtaining of further "expert geotechnical and property services advice". For present purposes it does not matter whether any such judgment was correct or wise, nor whether it remains the view of VicRoads. The only question is whether "some statute"[347] required that further advice be obtained and taken into account by or on behalf of Minister Thwaites at the relevant time.

213 There is nothing in the P & E Act that explicitly provides, even, that potential compensation costs may be considered in connection with proposed planning amendments, much less that they must be considered. Of course, many, if not most, planning amendments will not involve the reservation of land for acquisition or use for public purposes nor otherwise involve potential compensation. But where compulsory acquisition for, say, road-building is likely to be involved, does the P & E Act or any inter-related Act, such as the Transport Act 1983 or the Land Acquisition and Compensation Act 1986, separately or together, have the effect that compensation costs (and in particular, comparative compensation costs) are, or on occasions may be, a mandatory consideration?

214 As Osborn J noted in Roads Corporation v McCarthy,[348] the general approach to be taken to the interpretation of interrelated statutes was stated by Kirby J in Commissioner of Stamp Duties v Permanent Trustee Co Ltd:[349]

"... it is proper for courts to endeavour to so construe inter related statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation. This is the approach which I take to the task of statutory interpretation in hand."

215 However in Lloyd v Robinson,[350] the High Court held that there was no reason to read down the town planning legislation of Western Australia by appealing to a principle of construction that has to do with the confiscation of land by compulsory acquisition. That proposition was treated as good law recently by the High Court in Western Australian Planning Commission v Temwood Holdings Pty Ltd.[351]

216 On the other hand I would accept that it is a proper inference from reading the P & E Act, the Land Acquisition and Compensation Act 1986 and the Transport Act 1983 together that potential acquisition costs will be a permissible consideration for a decision-maker contemplating a planning scheme amendment, at least in some circumstances. That view seems to gain support not only from the mere existence and the terms of the Land Acquisition and Compensation Act 1986 but also from Part 5 (especially s 98(1)(a) and (b)) of the P & E Act itself. Part 5 creates rights to compensation for, among other things, the effects of reserving land for a public purpose (short of actual acquisition). Particular provisions prevent or minimise "double-dipping", or authorise the imposition of conditions designed to achieve that object and/or to enable reserved land to be used or developed to a reasonable extent pending acquisition.[352] In McCarthy,[353] Osborn J held that a condition of that kind accorded with the objectives of planning in Victoria set out in paragraphs (a), (e), (f) and (g) of s 4(1) of the P & E Act (see further below). But it is quite another thing to hold that acquisition costs will always, or even sometimes, be a mandatory consideration for a decision-maker (especially a Minister) who is contemplating a planning scheme amendment involving a potential acquisition of land.

217 The P & E Act provides that one of the objectives of planning in Victoria is to provide for the "economic" use and development of land: s 4(1)(a). An objective of the "planning framework" is to enable land use and development planning and policy to be easily integrated with various specified policies, including "economic" policies: s 4(2)(c). Another is to "provide for explicit consideration of social and economic effects when decisions are made about the use and development of land": s 4(2)(d). However, depending on the circumstances, the level of statutory compensation that may be payable by a government body for the compulsory acquisition of a particular piece of land will not necessarily be relevant at all to the "economic use and development of land" within the meaning of s 4(1)(a), nor to the "economic policies" referred to in s 4(2)(c), nor to "explicit consideration of social and economic effects when decisions are made about the use and development of land" within the meaning of s 4(2)(d). In essence, these provisions are concerned with promoting the economic use and development of land (by those in control of the land) after, and as a consequence of, the making of relevant planning decisions. They are not centrally concerned with the amount of statutory compensation that may have to be paid by government for compulsory acquisitions.

218 In any event, the P & E Act seems to have the effect that "social and economic effects" are not a mandatory or imperative consideration for a planning authority, insofar as it is contemplating a planning scheme amendment. As indicated above,[354] there is a stark contrast in the Act between, on the one hand, the use of the word "must" in s 12(1) and in every paragraph of s 12(2) except s 12(2)(c), and, on the other hand, the use of the word "may" in s 12(2)(c). This seems to indicate that, in preparing a planning scheme amendment, a planning authority may, but is not obliged to, take into account "its social and economic effects".[355] It is true that s 12(1)(a) provides that a planning authority "must" implement "the objectives of planning in Victoria", and that one of those objectives is to provide for the "economic" use and development of land (s 4(1)(a)). However s 12(1)(a) is expressed in general terms, whereas s 12(2)(c) applies to planning scheme amendments (and planning schemes) in particular. Usually the specific prevails over the general.[356] Further, while it is true that s 4(2)(c) states that one of the objectives of the "planning framework established by this Act" is to "provide for explicit consideration of social and economic effects when decisions are made about the use and development of land", this provision seems to be merely indicative (in a general way) of the intended operation of other particular provisions of the Act which actually establish the "planning framework".[357] The most significant of those provisions, for present purposes, are s 12(2)(c) itself and s 60(1)(b)(i) (as it stood in 2001) which related to the grant of permits. At the relevant time s 60(1)(b)(i) provided that, before deciding on an application for a permit, the responsible authority,[358] - "if the circumstances appear to so require" - may consider any one or more of four specified matters, including "any significant social and economic effects of the use or development for which the application is made".[359] Again, s 60(1)(b)(i) was to be contrasted with s 60(1)(a)(i), (ii) and (iii) which referred to matters which the responsible authority "must" consider. In Returned and Services League of Australia (Victorian Branch) Inc v Moreland City Council,[360] the Court of Appeal held that, on the true construction of s 60(1)(b)(i), "if the circumstances appear to so require" the responsible authority was bound to have regard to whichever of the four specified matters bore upon the issue. However no expression corresponding to "if the circumstances appear to so require" is included in s 12(2)(c).

219 I recognise that certain English authorities arising from challenges to compulsory purchase orders have effectively treated comparative acquisition costs as a mandatory consideration for the relevant decision-makers.[361] However those cases do not endeavour to locate the obligation in any express or implied statutory provision or provisions. Rather, they seem to impose the obligation a priori as a matter of fairness or reasonableness. That approach is out of step with binding current Australian authority, such as Peko Wallsend, Foster and Neat Domestic Trading. The plaintiff does rely on s 42 of the Transport Act 1983 for the proposition that a compulsory acquisition will be invalid unless, objectively, the land in question is truly "required" for the purposes of the Roads Corporation. However this argument (to which I will return in due course) is directed primarily, if not exclusively, to the Road Corporation's decision-making and to approval by Minister Batchelor of the actual acquisition by the Roads Corporation, rather than to the decision-making of Minister Thwaites. In any event, as I will later indicate, I consider that the argument has no substance.

220 The circumstances of decisions about planning scheme amendments (including those involving potential acquisitions of land) will vary greatly. Salient features of the present case include that the ultimate decision was to be made by the Minister himself - with the result, in my view, that due allowance is to be made for the taking into account of broader policy considerations[362] - and that the range of issues and interests that competed for attention in the planning process was so extraordinarily wide. In those circumstances, and having regard to the provisions of the legislation to which I have referred, I am strongly inclined to the view that (comparative) compensation costs were not a mandatory consideration for Minister Thwaites in relation to Amendment C23 (or for any of the other relevant decision-makers).

221 In the end, however, I need not and do not decide that point. On any view, Minister Thwaites did, by taking into account the FAC Report and the SAC Report, take into account the estimated total acquisition costs, and the estimated total overall costs, of each individual proposed alignment of the By-Pass respectively, including Option 5 (which went through the Scanlon land) and Option Y (which went through the Love land).[363] He also had the benefit of the IDWP Report which dealt specifically with the reasons for the "move" from the Scanlon land to the Love land, being reasons that were obviously related to questions of comparative acquisition costs. In addition he had the benefit of the L143 Panel Report and the Quarry Permit Panel Report, as well as the Ministerial Assessment (which he adopted). In my view, having regard to the enormous breadth and scope of the issues raised by the By-Pass proposal, the fact that the overall costs of Option Y were estimated at between $255 million and $306 million (including $27 million for acquisition costs) whereas the overall costs of Option 5 were estimated at between $310 million and $365 million (with $31 million for acquisition costs), the fact that the cost of the By-Pass was to be met entirely by federal funding, the fact that adopting Option 5 instead of Option Y would have meant intersecting quite differently with land to the south of Cooper Street[364] (inevitably raising concerns about the potential for detrimental or costly impacts that have not even been explored, much less dispelled, in this proceeding), and the factual history generally, and notwithstanding everything the plaintiff says about the "Scanlon Undertaking" and about the worth of the basalt stone resource on the Love land (to each of which I will shortly return), I am not satisfied that Minister Thwaites was bound to "examine and investigate"[365] questions of comparative acquisition costs at any greater "level of particularity"[366] than he did. In other words I am not satisfied that he failed to take into account anything that he was bound to take into account in relation to comparative acquisition costs.

222 Accordingly, the first and second of the "relevant considerations" grounds are rejected.

223 Next the plaintiff alleges, as the third ground under this heading, that Minister Thwaites did not take into account the availability of the 150 metre wide strip of the Scanlon land for which the potential compensation cost (which, by reason of the "Scanlon Undertaking" was allegedly at rates reflecting General Farming Zoning) would have been "far less" than the "millions of dollars" allegedly payable in respect of the By-Pass Excision Land.

224 Obviously this ground, like the previous two, is centrally concerned with comparative acquisition costs. As just indicated, I am not satisfied that Minister Thwaites was bound to take into account any further information or matter going to comparative acquisition costs than he did. That conclusion alone would dispose of this ground.

225 Nevertheless, in deference to the extensive arguments advanced by the parties in relation to the "Scanlon Undertaking" and in relation to the worth of the basalt stone resource on the Love land, I will make and express further findings about those matters respectively. My findings will bear not only upon the "relevant considerations" ground in relation to Minister Thwaites' decision but also upon numerous other grounds in relation to that decision and other decisions impugned by the plaintiff.

226 The plaintiff pleads in paragraph 13 of the ASOC that on or before 12 December 1997 Mr Scanlon, for himself and Epping Development Pty Ltd, gave an undertaking to the City of Whittlesea that, in the event the alignment along the western boundary of the Scanlon land was chosen for acquisition for the By-Pass, he and Epping Development Pty Ltd would accept compensation on the then present day values, that is, reflective of General Farming Zoning rather than industrial zoning. This is defined as "the Scanlon Undertaking". In paragraph 14 it is pleaded that on or about 9 February 1998, "consequent in part upon the Scanlon Undertaking", Minister Maclellan approved Amendment L143 to the Whittlesea Planning Scheme with the effects already mentioned.

227 The plaintiff does not submit that the "Scanlon Undertaking" was legally enforceable, but rather that it was "practically" enforceable because of the powers of the Planning Minister in relation to zoning, and that it was therefore a (mandatorily) relevant consideration for the Ministers and for the Roads Corporation during the decision-making period between May 2001 and 11 February 2002. The defendants deny that there was any sufficiently identifiable undertaking at all; or that it contributed to Amendment L143; or that, if it ever existed, it remained in existence beyond 1999; or that it was even "practically" enforceable; or that it was a (mandatorily) relevant consideration.

