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[2025] VSC 525
General information, not legal advice.
Supreme Court of Victoria
2025-08-28
Quigley J
Original judgment source is linked above.
ADMINISTRATIVE LAW - Judicial Review - Strategic Planning - Planning and Environment Act 1987 (Vic) ('P&E Act') Part 3AAB - Distinctive areas and landscapes declaration for Bellarine Peninsula - Minister's decision to finalise statement of planning policy - Whether decision affected by irrationality or unreasonableness - 'Evident and intelligible justification' and 'genuine consideration' - Whether Minister genuinely engaged with recommendation of advisory committee - Whether Minister genuinely considered the community consultation as obligated - Whether error in the Minister's decision to approve statement of planning policy by reason of a pre‑election commitment - Apprehended bias - Consideration of apprehension of bias where decision made by elected official - Decision made not legally unreasonable or irrational - No bias - Minister entitled to take into account policy commitment.
PLANNING LAW - Role of an advisory committee to which advice had been sought - Statutory interpretation - Exercise of discretion under s 46AV of the P&E Act.
Zeally Investments Pty Ltd v Minister for Planning [2023] VSC 755, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Haneef v Minister for Immigration and Citizenship [2007] FCA 1273; (2007) 161 FCR 40, Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464, Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205; (2017) 256 FCR 197, Minister for Families and Children v Arthur (2016) 51 VR 597, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, referred to; Stambe v Minister for Health [2019] FCA 43; (2019) 270 FCR 173, distinguished.
1 The Plaintiffs are landowners who hold interests in land on the Bellarine Peninsula, a peri-urban area located in the south-west of Port Phillip Bay, subject to the Greater Geelong Planning Scheme (the 'Scheme').
2 The future extent of the use and development of the Bellarine Peninsula, much like the neighbouring Surf Coast region,[1] has been the subject of contention for a number of years.
3 In 2018, the State Government committed to enhanced planning controls for the Bellarine Peninsula. This approach to the long-term planning for the Bellarine Peninsula was announced by the Premier in the lead up to the 2018 State election.[2]
4 In 2019, the planning process to facilitate this announcement commenced with a public consultation and preparation of assessments to support a declaration of the relevant areas on the Bellarine Peninsula as 'distinctive areas and landscapes'. The declaration of an area as a 'distinctive area and landscape' ('DAL') triggers the requirement for the Minister to prepare a Statement of Planning Policy ('SPP') for the DAL. The SPP must include a declared area framework plan for decision-making in relation to the future use and development of land in the declared area. The SPP may, in the framework plan, include the designation of settlement boundaries as 'protected settlement boundaries' ('PSBs').
5 The draft Bellarine Peninsula SPP ('Draft SPP'), and the final form of the Bellarine Peninsula SPP ('Bellarine SPP'), included PSBs which constrain the expansion of peri-urban growth around townships in the area.
6 In August 2023, the Bellarine SPP was approved by the Governor in Council. The Bellarine SPP was prepared pursuant to Part 3AAB of the Planning and Environment Act 1987 (Vic) (the 'P&E Act') which establishes a framework for recognising and protecting DALs in Victoria. The approval of the Bellarine SPP is the last step in the strategic planning process for the future use and development of land on the Bellarine Peninsula.
7 In this proceeding, the Plaintiffs challenge the validity of the Bellarine SPP on the basis that the following two decisions are affected by jurisdictional error:
(a) the decision or conduct of the Defendant, the Minister for Planning ('Minister'), on or about 7 October 2022, to prepare, or finalise the preparation of, the Bellarine SPP, the Bellarine Peninsula being then a declared area under s 46AT of the P&E Act ('Finalisation Decision'); and
(b) the decision of the Lieutenant-Governor on 8 August 2023 to approve the Bellarine SPP under s 46AY(1) of the P&E Act ('Approval Decision') in accordance with the earlier recommendation of the Minister on 21 July 2023 ('Recommendation').
8 By way of relief, the Plaintiffs asked the Court to quash these two decisions and issue a declaration to the effect that these decisions are invalid and that, consequently, the Bellarine SPP has not taken effect under s 46AZ of the P&E Act.
9 In respect of standing, the Plaintiffs submitted that they each clearly have a sufficient interest in the subject matter of the proceeding, including that:
(a) they each own land on the Bellarine Peninsula that is close to, but outside of, the PSBs; and
(b) the Bellarine SPP, and the provisions of the P&E Act that give effect to it, purports to prohibit conventional residential subdivision and development beyond the PSBs, and thereby places significant constraints on the way in which the Plaintiffs are entitled to use and develop their land.
10 In its submissions to the Court, the Minister accepted that the Plaintiffs have standing to bring this proceeding.
11 The Plaintiffs' claim relied on six grounds of review, which are detailed below at [87]. In summary and primarily, the Plaintiffs contended that the Minister's Finalisation Decision is affected by unreasonableness because she did not genuinely have regard to either the feedback from the consultation process required under s 46AW of the P&E Act that included the opposition to specifying any PSB in the Bellarine SPP, or the recommendation from the Distinctive Areas and Landscapes Standing Advisory Committee (the 'Advisory Committee' or 'Committee'), to which the Bellarine SPP had been referred, in assessing the feedback that the evidence did not support the PSBs. It was argued that there was nothing in the ministerial brief before the Minister (referred to as the 'Finalisation Brief')[3] or its attachments explaining why the Advisory Committee's recommendation was wrong on its merits or justifying the conclusion that there was any need to specify PSBs in the SPP.[4]
12 Consequently, it was argued that it was unreasonable, if not irrational, for the Minister to find that there was a need to stop incremental creep by specifying PSBs in the Bellarine SPP.