228 In a letter from the CEO of Whittlesea Council, Mr Brennan, to Minister Maclellan dated 12 December 1997[367] the Council urged the Minister to rezone the Scanlon land in accordance with proposed Amendment L143 because of two "recent events", namely, first, Vicroads altering the Option 5 alignment so that it ran along the western boundary of the Scanlon land and, second:

"An undertaking from the landowner Mr Scanlon that in the event the alignment is chosen for acquisition he will accept compensation on present day values, ie reflective of General Farming zoning."

229 The language of that letter is the nearest to the language of the "Scanlon Undertaking" as pleaded, of any document in evidence, although it makes no reference to Epping Development Pty Ltd. However the letter itself was not written by Mr Scanlon or by any consultant or agent engaged by him. It was written by a third party, albeit with a congruent interest.

230 At about this time Mr Scanlon was being represented by a town planning consultant called Mr Custance, as well as by Mr Masten. On 10 December 1997 Mr Custance had written to Minister Craige on behalf of Mr Scanlon suggesting that the alignment be pushed further west (presumably onto Mr Love's land) and saying, alternatively, that "Mr Scanlon is also prepared to sell the land required for the road to Vicroads at current market value on the basis that the land can be developed now".[368] Two days later, on 12 December 1997, Mr Custance wrote to Mr Craige's senior ministerial adviser, Mr Hamilton, seeking help to get rid of the By-Pass proposal as an impediment to the re-zoning of the Scanlon land. He expressed the belief that the recent change to the alignment "provides the opportunity to proceed further with this proposal on the basis of an agreement as to the appropriate level of compensation that may have to be paid in the future". Nothing more specific was said in the letter about the terms of any agreement, but a chronology of events was enclosed and it included a reference to the Council's letter, with a copy attached. The chronology described the Council's letter as constituting a request to the Minister for Planning to "'allow the approval of the Amendment without delay', in the light of the altered alignment and commitments from Mr Scanlon in regard to any compensation payable".

231 It is plain enough from this correspondence that whatever commitment or undertaking was being offered by Mr Scanlon at this stage was conditional on, or at least envisaged, the re-zoning of the whole of the Scanlon land.[369]

232 On 22 December 1997 Mr Aleksic of Vicroads prepared and circulated for internal comment a draft ministerial briefing note to be sent by the CEO of Vicroads, Mr Jordan, to Minister Craige together with a draft letter responding to the letter to Mr Hamilton from Mr Custance (acting for Mr Scanlon) dated 12 December 1997. The draft ministerial briefing note included (as paragraph 8) the following:[370]

"Should Mr Scanlon's property be directly affected by the Hume Freeway, the issue of compensation will be dealt with under the appropriate Acts (Land Acquisition and Compensation Act or the Planning and Environment Act). If the land is rezoned, the compensation will be calculated based on industrial value of the property, not rural value of the property."

The draft letter stated, among other things, that the alignment option was in the control of the FAC and the Minister, not Vicroads. It then proceeded:[371]

"However, once the decision is made on the alignment of the Hume Freeway and should your client's property be directly affected, the issue of compensation will be dealt with by VicRoads under the appropriate compensation Acts (the Land Acquisition and Compensation Act or the Planning And Environment Act, whichever is applicable at the time)."

It is not clear whether any such letter was actually sent.

233 On 14 January 1998 Mr Eltringham of the DOI sent a draft briefing (for the Planning Minister) to the City of Whittlesea for comment as to its factual accuracy insofar as it purported to represent the views of the Council. The subject was Amendment L143. The draft attributes to the Council the following view (in relation to the Panel's opinion that a finalised option for the Freeway should be awaited):[372]

"... [N]either Vicroads nor DOI objected to the proposed amendment. The owner is prepared to enter into an agreement to sell the land to Vicroads for F2 Freeway under values established using the existing General Farming Zone should the F2 Freeway alignment eventually traverse the land."

234 A meeting between Mr Scanlon and his representatives, including Mr Custance, and Minister Craige was arranged for 21 January 1998. Mr Custance prepared briefing notes for the meeting which included a reference to an undertaking from Mr Scanlon as expressed in the City of Whittlesea's letter dated 12 December 1997. It also contained an assertion that officers of the DOI were preparing a report for the Planning Minister and that there were "indications that report will be favourable as Scanlon's undertaking re compensation resolves outstanding issues in regard to possible Freeway alignment". Finally it included a request to Minister Craige to confirm the alignment and to advise the Minister for Planning that he had no objections "to the approval of L143".

235 The meeting duly took place on 21 January 1998. Mr Craige expressed concern about any rezoning of land that might be needed for the By-Pass. However, despite some evidence to the contrary to which I will shortly refer, I am not satisfied that an alternative possibility of rezoning only part of the land was raised at the meeting. Nor am I satisfied that anything was said or done by or on behalf of Mr Scanlon at that meeting whereby any prior "undertaking" of his was (or could reasonably be understood to have been) extended or amended in such a way as to apply to a mere partial rezoning of his land (or, for that matter, whereby any fresh undertaking applicable to a mere partial rezoning of the land was given).

236 Mr Custance sent a facsimile to Mr Phillips of the DOI on 3 February 1998.[373] In the facsimile Mr Custance referred to a letter of 30 January 1998 from the CEO of Vicroads (Mr Jordan) to the Deputy Secretary of the DOI (Mr Hickman)[374], which confirmed that Vicroads had no objection to the rezoning of the land "east of the area being considered for the possible then Freeway link". The Vicroads letter had made no reference to any undertaking by Mr Scanlon. Mr Custance's facsimile went on to say:

"Mr Scanlon has agreed to the Freeway reserve on the basis of compensation at current market value. It is therefore suggested that the whole of the land be included in the General industrial land with the location of the Freeway Reserve to be finalised on this basis."[375]

237 On 6 February 1998 a ministerial briefing of that date from Mr Geoff Cook of the North West Metropolitan Office (via a "Director") of the DOI was received by Minister Maclellan's office.[376] The stated purpose of the briefing was "To approve Amendment L143 to the Whittlesea Planning Scheme with changes". Some background was given and some stated issues were dealt with. There was no mention whatsoever of any undertaking from Mr Scanlon. The recommendation was to approve Amendment L143 "except for that part of the land within 150 metres of the western boundary". A map was attached. It was recommended that this land "should remain in a General Farming zone until such time as the preferred option for the Hume Freeway has been determined". On 9 February 1998 Minister Maclellan approved Amendment L143 in terms that accorded with that recommendation.[377] The Amendment included an "Explanatory Report". Nothing at all was said there or elsewhere in the Amendment to explain why the 150 metre strip was excluded. There was no reference to any undertaking from Mr Scanlon.

238 Some ten years later, in May 2008, former Ministers Craige and Maclellan swore affidavits to be tendered on behalf of the plaintiff in this proceeding. Each was called and cross-examined.

239 In his affidavit Mr Craige said: "About 3 years ago I suffered a stroke. As a consequence, my short term memory has been affected but my long-term memory remains generally good".[378] He deposed that he had received the letter of 12 December 1997 from Mr Custance, with the attached copy of the letter from Whittlesea Council which confirmed that Mr Scanlon had given an undertaking that in the event the western strip was chosen for the acquisition he would "accept compensation on present day values, ie reflective of General Farming Zoning". Mr Craige referred to a meeting with Mr Scanlon and his advisers "in December 1997 or in January 1998". (It is now common ground that the meeting occurred on 21 January 1998). Mr Craige deposed that, at that meeting, Mr Scanlon asked that Mr Craige "help him have the Scanlon land, except for the 150 metre strip, rezoned for industrial given that he had undertaken to sell[379] the 150 metre strip to Vicroads at its then present rural values". Mr Craige continued:

"The undertaking Mr Scanlon had given ... was, in my opinion, an important new factor in relation to the question of rezoning. It certainly influenced my view about what should be done about Mr Scanlon's proposed application to rezone the Scanlon land. Specifically I was of the view that:

(a) the balance of the Scanlon land should be rezoned to an industrial zone as Mr Scanlon proposed; and

(b) the relevant alignment of the Craigieburn Bypass should, if that alignment was selected as the final route, be on the 150 metre strip.

I told Mr Scanlon and his advisors that that was my view. I said that I would arrange for them to meet Minister Maclellan and recommended that Mr Scanlon should inform Minister Maclellan of his undertaking to sell the 150 metre strip to VicRoads at its then present rural values.

33. Straight after that meeting, I took Mr Scanlon and his advisers upstairs to meet with Minister Maclellan. I was not present for their discussion."

240 Under cross-examination, Mr Craige conceded that he had no actual recollection of any of the members of the Scanlon party raising with him the alternative of rezoning part of the land.[380] Mr Masten, who attended the meeting, deposed[381] that he recalled discussing with Minister Craige the level of compensation payable "if the whole of 360 Cooper Street was rezoned industrial". He does not suggest that any "150 metre" alternative was raised at the meeting. I find that none was. Nor am I satisfied that such a thing was raised with Mr Craige at any other time.[382]

241 As indicated above, Mr Craige deposed that he would arrange for the Scanlon parties to meet Minister Maclellan and recommended to them to inform Mr Maclellan of Mr Scanlon's "undertaking". There was a meeting between the Scanlon parties and Minister Maclellan at some stage. Mr Maclellan, in paragraph 21 of his affidavit, said that he met with Mr Scanlon and some of his consultants, including Mr Masten and Mr Custance, at a time which was not precisely specified but which, judging by the context, Mr Maclellan believed to be around 6 February 1998. However it seems from the weight of the evidence, and especially from that of Mr Masten,[383] that the only relevant meeting with Mr Maclellan occurred on the same day as the meeting with Mr Craige, namely 21 January 1998. Again, Mr Masten did not suggest in his affidavit or in his oral evidence[384] that any "150 metre" alternative was raised with Mr Maclellan at any such meeting. This was confirmed in the evidence of Mr Maclellan himself who said, under cross-examination, that he did not think there was a meeting of himself and Mr Scanlon in which 150 metres was negotiated".[385]

242 Mr Maclellan says in his affidavit that he received the letter from Whittlesea Council dated 12 December 1997.[386] He continues:

"19. I thereby became aware of the undertaking Mr Scanlon had given ('Scanlon undertaking'). In particular, my understanding was that in order to enable the balance of the Scanlon land to be rezoned to an industrial rezoning, Mr Scanlon had agreed to sell a strip of land along the western boundary of the Scanlon land ('150 metre-wide strip') to VicRoads at its then rural value. I then intended to ensure that the 150 metre-wide strip remained in a General Farming zoning until the final route of the Craigieburn Bypass was adopted. If I adopted the easternmost alignment for the Craigieburn Bypass, I intended that the 150 metre-wide strip the subject of the Scanlon undertaking would be reserved by public acquisition overlay for the construction of the Bypass unless the Advisory Committee expressly recommended a different final route for that alignment."

He next refers to Mr Cook's briefing of 6 February 1998. Then he makes the apparently mistaken reference to meeting the Scanlon party "at around that time". He continues:

"22. I accepted Mr Cook's recommendation and approved Amendment L143 except for the 150 metre-wide strip. I did so because:

(a) I considered that it was unnecessary to delay rezoning the balance of the Scanlon land once VicRoads confirmed that it was not opposed to that rezoning; and

(b) Mr Scanlon had given an undertaking to enter into an agreement to sell the 150 metre-wide strip to VicRoads for its rural value under the existing General Farming Zone if the 150 metre-wide strip was ultimately required for the Craigieburn Bypass."

243 I accept that Minister Maclellan genuinely believes, now, that Mr Scanlon had given some sort of relevant undertaking and also that the giving of it played some part in his decision to rezone part of the Scanlon land. However I am not satisfied that, if the matter were to be litigated adversarially as between Mr Scanlon and any other party, Mr Scanlon would be found, objectively, to have given anything other than an undertaking conditioned on the rezoning of the whole of the land. Even then, the terms of the undertaking would have been unclear. Was it to sell? Was it to accept "current market value"?[387] As at what precise date? Further, I am not satisfied that any undertaking given by Mr Scanlon played any real or substantial part in the decision of Mr Maclellan to approve Amendment L143 in its modified form. The contemporaneous documents to which I have referred are against any causal connection. In addition, some five months later, when Minister Maclellan wrote to Mr Love responding to a complaint by Mr Love about the L143 decision, the Minister gave an explanation containing no reference to any undertaking by Mr Scanlon.[388] As at 9 February 1998, in the light of developments since the L143 Panel Report, the Council's firm attitude and Vicroads' position, there was little or no reason not to allow the rezoning of the bulk of the Scanlon land at that stage. No undertaking as to the balance was required to make the partial rezoning a fully understandable decision.

244 It does seem that for some period Mr Scanlon himself harboured a notion that he was under some sort of an obligation as a result of the decision to make Amendment L143. I have already referred to the lengthy and acrimonious correspondence from him beginning in May 1999 after he discovered that there had been a proposal in 1996 for an alignment through the middle of Mr Love's land. On 7 July 1999 he wrote to Vicroads saying that "Agreement therefore [is] considered flawed and null and void ... Should Option 2 be adopted, acquisition and compensation will need to be based on General Industrial Zoning valuation and in accordance with the Land Acquisition and Compensation Act". But, of course, Vicroads had already acknowledged, at least internally,[389] that if Scanlon's land was acquired, compensation would be based on the legislation (and, even, that it would be at the "industrial value of the property"). Later, after Mr Scanlon began his complaints, Vicroads wrote to him numerous times to the effect that any compensation would be based on the legislation (as distinct from any undertaking). In all the circumstances I do not regard Mr Dwyer's heavily qualified reference, in 2004, to the much earlier "undertaking" by Mr Scanlon as being of any real significance. As the first defendant's senior counsel submitted, it was a throwaway line about a wildly improbable scenario, from a person who had not been acting for Mr Scanlon at the earlier time.[390]

245 Even if the "Scanlon Undertaking" had been sufficiently certain and even if it had contributed to the making of L 143 and even if there had been no basis for Mr Scanlon to resile from it, I am not satisfied that it would have been a proper ground for denying compensation for the acquisition of the 150 metre strip at whatever level would have been applicable in its absence.

246 Apart from everything else, by 7 February 2001 part of the Scanlon land, including the 150 metre strip, had been transferred to Northpoint Enterprise Park Pty Ltd[391] and it was that company, not Epping Development Pty Ltd, that sought the re-zoning of the strip on 19 November 2001.[392] It is very difficult to accept that the "Scanlon Undertaking" (which the plaintiff admits gave rise to no legal or equitable rights or obligations) ran with the land.

247 However, the plaintiff submits that, had the 150 metre strip been compulsorily acquired, the Roads Corporation would have been justified in paying only farming level compensation because of the "Scanlon Undertaking". The defendants (being, of course, the State of Victoria itself and the Roads Corporation itself) deny this. They submit that, if any relevant undertaking was given at all, it was only given as a consequence of the road proposal. They submit that, therefore, by reason of the Pointe Gourde principle[393] or s 43(1)(a) of the Land Acquisition and Compensation Act 1986, or both, any such undertaking would have to be disregarded in calculating compensation. The plaintiff puts a complicated and, as far as I can tell, unprecedented argument in response, to the general effect that this Court or VCAT, in assessing the compensation, would, if need be, have heard, accepted and acted upon evidence from the relevant planning authority (being, perhaps, the then current Planning Minister or a former Planning Minister) to the effect that, by reason of the undertaking, the planning authority would not have approved the re-zoning of the 150 metre strip to "industrial" before it was acquired. The plaintiff cited in support, principally, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[394] and Western Australian Planning Commission v Temwood Holdings Pty Limited,[395] I need not and do not finally decide this legal point (which, on my findings of fact, has become hypothetical or virtually so) but I would observe that, as it seems to me, neither Walker nor Temwood assists the plaintiff's legal argument much, if at all. The main point established in Walker was that there was a need to distinguish between changes in value for which the resuming authority was responsible and any such outcome caused by other official action.[396] In the present case, the Roads Corporation was both the resuming authority and the officially designated proponent of the proposal. Temwood upheld the validity of a town planning condition that a developer cede a certain portion of foreshore land to the Crown free of costs, and without compensation by, the Crown. In the present case, any concession offered by Mr Scanlon was not formalised by way of a condition or a statutory agreement or otherwise. Nor, in my opinion, should it be seen as having had any or any substantial connection with the re-zoning decision. Of course, both Walker and Temwood were decided well after Minister Thwaites made his decision. In any event, Minister Thwaites would have been entitled, at least, to be very doubtful about the soundness of the legal argument now advanced by the plaintiff, had it occurred to him.

248 Finally, the plaintiff has not pointed to any material (contained or referred to in the evidence before this Court) that was available to Minister Thwaites and that might have informed him about the likely quantum of any difference in the compensation payable in respect of the 150 metre strip on "Farming" values as compared with "Industrial" values. A valuation of 23 April 1998 estimates that the acquisition cost of the land required for old Option 2B (running through the middle of the Scanlon land) would be $820,000.[397] That valuation is endorsed with a comment "Farming with overlay of industrial". The plaintiff submits that it can be inferred from this that the acquisition cost for an equivalent amount of land on the western boundary would be $420,000.[398] Presumably, though, the plaintiff is referring to farming values, not industrial values, in this submission.

249 I accept that neither the FAC nor the SAC nor Minister Thwaites (personally) was ever told about the so-called "Scanlon Undertaking", whereas various officials, such as Aleksic, Eltringham and Phillips, were aware of the facts of the matter. But, for the reasons I have given, I do not regard the "Scanlon Undertaking" as being of any real assistance to the plaintiff in the present case. The proposition that it would have served to restrict compensation for the acquisition of the 150 metre strip of the Scanlon land to "Farming" levels is highly speculative, at best. The "Scanlon Undertaking" was not a "call option", to use the language of the plaintiff's senior counsel.[399] It was probably not, in my opinion, even relevant to the decisions made by the Ministers or to the actions taken by the Roads Corporation. In any event, at the very best, it was no more than "a particular piece of evidence".[400] It was certainly not a consideration which any of them was legally bound to take into account.

250 Similarly, the matters raised by Mr Love in this case in relation to the basalt stone resource on his land do not assist him.

251 During his opening, in answer to questions, senior counsel for the plaintiff expressly acknowledged that the plaintiff did not contend that either the FAC or the SAC had been under any misapprehension about, or that they had ignored, the value of the basalt stone resource.[401]

252 Nevertheless, over the defendant's objections, the plaintiff sought to tender a number of reports by quarrying and other experts about the size, quality, viability and value of the stone resource, being reports additional to those which Mr Love had put forward to the various panels and committees (they having been included in the evidence before me without objection). One or two of the additional reports had been obtained by Mr Love prior to the relevant decision-making, but he had chosen not to put them forward to the relevant bodies. Others had been more recently commissioned, principally for the purposes of the parallel statutory compensation proceeding pending in this Court. Most of the more recent expert reports were based, at least partly, on drilling and testing carried out years after the decisions in question. The remainder were still "new" in that they said new things based on old information. The stated purpose of the tender was "to demonstrate that the submissions that Mr Love was making to the relevant panels and particularly to the advisory committees were founded ... on a well reasoned and authoritative basis".[402]

253 Generally speaking, the validity of an administrative decision - especially where the parties affected have had a proper opportunity to make submissions - is to be judged according to the material that was before the decision-maker at the time. There is a possible exception which has become known as the Prasad principle or "the duty to inquire". The plaintiff sought to invoke it in this case. He suggested that the decision-makers had had a duty to ascertain the information that was contained in the additional expert reports sought to be tendered. In Prasad v Minister for Immigration and Ethnic Affairs[403] Wilcox J said:

"The circumstances under which a decision will be invalid for failure to inquire are, I think strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, or judicial review, should receive evidence as to the existence and nature of that information."

254 I rejected the tenders. I indicated my reasons progressively as each document was tendered.[404] I summarised them by saying that the material was irrelevant because in all the circumstances it was not capable of supporting any ground of review based on unreasonableness constituted by failure to inquire.[405] For the record, I would reiterate that this was not a case where it was "obvious" that material "centrally relevant" to the decisions to be made was "readily available" to the decision-makers. As was said in Enichem Anic Srl v Anti-Dumping Authority,[406] decision-making is a function of the real world. If the information in question was readily available to anyone, it was readily available to Mr Love, who chose not to obtain it or not to put it forward. Whereas Mr Prasad was a poorly resourced would-be immigrant without legal or other representation, Mr Love was in a very different position. The context was commercial or quasi-commercial.[407] Mr Love had extensive expert representation at the relevant time. He was under no disadvantage or inhibition in advancing technical material then, or ever.[408] Indeed, he had put forward the abovementioned KLM submission of July 1996 which said that the eastern section of his property had been the subject of Bell Cochrane's "extensive geological investigations in late 1995 to determine the nature and quality of the basalt rock resource within the property".[409] KLM had described the results as "detailed". No issue had been raised about the quality or scope of Mr Love's technical investigations. The attempt to rely on the new material was hopeless.

255 For completeness, I note that, although the main focus of the plaintiff's attack is a planning scheme amendment (namely, Amendment C23), the plaintiff has not sought to characterise it as a (delegated) legislative or quasi-legislative act,[410] nor have the defendants submitted, in terms, that a planning scheme amendment cannot be attacked on all of the usual administrative law grounds, whereas there would be a real question whether, for example, the "considerations" grounds would be available in an attack on a planning scheme amendment if it were properly characterised as legislative in nature.[411] In any event, treating the case as a traditional attack on a (past) administrative decision rather than as an attack on delegated legislation, the plaintiff's counsel did not rely on the line of cases relating to challenges to delegated legislation, in which the focus is the future operation of the delegated legislation and evidence is not necessarily restricted to the material that was before the subordinate legislator at the time of the passage of the delegated legislation.[412]

256 As already mentioned, the plaintiff's senior counsel said during his opening that no issue was taken with the appreciation by the FAC and the SAC of the value of the stone resource. It would seem to follow that no complaint could be made about the appreciation of that matter by any of the decision-makers.

257 Indeed, the evidence indicates it was not until December 2002[413] (well after the critical decision-making) that Mr Love put any particular figure or range of figures to any official body as to the compensation that would be sought or that would be payable if the By-Pass were to traverse his land. Even now, all he says in the relevant part of the ASOC[414] is "millions of dollars". Various figures are set out in footnote 80 of his opening submissions, but they are based on the affidavits I have ruled inadmissible, containing estimates made well after the relevant decisions were made, and, for the most part, by reference to subsequent investigations. They assume a stone resource of 15.1 million tonnes and, moreover, they assume that a claim could be made in respect of all of it.

258 However, at least for the purposes of assessing the plaintiff's "unreasonableness" grounds, I propose to try to identify the value of the affected stone resource as perceived by the FAC and the SAC on the material before them, and, by extension, as perceived by the decision-makers on the material before them (bearing in mind that the plaintiff makes no attack on the perceptions of the FAC and the SAC as to the value of the stone resource).

259 This can only be done indirectly. As mentioned above, in late October 1997 Vicroads officers - particularly Aleksic, Stella and Gray - were contemplating factors for and against locating one of the alignments on the Scanlon land rather than the Love land. They knew that Mr Love had had a combined quarry/saleyards proposal before Whittlesea Council for some time. (This was soon after replaced by the quarry only proposal). They had obtained relevant advice from Vicroads' property section, from VicRoads geotech division and from the Department of Minerals and Energy.[415] They had also sought a valuation from the Valuer-General. By a memorandum dated 22 October 1997 Mr Lynton Doyle, of the office of the Valuer-General, provided an opinion based on a stated assumption, generous from Mr Love's perspective, that, contrary to previous understandings, the area east of the gas easement could be mined. Mr Doyle advised that "the potential loss of mining royalties will increase the estimated compensation for Love's land [from $900,000] to $3 million.[416] The assumption was later contradicted by advice given by DNRE to the Quarry Permit Panel, and in turn by the Report of the Panel. Other restrictions, too, would have been imposed by the Panel. But the Quarry Panel Report was not made available until somewhat later. There is no conclusive evidence as to whether Vicroads actually adopted the $3 million figure in its estimates of total acquisition costs as set out in the PAR for the alignments then under consideration,[417] but the valuation was repeated in a facsimile from the valuation and survey services division of Land Victoria of 23 April 1998.[418] In any event, it seems highly unlikely that Vicroads would have adopted any higher figure. Whatever it was that Vicroads put forward, the FAC and the SAC adopted it. So one can reasonably infer that the decision-makers' (effectively unchallenged) estimate of the compensation cost for the By-Pass Excision Land was no more than $3 million[419] and possibly considerably less.

260 So, at the very best for the plaintiff, on the material before the decision-makers, the potential cost of acquisition of the By-Pass Excision Land was $3 million. It is hard to know what the corresponding figure was for the Scanlon land, but, as indicated above, the plaintiff seems to acknowledge that it would have been at least $472,000 and it may have been considerably higher.[420] On any view, the differences are not enormous in the context of a project costing around $300 million. Moreover, the evidence about comparative costings for the relevant alignments shows that construction costs were far more significant than acquisition costs. The route through the Love land was perceived to be more direct and in that sense a better alignment (at least, as compared with the route through the middle of the Scanlon land).[421]

261 These comparisons, alone, have obvious negative implications for the plaintiff's "unreasonableness" and similar attacks, to which I will shortly come.

262 The plaintiff's complaints about the impacts on the stone resource as a result of Option Y as compared with Option 5 are all the more hollow when one considers the facts more closely. As the closing submissions of the Roads Corporation demonstrate, the decision-makers were entitled to proceed on the basis that the differences in impact would not be great, and I infer that they so proceeded.

263 As at 2001, the quarry permit panel had not recommended that 15 million tonnes be permitted to be quarried. No permit had been sought to quarry that amount of rock. The only permit sought had been to extract 7 million tonnes (in total) either side of the gas pipeline easement, above the water table (4 million tonnes to the west and 3 million tonnes to the east), with the possibility of further extraction below the water table to the east of the easement.

264 The 2000 draft work plan and the proposal to move the gas easement were of little or no significance. Although the gas company had apparently given approval in principle to the movement of the easement, no application had been lodged for a planning permit either to move the easement or in respect of the work plan. The work plan was not brought into existence until 11 months after the 25 November 1999 refusal of the 1997 planning permit application. It was clear that Whittlesea Council would oppose any such application and Minister Thwaites had already refused a less intrusive and more limited proposal on planning grounds. In January 2001 he declined Mr Love's request to re-consider that decision. No legal challenge to the refusal of the quarry permit was commenced until mid-2002. It is still pending.

265 Former Minister Maclellan said in evidence that he would only depart from a panel recommendation "on the most carefully organised and argued grounds".[422] Here the panel which he himself had appointed had recommended limited quarrying only. Any permitted extraction was recommended to be restricted to extraction west of the gas pipeline easement (and buffers), above the water table only[423] and with a permitted use to cease prior to 2026.[424] The plaintiff's particulars of complaint in this regard fail to recognise that, having regard to the Quarry Permit Panel's recommendations:

(a) any quarrying was to be limited as to location, time and depth;

(b) any quarrying, as Mr Love had "generally accepted" before the Panel, was unlikely to commence prior to 16-19 years;[425]

(c) any quarrying was anticipated to involve 350,000 tonnes per annum.[426]

266 Allowing for a delay of 15 years from October 1998 to start up (2013),[427] with a 2026 finish[428] at 350,000 tonnes per annum, a resource of 4 million tonnes might be required.

267 Against this, if Option Y were selected, the whole of the Scanlon land could be developed for industrial purposes (as the Whittlesea Council was very keen to see happen[429]), and only a limited amount of additional Love land west of the gas easement would be shut out from extraction or "sterilized", namely a strip 50 metres wide in the north and a wider strip near Cooper Street.[430] I note that Mr Love has now asserted in evidence that the best rock is in the southern part and that what would remain available (after deleting the 50 metre plus strip) is effectively unquarriable.[431] However what matters most for administrative law purposes is the picture that was presented to the decision-makers at the time, and Mr Love presented a case substantially to the effect that even Option 5 would make his quarry proposals uncommercial.

268 On 21 May 1999 Mr Love, through his consultant, Mr Kraan, submitted to the FAC that the impacts of the alignment on the western boundary of the Scanlon land would include "Sterilization of in excess of 6 million tonnes of basalt rock resource on the eastern side of the gas pipeline by virtue of the need to provide a buffer between the freeway and the quarry" and "Marginalization of quarrying in the medium term" (as well as "Weakening of medium to long term competition in the market for quarry products").[432] Mr Kraan went on to say that Mr Love "strongly opposes [the Scanlon alignment] because of these impacts".[433] Mr Love's own submission to the FAC was to much the same effect.[434]

269 By the time the SAC was appointed it was obvious to Mr Love and his solicitor, Mr Stevens, that the relevant alignment had been "moved" to the Love land. Yet Mr Love and his solicitor made little point about that. They continued to push, principally, for the removal of the By-Pass back to the area of the original reservation near Merri Creek. In a written submission to the SAC Mr Stevens said:[435]

"The Map does NOT show the existence of pending Work Authority 658 with 15.1 million tonnes of proven Basalt Reserves which would be made non-extractable by Options Y and possibly Option 5 with a multi million dollar compensation costs".

"Options Y and 5

Both of these cut through my property south of O'Herns Road and have varying degrees of impact on the quarry resource that has been identified. ...

The quarry impact of these Options is clear. The more bits and pieces that are trimmed off the WA 658 resource, the more marginal it will become. Worse, if it has a Freeway adjacent to it which would be viewed as the gateway to Melbourne the conditions that would be likely to be placed on what would be left of WA 658 would probably render it non-commercial."

The conditions to which Mr Love was referring related to the substantial buffer distances that would be required, among other things.

270 In my view there is no merit in the plaintiff's complaint that the decision-makers did not take into account the worth or value of the basalt stone resource. Nor does the matter of the basalt stone resource add anything of significance to his "unreasonableness" grounds.

271 The plaintiff's allegation (referred to in item 1.3.4 above) that "moving" the By-Pass to the plaintiff's land was "inconsistent with s 4(1)(b) and s 12(2)(c) of the P & E Act" and "the need in this case to exercise available statutory power positively so as to protect the stone resource by an alignment design and location having that effect" is rejected. It involves a "bootstraps" argument. At best, any obligation of the decision-maker was merely to "take into account"[437] the "protection of natural and man-made resources ... ".[438] The P & E Act has various other stated objectives, some of which would be advanced by the building of the By-Pass. As Osborn J said in an interlocutory ruling in this very proceeding,[439] the matters stated as objectives in s 4(1) of the P & E Act are obviously joint objectives requiring balancing in the public interest:

"If it were otherwise, the presence of any inconsistency of a proposed action with any element of planning objective whatsoever, would preclude the planning authority from taking such action, while the section would simultaneously require and compel such action to be taken if it implemented or gave effect to any other objective whatsoever. Such a construction of the effect of ss 4 and 12(1) is so manifestly absurd that it should be rejected out of hand."

272 The remaining allegations in item 1.3.4 are substantially wrong. On a proper analysis of the matter, and having regard in particular to Mr Love's own submissions to the FAC and the SAC about the impacts of the respective alignments on the stone resource, there was no or no significant inconsistency between the choice of Option Y (over Option 5) and the various Reports referred to, in terms of impact on the stone resource. That comment extends equally to the statement in the SAC Report that "For the reasons set out in Section 10.3.3 of the [FAC] Report the Committee does not consider that a change should be made to the potential alignment of Options Y or 5 immediately north of Cooper Street".

273 Turning to item 1.3.5, it is true that the FAC (and the SAC) regarded Mr Love's arguments about the desirability of price competition in the supply of basalt construction material as being outside the range of matters the details of which they should examine,[440] but they were entitled to take that view. It was not a normal planning consideration, nor was it covered by the Committee's terms of reference. In any event, the FAC was not fully convinced that any extraction at all would be possible on Love's land even with the By-Pass on Scanlon's land. The FAC said, on the basis of DNRE advice, that the extractable area shown in Mr Love's planning permit application was misleading and that "the potential area of extraction, if indeed any is possible, is far more limited than this".[441] Moreover, Minister Thwaites was informed by the memorandum of 16 November 1999 from Mr Eltringham[442] that, in the DOI's view, existing and proposed quarries north of Craigieburn Road would meet long term needs for stone resources. This advice was apparently accepted by Minister Thwaites, whose stated reason for refusing the quarry permit included that the proposed use "is not considered appropriate to the location" and also included a reference to the Whittlesea Planning Scheme (in which a preference for confining quarries to the area north of Craigieburn Road was indicated). This matter was not addressed by the plaintiff's counsel in oral argument. Even if (contrary to my view) "price competition" was a mandatory consideration, I am not satisfied that Minister Thwaites did not take it into account. Nor am I satisfied that it makes any contribution to the plaintiff's "unreasonableness" case.

274 As to item 1.3.8, I consider that in circumstances where there was and is a comprehensive statutory scheme in place for compensation (with a potential allowance of 10% for solatium) the possibility (or even the probability) of loss and damage to Mr Love from the acquisition of his land was not a consideration that the Minister was bound to take into account.

275 The other particulars of the plaintiff's "relevant considerations" case, except for the complaint about the Clonard Homestead Complex, add nothing of substance and are covered by what I have already said. I turn to the matter of Clonard.

276 As I have mentioned, it is one of the plaintiff's two major complaints that the route of the By-Pass set out in Amendment C23 takes in the bulk of the Clonard Homestead Complex. The points he raises in this regard give rise to most of the remaining administrative law issues in the case. So, again, it is convenient to deal with this topic as a whole, so as not only to address the "relevant considerations" ground but also to address the other Clonard-related issues. The plaintiff's case on Clonard is as follows.

277 He submits that Amendment C23 "gave effect" to a "decision" to "obliterate Clonard".[443] That decision, he submits, was made by the DOI public servant, Mr Woolner, not by Minister Thwaites. He says that Amendment C23 involved an invalid delegation of power by Minister Thwaites to Mr Woolner to that extent.[444] He impliedly submits that this allegation is covered by his "improper delegation" ground (item 1.6 above), and I believe that he would confine that ground to this particular allegation.[445] Contrary to the tenor of paragraphs 96-102 and 113-117 of the ASOC and of paragraph 46(d) of the plaintiff's written outline of submissions dated 28 July 2008, senior counsel for the plaintiff seemed to accept that, apart from the alleged delegation of the "Clonard" decision to Mr Woolner, any requirement for personal preparation of Amendment C23 by Minister Thwaites was sufficiently met in this case by the fact that Minister Thwaites personally signed the relevant documents. A corresponding view was taken by Morris J in East Melbourne Group Inc v Minister for Planning.[446] The plaintiff's outline asserts that East Melbourne Group Inc was wrongly decided on this point. However senior counsel did not so submit orally. In my view, the holding by Morris J was correct and I propose to follow it. Whether the plaintiff's claim about improper delegation to Mr Woolner is sustainable in the light of the holding of Morris J or on the facts is a matter to which I will return.

278 The plaintiff relies on the material concerning the historic features of Clonard referred to in the PAR, the FAC Report, the IDWP Report and the SAC Report, including his own family's long-standing, close connection with it.

279 He submits that the FAC and the SAC recommended that Clonard be protected.

280 He submits that the route of Option Y as recommended by the SAC (whose recommendation was adopted by Minister Thwaites) would substantially have avoided Clonard.

281 He submits that the By-Pass route shown on Map no 16 PAO as printed (putting aside the handwritten annotation) did not take Clonard. He submits that I should conclude from the evidence that that route was the subject of the original, abortive version of Amendment C23 adopted in June 2001.

282 On that basis he submits that I should infer or conclude that:

(b) a decision to protect it had in fact been made accordingly;

(c) Clonard was not "required" within the meaning of s 42 of the Transport Act 1983 as in force in 2001/2002;

(d) any (new) decision to take or demolish Clonard could not lawfully be made without allowing Mr Love a further opportunity to be heard (as a matter of natural justice or procedural fairness).

283 The plaintiff points out that it is common ground that Mr Woolner made the handwritten annotation on Map 16 PAO which allegedly brought in Clonard.

284 The plaintiff submits that Vicroads was of the view that there should be no provision for an interchange at O'Herns Road in Amendment C23.

285 He submits that there is no evidence that Mr Woolner or anyone else told Minister Thwaites that the ("new") maps for the final version of Amendment C23 took in Clonard. He invites me to infer that Minister Thwaites was unaware of the fact that Amendment C23 took Clonard.

286 Finally, he submits that Amendment C23 and the later decisions were invalidated because:

(a) the Minister failed to take into account that Clonard would be taken and demolished;

(b) further or alternatively, the decision to make Amendment C23 was, in part, invalidly delegated to Mr Woolner;

(c) the decisions involved the taking and demolition of Clonard and that was:

(ii) alternatively, supported by an illusory or misguided reason, namely to make provision for an interchange at O'Herns Road contrary to the view of Vicroads;

(iii) unnecessary and not "required" within the meaning of s 42 of the Transport Act 1983;

(iv) further or alternatively, such as to render the decision Wednesbury unreasonable.

287 I agree in substance with the defendants' responses to these points.

288 It is inapposite to say that there was a "decision" to "demolish Clonard" that was "given effect to" by Amendment C23. Rather, the proposed demolition would be a subsequent incident of the adoption of the By-Pass route chosen by Amendment C23.

289 If anything, the argument that the "social effects" of planning amendments are not a mandatory consideration is even stronger than the argument concerning "economic effects".[447] If "social effects" are not a mandatory consideration, a failure to take Clonard into account or a determination to give Clonard little or no weight could not contribute to a finding of unreasonableness. However, it is unnecessary finally to decide that point.

290 Clonard was not the place of residence of Mr and Mrs Love. The cottage and surrounds were the subject of a tenancy. No-one lived in the Homestead itself. Mr and Mrs Love merely intended, if possible, to reside there in the future.

291 It was fully apparent to Mr Love that both Options 2/5 and Option Y would involve the demolition of Clonard. He noted that repeatedly in his submissions to the FAC and the SAC. He was given every opportunity by the FAC and the SAC to make out a case based on the desirability of protecting Clonard. He put forward expert and other evidence accordingly. There is no suggestion that anything said by him or on his behalf in that respect was missed or misunderstood. Both the FAC and the SAC gave detailed attention to heritage issues, including Clonard and the dry stone walls on the property. The critical passage from Chapter 12 of the FAC Report[448] is set out above. It noted that Clonard had not been recognised under the Heritage Act 1995 or local planning schemes. (It is noteworthy that Mr Love had not even tried to obtain heritage protection for Clonard at the time when he might well have been expected to do so, namely during the hearings concerning the new format (VPP) Whittlesea Planning Scheme in early 1998.) The FAC Report went on to say that any significance is "unlikely to be more than local". It did say: "If it is possible to avoid sites, such as the Clonard Homestead by slight route changes, then the Committee believes this should be done". But it immediately qualified this by saying that none of the sites was so significant as to justify a major realignment and that none was a major feature in the assessment of options. Mitigation measures, such as "slight route changes or full documentation before removal" were considered sufficient to address any European heritage values. (The Roads Corporation has undertaken to ensure full documentation before demolition of Clonard.) The FAC did not include anything about Clonard in its formal recommendations.

292 The IDWP stated, under "Cultural Heritage Impacts", that both Options 5 and Y "have a potential impact on Clonard Homestead", but it still recommended them over Options X and Z in that respect.

293 The SAC noted Mr Love's submission that, since the publication of the FAC Report, his property "had been put on the Victorian Heritage Inventory as a link to the first half of this country in the area", and that "Options Y and 5 would see it destroyed". The SAC recognised that the listing was significant "in the area" but saw no reason to depart from the assessment in the FAC Report. In its conclusions on heritage, it said that it did not consider that the impact that Options Y or 5 would have on Clonard changed its rankings of options on heritage grounds. As mentioned above, its overall conclusion on heritage was that Option Y would have the least impact of all.

294 The plaintiff's submissions that the FAC and the SAC "recommended" that Clonard be "protected" are overstatements. Further, the SAC did not believe that it was recommending a route that would have avoided Clonard. Otherwise it would not have assessed the heritage significance of Clonard and it would not have referred to the possibility of slight route changes to avoid sites such as Clonard. An aerial photograph bearing the handwriting of Jenny Love, a member of the SAC, shows that Options Y and 5, as considered by the SAC, passed through Clonard.[449]

295 I am not satisfied, on the evidence, that the By-Pass route shown on Map 16 PAO (as printed) would have avoided the bulk of the Clonard Homestead as alleged by the plaintiff. Such a result would have been surprising, given the prior consensus that both Options 5 and Y would see Clonard destroyed. The plaintiff called a surveyor, Mr Czirom, who had previously done other work for Mr Love, in an endeavour to make good this proposition. However Mr Czirom acknowledged in his report that he was working under difficulties. The critical diagram in his report ("Plan No 1") was stated to have been scaled off a plan, designated Figure 2B, contained in Appendix 1 of the SAC Report. His report stated:[450] "The quality and scale of the plans in [the SAC Report] make it difficult to scale reliable dimensions. For more accurate dimensioning, I would require the original maps provided to the [SAC]. This report should be reviewed if and when such information comes to hand". He expressed similar reservations later in his report about all of the plans from which he was working.[451] In the witness box, Mr Czirom did not assert that he had ever obtained the "original plans" which in his report he had said he needed for accuracy. Under cross-examination he did say that he had had the benefit of a blow-up of Figure 2B from the SAC Report; and he claimed that he had that document with him in his file outside the Court. He was permitted to go to his file to get the document. Having done so, he was asked to produce it. He handed over a document to counsel accordingly. It turned out not to be a blow-up of Figure 2B at all. I was unimpressed by Mr Czirom's evidence.

296 In any event, even if Map no 16 PAO as printed did not take Clonard, I am not satisfied that it was part of the first, abortive version of Amendment C23 as approved by Minister Thwaites. It was a single page document, without attachments. There is no clear evidence that it was part of the abortive amendment. The plaintiff submits that there is no evidence of any other map being produced for the purposes of Amendment C23 prior to the date of the abortive amendment (15 June 2001). However, despite all of the discovery that had occurred in this case, it seems that discovery had not been sought or given of the maps that formed part of the abortive amendment. Senior Counsel for the plaintiff unsuccessfully called for them at a late stage of the hearing.[452]

297 In any event, there is substantial evidence that any and all changes to the eastern boundary of the proposed public acquisition overlay in the relevant area were completed by 28 March 2001. In part, Mr Czirom's evidence tended to support that view.[453] However I need not and do not adopt any concluded view on that aspect.

298 I do not think that anything of significance turns on whether or not the abortive amendment would have taken Clonard. There is no evidence as to whether Minister Thwaites had a greater or a lesser appreciation of the details of the June 2001 maps as compared with the August 2001 maps.

299 I am not satisfied that Mr Woolner was responsible for the taking of Clonard to the exclusion of Minister Thwaites. There is no evidence to establish this as a fact. Mr Thwaites signed off on the entirety of Amendment C23. The presumption of regularity applies. I am not satisfied that there was any improper delegation.

300 Even if a conscious determination to exclude Clonard had been arrived at by Minister Thwaites in June 2001, it would, of course, have been open to him to change his mind. He would have been under no obligation to give Mr Love a further opportunity to be heard. Mr Love had not been apprised of the abortive Amendment. He had not been lulled into any false sense of security. He had already had a full opportunity to put his case. I do not agree with the plaintiff's submission that any decision to include Clonard in Amendment C23 would have been surprising. It is true that Vicroads had initially cautioned against installing a full diamond interchange at O'Herns Road and had submitted that any decision about an interchange in the vicinity of O'Herns Road should be left for a later occasion. But the FAC had taken a different position. It recommended that provision should be made immediately for a future interchange "in the vicinity of" O'Herns Road. The SAC maintained its support for that approach. Indeed, on my reading of the FAC Report and the SAC Report, the Committees remained open to the possibility of making provision for an interchange at O'Hern's Road, despite VicRoads' concerns. (Of course, that did later occur as part of the C44 process, by which time VicRoads' concerns had been overcome.) The SAC observed that Vicroads "should identify with certainty the future location for such an interchange as part of its detailed planning for the freeway". Its formal recommendation was:

"VicRoads should identify with certainty the future location for an interchange in the vicinity of O'Herns Road. Provision for this should be included in the amendment to the Whittlesea Planning Scheme."

301 It is known from the emails of 5 June 2001 that, by then, Minister Batchelor wanted "the O'Hearns [sic] Road full diamond design" from Vicroads as a priority, and was keen for the amendment to be approved with the full interchange in and not to do it as two separate amendments. In the end, senior counsel for the plaintiff seemed to acknowledge that this was a likely explanation for any change that might have occurred as a result of Mr Woolner's hand annotations. The mere fact that Vicroads had previously had concerns about doing what was asked for is hardly enough to show that the taking of Clonard was "gratuitous" or unreasonable.

302 I disagree with the plaintiff's submissions about the construction of s 42 of the Transport Act 1983. In my view, s 42 does not erect a test of absolute necessity. Nor does it erect an objective test in the sense that the courts may determine for themselves whether particular land which the Corporation seeks to acquire "is or may be required" by the Corporation. The question is subjective, not objective. What "is or may be required by the Corporation for or in connexion with the performance of its functions or the achievement of its objectives" is a matter for the Corporation, subject only to the normal supervisory jurisdiction of the Supreme Court.

303 A comparable provision, namely s 161 of the Land Administration Act 1997 (WA), was recently interpreted in a corresponding fashion by the Court of Appeal (WA) in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[454] That section provided, so far as relevant, that whenever the Crown was authorised by statute to undertake, construct or provide any public work "and the use of any land or interest in land is required for the purposes of the work, then ... any interest in the land held by a person other than the Crown may be taken". The provision did not speak of land being required "by" anyone in particular. Despite this, McLure JA said:[455]

"The determination of what is 'required' does not involve an objective test to be determined by this court. The PTA has the statutory power to make all relevant decisions in respect of any railway by a special Act. Whether the use of land is 'required' is to be determined by reference to valid and binding exercises of discretionary power made by the PTA under the Public Works Act."

304 It was entirely open to Minister Thwaites to proceed on the basis that the By-Pass Excision land, including Clonard, may be required by the Roads Corporation for or in connection with the performance of its functions or the achievement of its objects. Of course, a reservation of land normally precedes any acquisition by the Roads Corporation. So it may be more correct to say that s 42 of the Transport Act 1983 does not impinge on the discretion of the planning authorities at all. In any event, it was certainly no barrier to Amendment C23.

305 If the fact that Clonard would be demolished as a result of Amendment C23 was a mandatory consideration for Minister Thwaites or for any of the other relevant decision-makers (as I will assume, but without deciding) then I am not satisfied that any of them did not take it into account. Nor am I satisfied that it was a fact that tended to indicate that any of the decisions in question was Wednesbury unreasonable or otherwise invalid. The evidence which is referred to above about Mr Love's largely unsuccessful attempts to gain heritage protection for Clonard after February 2002 was put before me without objection. Ultimately, however, the plaintiff's counsel submitted that, because it post-dated the acquisition, it was irrelevant to an assessment of the validity of the relevant decision-making. I have proceeded on that basis.

306 It follows from the above that I am not satisfied that Minister Thwaites failed to take into account any (mandatory) relevant considerations in connection with Amendment C23.

307 In view of the above, there is no basis for a finding that Amendment C23 was made in excess of, or in the absence of, power.

308 Again, what I have said above indicates sufficiently that I am by no means satisfied that Minister Thwaites' decision was manifestly unreasonable.

Amendment C23: delegation: personal preparation

310 So far as Clonard is concerned, I have already rejected this ground.

311 The plaintiff claims that he was entitled to but was denied a fair hearing in relation to the imposition of Environment Significance Overlay ESO3 on his land as a result of Amendment C23.[456]

312 I reject this argument. The Minister had exempted himself under s 20(4) of the P & E Act from the usual notice and hearing requirements of the Act in respect of planning amendments. There was no room left, at least in the present case, for the operation of any common law natural justice principle that might otherwise have obliged the Minister to give notice to Mr Love about the possibility that an ESO might be applied to part of his land. The plaintiff raised no argument to the contrary.

313 In any event, the possibility of extending the existing ESO was at least indirectly flagged in the terms of reference for the FAC and the SAC.

314 I note that the ESO has had minimal effects on the Love land. The ESO is principally designed to protect, and to preserve views of, the Merri Creek area to the west of the plaintiff's land. The plaintiff was not even aware of its existence until he happened to discover it by chance in 2005. He is free, of course, to make any representations he sees fit to the Whittlesea Council or the Minister with a view to the revocation or amendment of the ESO.

315 There is no substance in this complaint. It is rejected.

Transport Minister's approval of the acquisition

316 In effect I have already dealt with all of the matters raised in relation to Minister Batchelor's decision-making. For the same reasons as before, I reject the attack on his approval of the acquisition of the By-Pass Excision Land.

317 The matters raised in items 3.1-3.6 (inclusive) and 3.10-3.15 (inclusive) raise nothing additional. I reject these grounds for the same reasons as before.

Formal requirements for the Notice of Intention to Acquire

318 In pursuance of ss 6 and 8(1) of the Land Acquisition and Compensation Act 1986 (the LAC Act) and regulation 7 of the 1998 Regulations thereunder, on or about 6 December 2001 the Roads Corporation prepared and sent to Mr Love a document headed "Form 1: Notice of Intention to Acquire" dated that day.

319 Mr Love contends that the document did not comply with the requirements of the provisions to which I have referred. He further contends that the notice was therefore invalid and, that, in consequence, all steps taken thereafter involving the acquisition of the By Pass Excision Land were invalid and ineffective in law.

320 I am not persuaded that the notice of intention to acquire did not comply with the requirements of the legislation.

321 Regulation 7 provides that a notice of intention to acquire an interest in land under section 6 (of the LAC Act) "must be in the form of Form 1 in Schedule 2 (of the LAC Act)". There is no suggestion that the notice failed to comply with any other legislative provision. The only point raised is that it was allegedly not "in the form of Form 1 in Schedule 2". Form 1 is drafted in a flexible way so as to be suitable for use by any kind of acquiring authority.

322 The notice purported to be in the form of Form 1. It followed the structure and order of Form 1. The plaintiff acknowledges that it clearly identified the person whose land was to be acquired, namely Mr Love, and that it accurately specified the metes and bounds of the land to be acquired (being the By Pass Excision Land) and the name of the proposed acquiring authority, namely "Roads Corporation (VicRoads)". The only part of the prescribed form (Form 1) with which the notice allegedly did not correspond sufficiently reads as follows:

"The [name of Authority] thinks that the land is suitable for [set out details of purpose for which land is to be acquired and reasons why the Authority thinks this is so]."

323 The defendants rely principally on the following entries in the notice served as constituting compliance with this part of the form:

"VicRoads thinks that the land is suitable for the construction of the Craigieburn Bypass-Hume Link.

The land described is reserved for a public purpose under the Whittlesea City Planning Scheme.

At the present time it is expected that VicRoads may require possession of the land on approximately 1 May 2002. This date may change."

324 A statement pursuant to s 8(2) of the LAC Act, regulation 10 and Form 4 of Schedule 2 to the Regulations, setting out Mr Love's principal rights and obligations in relation to the notice of intention to acquire, accompanied the notice. It was in proper form.

325 In my view it is proper to take into account the whole of the notice, and in particular the reference to the reservation of the land under the Whittlesea Planning Scheme, notwithstanding that the standard form makes separate provision for the Authority to state whether or not the land is reserved for a public purpose under a planning scheme (and to identify the scheme). In the present case, in all the circumstances, the statement that the land was reserved under the Whittlesea Planning Scheme was pregnant with information, especially for a person in the position of Mr Love. In my view the notice as a whole told Mr Love clearly enough that the purpose of the proposed acquisition of the land was to enable the Roads Corporation to put a road on it; and it also told him that the Roads Corporation thought that the land was suitable for that purpose because the land was suitable for, and indeed reserved for, the proposed Craigieburn Bypass-Hume Link (with which, of course, Mr Love was very familiar).

326 In my view the notice complied sufficiently with the legislative requirements.

327 There is no need for me to deal with the opposing submissions made by the parties concerning the consequences that might have followed if I had been of a different view.[457]

328 The claims against Minister Delahunty concerning her approval in October-December 2002 of Amendment C46 (introducing the Road Zone) are almost entirely repetitious of the claims against Ministers Thwaites and Batchelor which I have rejected. To that extent the plaintiff's claims in relation to Amendment C46 are likewise rejected.

329 The plaintiff's counsel did not address the claims against Minister Delahunty orally at all. He advanced nothing to support the proposition in the written outline that she "wished" industrial development to take place on the 150 metre wide strip of the Scanlon land. Accordingly I take it that that proposition is, in truth, no different from the allegations about industrial use of the Scanlon land with which I have already dealt. The ground is rejected accordingly.

330 There remains the proposition that Minister Delahunty did not take into account the "Second Advisory Committee Report Inconsistency". This is defined in the ASOC,[458] in effect, as the "inconsistency" between the reasons given by the FAC for rejecting variations A and B of Options 2/5 and the subsequent recommendation of the SAC in favour of Option Y (ahead of Option 5). As is apparent from what I have already said, I do not consider that there was any or any significant inconsistency of the kind alleged. Mr Love made little point before the SAC about the distinction between the western boundary of the Scanlon land and the eastern boundary of his own land. In the circumstances there was no occasion for the SAC to make any sharp distinction. That sufficiently explains the so-called inconsistency, at least for the purposes of this case, being a case confined by the administrative law principles to which I have repeatedly referred.

Amendment C62: The rezoning of the strip of Scanlon land

332 The claims against Minister Delahunty in relation to Amendment C62 fail for the same reasons.

333 No administrative law error at all having been established, there is no need to consider whether any or what relevant steps might have been rendered invalid by any such error.

334 In response to the Roads Corporation's submission, that, in any event, its title to the By-Pass Excision Land is indefeasible, the plaintiff's counsel said next to nothing. He merely asserted that the "in personam" exception would apply, without any real supporting argument. I need not and do not decide the point, but, as presently advised, I am unable to see any answer to the Roads Corporation's submissions.[459] That may, as the plaintiff submits, leave open the possibility of damages for negligence, if any case of negligence could be made out.

335 Again, strictly speaking, I need not address estoppel, laches or the discretion to refuse relief.

336 However I would observe that it is almost fanciful to think that, even if some administrative law error or errors had been established, this Court would have made orders declaring the acquisition invalid at this late stage. Any such orders would either have been moot or would have affected the interests of many parties not joined to this proceeding, with the added risk of enormous and unwarranted public inconvenience. It is not conceivable that, on remittal, a decision to move the By-Pass would or could sensibly be made now.

337 On my findings, the trespass and nuisance claims do not arise.

338 The plaintiff having tied his negligence claims to success in the administrative law case, I need not address the negligence claims.

339 However I note in passing the decision of the New South Wales Court of Appeal in Precision Products (NSW) Pty Limited v Hawkesbury City Council[460] given since judgment was reserved in this matter. In comparable circumstances, the Court denied the existence of any duty of care. Allsop P (with whom Beazley J and McColl JA agreed) said:[461]

"118 It is unnecessary to repeat the considerations discussed by the Chief Justice in Paige at the above pages, which I gratefully and respectfully adopt. The duty contended for here amounts, in substance, to the assertion of a compensatory claim for administrative error: cf Dunlop v Woollahra Municipal Council [1982] AC 158; Takaro Properties Limited v Rowling [1986] NZCA 27; [1986] 1 NZLR 22; and Rowling v Takaro Properties Limited [1987] UKPC 2; [1988] AC 473.

119 The lack of coherence between administrative law doctrines and the imposition of monetary compensation for the flawed or failed exercise of governmental power is illustrated later in these reasons in the discussion of breach of the posited duty. As will be seen, if standards of administration are to be regulated and enforced by recourse to the recovery of damages at common law, the courts must necessarily become involved, not just in the constitutional role of ensuring legality, but also in laying down standards of administrative conduct by reference to a standard of reasonable care. This standard setting and its enforcement by the courts would be in relation to the exercise of power of another branch of government and in circumstances where there exist machinery and techniques for the setting and maintenance of good administration and good government. The courts, of course, play a central role in that machinery in supervising the legality of the activity of government. To infuse common law duties and the recovery of damages in such a field as the issuing of notices under s 91 where governmental (EPA supervision) and legal (judicial review) controls already exist would introduce an undesirable incompatibility and lack of coherence to the regime of environmental protection.

120 The above is not to deny the continued force of Caledonian Collieries v Speirs and like cases. When a Council exercises a power to build a structure, approve a plan, give permission for an act or otherwise engage in activity, it may well be required (on pain of liability in damages) to exercise care in relation to someone who may be affected by the power's exercise. What tends to strike at the coherence of administrative law here is the positing of a duty to exercise reasonable care not to make a flawed decision by, for instance, failing to give procedural fairness or failing to confine the power within statutory limits. Such a duty, as contended for here, would tend to open public authorities to the spectre of compensation for flawed decision making, in circumstances where the validity of the exercise of power can be tested and resolved by judicial review, and where standards of competence and skill are well able to be dealt with by an appropriate regime of governmental administration."

340 Further, as at presently advised, I consider that the plaintiff would have had the greatest difficulty in showing that any of the relevant persons or bodies made any negligent or careless mistake at all, or that the same caused any compensable loss or damage to him.

341 The proceeding must be dismissed. I will hear the parties on the question of costs.

I certify that this and the 146 preceding pages are a true copy of the reasons for Judgment of Cavanough J of the Supreme Court of Victoria delivered on 23 June 2009, as revised on 3 December 2009.

[1] Love v Thwaites and Others (No 3) [2003] VSC 60 (6 March 2003) (Nettle J). See also Love v Thwaites and Others (No 2) [2003] VSC 53 (28 February 2003) (Nettle J).

[2] Love v Thwaites [2006] VSC 57.

[3] The pages cannot readily be counted because the page numbering is now discontinuous, and some "pages" have multiple folios, but the final court book still appears to occupy well over 8,000 pages.

[4] (1990) 170 CLR 1 at 35.

[6] Friends of Merri Creek v Meakins [2003] FCA 671.

[8] The following summary of the relevant provisions is based in part on the account in the State of Victoria's outline of submissions dated 19 August 2008, which, to that extent, is not in dispute. See also Whitehorse City Council v Golden Ridge Investments Pty Ltd [2005] VSCA 198; (2005) 13 VR 275 at 281-283, to which the plaintiff drew attention, for a comparable exposition by the Court of Appeal of the Victorian statutory planning framework.

[14] See, for example, clause 11.01 of the Whittlesea Planning Scheme.

[15] See section 7(1)(b) and (3) and s 12A of the Act.

[16] See clause 21.01 of the Whittlesea Planning Scheme. Direction 7 was entitled "Plenty Valley Growth Area"; it was repealed on 1 September 2006.

[17] See clause 21.01 of the Whittlesea Planning Scheme.

[19] [2005] VSCA 198; (2005) 13 VR 275 at 283, [26].

[20] Referring, apparently, in this regard to s 4(2)(c) in particular and to s 4(1) generally.

[21] Paragraph 91 of the ASOC, admitted by both defendants.

[25] Sub-sections 5(2)-(4B) of the Act provide for irrelevant exceptions.

[26] As in force between 1 January 1999 and 30 June 2003.

[27] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.

[28] It appears that no statement of reasons was sought from any Commonwealth decision-maker under s 13 of the Administrative Decisions (Judicial Review) Act 1977 either. I express no view as to whether either section would have applied.

[29] CB 5767. Compare s 12(2) of the P & E Act.

[30] [2005] VSC 242; (2005) 12 VR 448.

[31] Plaintiff's outline of submissions page 15, footnote 68.

[32] [2005] VSC 242; (2005) 12 VR 448 at 470 [62].

[33] Ashley and Redlich JJA; Warren CJ dissenting.

[34] [2008] VSCA 217 at [308].

[38] What it may expressly or impliedly incorporate or adopt by reference is another matter.

[39] Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ.

[40] [2008] VSCA 217 at [312].

[41] See Minister for Immigration and Ethnic Affairs v Arslan [1984] FCA 231; (1984) 55 ALR 361 at 362-365.

[42] In addition to Parramatta City Council v Hale, loc. cit, see Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [55] and cases there cited and Ventrice v Riva Plaster Pty Ltd [2008] VSC 415 at [12] and cases there cited. Without a statement of reasons it can be a difficult burden to discharge: see, eg Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212.

[43] [2008] VSCA 217 at [174]- [184], omitting [179]-[182].

[44] Compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 221 at 355-360; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2000 [2003] HCA 30; (2003) 198 ALR 59 at 61 [4]- [5] per Gleeson CJ, 72-73, [57]-[60] per McHugh and Gummow JJ; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, 2008, at [4.420]-[4.425].

[45] Save where indicated to the contrary, the events described in this section of these reasons are believed to be common ground. See especially the amended joint chronology (of 35 pages) prepared by the parties and forwarded to the Court (after the conclusion of the hearing) under cover of a letter dated 12 September 2008.

[48] Vicroads told Minister Craige that it was not anticipated that the change in alignment would increase the cost of the project, which was then estimated at $160 million.

[52] Which is the section principally in question in this case.

[66] See the relevant item in the joint chronology; and see CB 2550.

[77] That is, before any recommendation of the FAC.

[78] CB 8618-8619 (handwritten notes, later typed up in agreed form for the court book).

[80] See also the Valuer-General's memorandum of 22 October 1997 to Mr Gray of Vicroads at CB 8584.

[107] The use of the word "possible" here is noteworthy, in my view.

[108] CB 3815 (Assembly Hansard for 10 November 1998).

[109] See, esp, CB 3494 (letter of 2 September 1998 to Minister Maclellan).

[110] See, esp, CB 4408 (Public statement of Mr Haermeyer of 15 December 1999 - after the election of the State Labor Government.

[115] However, the evidence indicates that copies may not have actually reached all of those parties. In his oral evidence Mr Maclellan strongly denied that he had seen the letter, and I accept his denial.

[126] CB 9718, 9719-9723, 9743-9750, 9751-9761.

[129] CB 9752, 9753, 9754, 9755, 9757, 9759.

[132] It was dated "October 1999": CB 4076-4367.

[133] See Friends of Merri Creek Inc v Meakins [2003] FCA 671.

[134] See Section 4 of the FAC Report, entitled Legislative and Policy Context, at CB 4115-4136. See also the FAC's comments about its evaluation model: CB 4139.

[140] CB 4184, 4185 (2 instances), 4186.

[142] CB 4188-4197. The plaintiff, in particular, relied heavily on these extracts from the Report.

[143] Cooper Street Precinct Strategy: Tract Consultants (October 1996) Section 5.2.3, page 35.

[144] See Cooper Street Precinct Strategy: Tract Consultants (October 1996) Sections 5.2.3 and 5.2.4, pages 35-36.

[154] CB 4423. See also CB 4412 - 4414, 4418-4424.

[158] CB 4451-4467. The facsimile header indicates that it was actually transmitted at approximately 1pm on Friday 31 March 2000. See, eg, CB 4458, 4463.

[159] The Monday was actually 3 April 2000.

[165] CB 4573-4902. See also at CB 11,245-11,600.

[169] My emphasis. In this proceeding, the inclusion of these two sentences in the IDWP report, and the use of the phrase "agreed industrial use" in particular, is heavily criticised by the plaintiff, giving rise to certain issues between the parties. See further below.

[182] My emphasis. This sentence reflects in part the emphasised passage in the IDWP's report set out above. It is also related to an issue between the parties that would have fallen for consideration if the negligence case had needed to be considered in detail.

[185] CB 11,998-12,007 and 12,010-12,019.

[186] Mr O'Brien apparently spoke to the written submission of 13 October 2000 reproduced at CB 5044-5099: see CB 12,019. That submission was amended on 8 November 2000: see CB 5232-5237.

[188] CB12009. There was a controversy between the parties as to the late discovery by Mr Love of this map.

[231] The decision to adopt Option Y had, of course, been publicly announced as early as 21 February 2001, but see further below.

[248] Love v Thwaites and Ors (No 3) [2003] VSC 60.

[256] CB 16,487-001-009; 16,487-0010-011; 16,487-015-017.

[267] Towards the conclusion of his final address, senior counsel for the plaintiff indicated that the plaintiff continued to rely on his (extensive) outline of written submissions dated 28 July 1998: transcript, 963.

[268] See the ASOC, as modified by the plaintiff's written outline of submissions dated 28 July 2008, and as further modified by the oral submissions made by the plaintiff's senior counsel.

[269] See especially pages 15-48 of the outline of submissions.

[270] See especially paragraphs 108 and 118 of the ASOC as confined and explained by the Plaintiff's written outline of submissions dated 28 July 2008, especially at pp 15-27.

[271] Here and below, the "plaintiff's particulars" are, for the most part, expressed in language that accords substantially with the language of the plaintiff's written outline which, in turn, largely reflects the language of the ASOC. Some defined terms have been replaced and some matters have been summarised.

[277] CB 3490, 3815, 3970, 5041 and 5472.

[281] [2005] VSC 242; (2005) 12 VR 448.

[282] See paragraphs 129-131 of the ASOC, as modified by paragraph 47 of the plaintiff's outline of submissions dated 28 July 2008.

[284] Defined in para 134 of the ASOC.

[285] Citing Prest v Secretary of State for Wales (1982) 81 LGR 193, 198, among other cases.

[286] In addition to the matters already mentioned, the plaintiff refers in his written outline to the matters raised by Mr Haermeyer and Mr Batchelor in an article published in the Whittlesea Post on 15 July 1998, but no CB reference is there given. At transcript, 979-980 I asked Mr O'Bryan SC to supply a court book reference to this article if the plaintiff continued to rely on it. Mr O'Bryan said he would, but no such reference was ever supplied. I have not been able to find the article in the court book.

[287] This is repetition. The allegation that none of the By-Pass Excision Land was necessary is included within items 2.1-2.3 and the particulars thereunder.

[288] See pages 32-42 of the outline of submissions.

[289] ASOC paragraphs 132-134; outline of submissions para 48(a).

[292] See especially pages 42-45 of the plaintiff's outline.

[293] Outline of Submissions, para 50(b)(iii).

[294] This is a defined term - see below.

[295] See especially pages 45-48 of the plaintiff's outline.

[296] See especially paragraphs 52-96 of the plaintiff's outline.

[297] See especially paragraphs 70-71 of the outline.

[298] See especially paragraphs 190-197 of the ASOC and paragraph 72 of the outline.

[299] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [345].

[302] [2009] HCA 12. See esp at [55] per French CJ.

[303] The defendants relied on, among other cases, Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87 at 106; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678; and Parramatta City Council v Fazzolari [2008] NSW 132 (since reversed).

[304] Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; (1990) 170 CLR 649 at 672 per Gaudron J.

[309] Memo of 26 July 1999, CB 9684-9685. See above.

[310] Briefing note of 6 August 1999, CB 9719-9723. See above. My emphasis.

[315] In addition to what is set out above under "Ascertaining the reasons of the decision-maker: the East Melbourne Group case and general principles of judicial review."

[316] Aronson, Dyer and Groves, op. cit, at [5.10].

[317] [2003] HCA 35; (2003) 216 CLR 277 at 288, [20]. My emphasis.

[319] [1986] HCA 40; (1986) 162 CLR 24 at 40. See also Ballantyne v WorkCover Authority (NSW) [2007] NSWCA 239 at [113].

[321] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 42 per Mason J. See also Aronson et al, op. cit, [5.20] and cases there cited.

[322] As pleaded in paragraph 154 of the ASOC.

[323] See esp Whittlesea Council letters to Minister Maclellan at CB 6307 and 6309.

[325] CB 9283. My emphasis. See also, to the same effect, the table at CB 9335.

[329] See CB 4469-4473, esp at 4469 and 4472.

[331] In this regard the plaintiff relied on an asserted analogy with the facts of Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24.

[334] In any event, compare Harburg Investments Pty Ltd v Mackenroth [2005] QCA 243; [2005] 2 Qd R 433; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422.

[337] See generally Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39-42 per Mason J; Aronson et al, op cit, at 281-292.

[338] [1986] HCA 40; (1986) 162 CLR 24 at 55.

[339] [2000] HCA 38; (2000) 200 CLR 442 at 452 [20]. See also Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160; (2000) 102 FCR 517 at 551 [132]; Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 at 236 per Carr J (with whom Sheppard and Gummow JJ agreed), distinguishing "relevant considerations" from "particular pieces of evidence"; compare Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156 at 188-191 [161]- [176] per Tobias JA (with whom Beazley JA agreed) and at 193-197 [184]-[199] per Basten JA (dissenting); Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [66] and [80]-[81] per Basten JA (with whom Handley JA and Hunt AJA agreed).

[340] Outline dated 20 August 2008, para 212.

[341] See the recounting of the relevant history, and the explanation for the "move", in the abovementioned memorandum from the CEO of Vicroads (Mr Jordan) (with input from Evans) to Minister Batchelor dated 27 September 2000: CB 5035-5036.

[342] Compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 37-39 and 45 per Mason J and 65-67 per Brennan J.

[343] See Bushell v Environment Secretary [1980] UKHL 1; [1981] AC 75 at 95; Peko-Wallsend, at 65-67 per Brennan J.

[344] See, eg, Mr Aleksic's notes of his discussions with Mr Scanlon: CB 9751-9761, esp at 9753, 9755.

[346] Ibid. See also the Valuer-General's memorandum of 22 October 1997 at CB 8584 referred to above.

[347] See the passage from the judgment of Brennan J in Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 55 set out above.

[348] [2004] VSC 369 at [75].

[349] (1987) 9 NSWLR 719 at 722.

[350] [1962] HCA 36; (1962) 107 CLR 142 at 154.

[351] [2004] HCA 63; (2004) 221 CLR 30 at 65.

[352] See, esp, ss 62(2)(e), 62(2)(f), 98(3), 102 and 111. And see Roads Corporation v McCarthy (2004) VSC 369 (Osborn J); cf Ramsdale v Roads Corporation (1982) LGRA 511 (Gobbo J).

[353] [2004] VSC 369 at [52]- [82], esp at [77].

[355] See also Interpretation of Legislation Act 1984, s 45.

[356] Pearce and Geddes, Statutory Interpretation in Australia, 6th edition 2006, [7.18]-[7.21].

[357] As Osborn J said in his unreported interlocutory ruling in this proceeding on 15 December 2006: "[T]he planning framework objectives contained in s 4(2) ... are distinct from the objectives of planning in Victoria which are referred to in s 12(1)(a). They are facilitative and administrative objectives".

[359] See now s 60(1A) of the P & E Act.

[360] [1998] 2 VR 406 at 413-414 per Hayne JA with whom Brooking and Charles JJA agreed.

[361] See R v Secretary of State for Transport and Others; ex parte De Rothschild and Another [1989] 1 All ER 933 and cases there cited, especially Prest v Secretary of State for Wales (1982) 81 LGR 193.

[362] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 42 (per Mason J).

[363] As to the FAC Report, see CB 4148 referred to above (accepting VicRoads' valuation on a "broad brush" basis) and CB 4171 (the table of comparative total costs); and see also at CB 4172 referred to above (dealing with compensation for the Love land in particular). As to the SAC Report, see the summary of its chapter on economics set out under "Factual History" above.

[364] And possibly with land to the north of O'Hern's Road.

[365] Cf Foster v Minister for Customs [2000] HCA 38; (2000) 200 CLR 442, loc. cit.

[369] At the time, proposed Amendment L143 covered the whole of the land. Further, it was acknowledged in Mr Masten's evidence that, at least up until 21 January 1998, Mr Scanlon was seeking the rezoning of the whole of the land: transcript, 587.

[380] Transcript, 577. See also, generally, at 575-577.

[382] Despite his rather vague evidence about other contacts from the Scanlon interests, at transcript, 576.

[384] See especially transcript, 588-590.

[387] Compare Valuation of Land Act 1960 s 5A, esp. s 5A(3)(a).

[389] See Aleksic's draft ministerial note referred to above: CB 8783-8784.

[393] See Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 (Osborn J) at [3]-[6].

[394] [2008] HCA 5; (2008) 233 CLR 259.

[395] [2004] HCA 63; (2004) 221 CLR 30. See above.

[396] See [2008] HCA 5; (2008) 233 CLR 259 at 277-278 [54].

[398] Outline of submissions, footnote 80.

[400] Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 at 236 (loc cit).

[401] Transcript, 50 (line 11) to 53 (line 21).

[403] [1985] FCA 47; (1985) 6 FCR 155 at 169-170. See also Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 49-50; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 320-321 per McHugh J (dissenting); Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at 172-176; Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108 at [109]- [110].

[406] [1992] FCA 579; (1992) 39 FCR 458 at 469.

[408] As his counsel acknowledged: transcript, 413.

[410] Planning scheme amendments must be laid before both Houses of the Parliament and are subject to disallowance by either House: P & E Act s 38. The defendants have pointed to s 38 as indicating that a great deal of latitude should be given to the decision-maker.

[411] See Vanstone v Clark (2005) 224 ALR 666 at 695 [106] per Weinberg J. I note that it is not suggested in Pearce and Argument's leading Australian text on Delegated Legislation (3rd edition, 2005) that the "considerations" grounds are available in an attack on delegated legislation, whereas various other possible grounds, including a particular form of "unreasonableness", are discussed.

[412] Compare One Tel Ltd v Australian Communications Authority [2000] FCA 1085; (2000) 176 ALR 529 at 537-542 per Hely J; Pearce and Argument, Delegated Legislation in Australia, 3rd edition, 2005 at [21.3] and [21.8] and cases cited in those paragraphs.

[413] When his solicitor, Mr Stevens wrote to various authorities as mentioned above: CB 14,909.

[415] CB 9757. The taking of those very steps is applauded by the plaintiff in his pleadings and submissions in this case, as indicated above.

[417] CB 9126-9127. See also CB 9119 (Table D6) and 9123 (Table D8).

[419] Based on an assumption that quarrying was the highest and best use of the land and certain other generous assumptions.

[420] Plaintiff's outline, footnote 80 and see CB 2868-2880 and 2882-2892 referred to above.

[425] CB 9295. Transcript, Love, 482 lines 16-19.

[430] Love, transcript, 492-493, survey plan CB 1101, aerial photograph CB 11,817.

[433] Ibid. My emphasis. Acknowledged by Mr Love in evidence at transcript, 485.

[434] See CB 3954-3956, referring (at 3955) to the "marginalisation" of quarry operations that would be caused by Options 2/5.

[435] CB 12,002, 12,014. Earlier, in June 2000, Mr Stevens had written to Minister Thwaites asserting that two (my emphasis) of the (then) proposed alternate routes "would have the effect of permanently (emphasis in original) preventing the further development of the extraction of construction rock from the Love property".

[436] CB 12,033. My emphasis. See also Mr Love's evidence (transcript, 448) to the effect that in 1997 in communications to Minister Craige and Mr Jordan he had "made it pretty clear as I thought that where I believe the freeway should have gone was back up Merri Creek. I didn't mention Mr Scanlon's land".

[439] Given on 15 December 2006. See also the comparable observations of the New South Wales Court of Appeal in Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697, esp at 704.

[443] Transcript, 646 (line 20) - 647 (line 5).

[446] [2005] VSC 242; (2005) 12 VR 448 at 474-475 [76]- [77]. This aspect of his Honour's decision was not challenged on appeal.

[453] See the submissions of Senior Counsel for the first defendant at transcript, 1169-1174.

[454] [2008] WASCA 211.

[455] At [61]. See also at [136]-[137] per Buss JA. See also the cases cited in each place respectively.

[456] It also affected other land along the Merri Creek environs.

[457] The parties referred to SS Constructions Pty Limited v Ventura Motors Pty Limited [1964] VicRp 32; [1964] VR 229; Accident Compensation Commission v Detar [1989] VicRp 82; [1989] VR 931 at 938; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Hume Doors & Timber (Qld) Pty Ltd v Logan City Council [1999] QSC 350 at [17]; and ETSA Utilities Pty Ltd v Corporation of the City of Unley [2000] SASC 74 at [10]- [15].

[459] See especially City of Canada Bay Council v Bonaccorso [2007] NSWCA 351 at [43]- [45], [57]-[63] and [88].

[460] [2008] NSWCA 278 (31 October 2008).