13 To the extent that this was not a finding of fact for which evidence was required (as it was a political judgment not susceptible to law requiring evidence in support), the Plaintiffs argued that the Minister's political judgment was based on an assessment of what the community wanted prior to the consultation, irrespective of the feedback from the consultation or recommendation from the Advisory Committee.
14 The Plaintiffs also argued that the Minister's Finalisation Decision was affected by apprehended bias in the nature of pre-judgment. The Plaintiffs contended that the apprehended bias is exemplified by the Minister's departure from the true course of decision-making in discharging her obligations to consult with the local community when preparing the Bellarine SPP, as well as her failure to neutrally evaluate the recommendation of the Advisory Committee in its report dated 8 July 2022 ('Advisory Committee Report'), before making the Finalisation Decision.
15 The further grounds included alleging that the Approval Decision was also affected by the same or similar errors as the Finalisation Decision.
16 The purpose of the P&E 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'.[5] This purpose is supported by s 4(1), which sets out the objectives of planning in Victoria, and s 4(2), which sets out the objectives of the planning framework established by the P&E Act.
17 The Minister for Planning is the entity responsible for the preparation and endorsement of State planning policies and the Victorian Planning Provisions which regulate the use and development of land in Victoria.
Declaration of area as 'distinctive area and landscape'
18 Part 3AAB of the P&E Act provides for areas of Victoria to be declared as a DAL in respect of which an SPP must be prepared.
19 Part 3AAB was inserted into the P&E Act by the Planning and Environment Amendment (Distinctive Areas and Landscapes) Act 2018 (Vic), which took effect from 30 May 2018. In his second reading speech for the Planning and Environment Amendment (Distinctive Areas and Landscapes) Bill 2017, the then-Minister for Planning said that the Bill was a landmark in the management of the peri-urban areas around metropolitan Melbourne and Victoria's regional cities.[6] The Minister said further that the amendments would provide for the protection of State significant valued assets located in these regions, and would ensure greater certainty about the long-term sustainability of areas that contain distinctive values.[7] The Bill was said to strengthen existing planning controls and ensure that the significance of distinctive areas is elevated in State planning policy.[8]
20 While the Bill was specifically directed to protecting the environmental values and character of the Macedon Ranges region, it was said to pave the way for other DALs across Victoria to have access to 'the highest level of planning protection.'[9] The Minister explained that the amendments would introduce a mechanism similar to the urban growth boundary, which provided a strategic limit to Melbourne's outward expansion.[10] The equivalent mechanism provided in the Bill allowed for protected settlement boundaries around townships in order to ensure that peri-urban growth does not compromise DALs.[11]
The objects of this Part are -
(a) to recognise the importance of distinctive areas and landscapes to the people of Victoria and to protect and conserve the unique features and special characteristics of those areas and landscapes; and
(b) to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas; and
(c) to enable the integration of policy development, implementation and decision-making for declared areas under Statements of Planning Policy; and
(d) to recognise the connection and stewardship of traditional owners in relation to land in declared areas.
22 In order for an area to be declared a DAL under Part 3AAB, the Minister must be satisfied that it has a majority of the attributes specified in s 46AP(1),[12] and that the area is under threat of significant or irreversible land use change that would affect its environmental, social or economic value.[13] That threat may arise from land use conflicts, multiple land use changes over time, or any other land use threat prescribed for the purposes of s 46AP.
23 Under s 46AO of the P&E Act, the declaration of an area as a DAL is made by the Governor in Council on the recommendation of the responsible Minister. Section 46AO provides:
(1) The Governor in Council, on the recommendation of the Minister, may declare an area of Victoria to be a distinctive area and landscape by order published in the Government Gazette.
(2) An order under subsection (1) -
(a) must include a description of the area declared, which may be by reference to an incorporated plan; and
(b) must specify the attributes under section 46AP(1) that qualify the area as a distinctive area and landscape; and
(c) must identify the relevant threat of significant or irreversible land use change to the area, as described in section 46AP(2); and
(d) may include a preamble setting out any of the following -
(i) the significance of the area to the people of Victoria;
(ii) statements recognising the significance of the area to traditional owners, including statements in traditional languages together with their English translations.
(3) Before making a recommendation under subsection (1), the Minister -
(a) must be satisfied that the area meets the requirements set out in section 46AP(1) and (2); and
(b) must consult the Premier and the Treasurer.
Requirement for Minister to prepare SPP for a declared area
24 If an area is declared to be a DAL under s 46AO of the P&E Act, the Minister for Planning is required to prepare an SPP for the declared area.[14] An SPP is intended to create a framework for the future use and development of land in the declared area to ensure the protection and conservation of its distinctive attributes.[15]
25 In accordance with section 46AV(1), the SPP must:
(a) set a vision for a period of at least 50 years that identifies the values, priorities and preferences of the Victorian community in relation to the distinctive attributes of the declared area, including preferences for future land use, protection and development; and
(b) set out the long-term needs for the integration of decision-making and planning for the declared area; and
(c) state the parts of the Statement that are binding on responsible public entities and the parts that are in the nature of recommendations to which responsible public entities are only required to have regard; and
(d) include a declared area framework plan [for decision-making in relation to the future use] in accordance with subsection (2); and
(e) set out Aboriginal tangible and intangible cultural values and other cultural and heritage values, in relation to the declared area.
26 Subsection (2) provides that the declared area framework plan must provide a framework for decision-making in relation to the future use and development of the land in the declared area, which:
(a) integrates environmental, social, cultural and economic factors for the benefit of the community and encourages sustainable development and identifies areas for protection and conservation of the distinctive attributes of the declared area; and
(b) may specify settlement boundaries in the declared area or designate specific settlement boundaries in the declared area as protected settlement boundaries.
27 A 'protected settlement boundary' is defined in s 3 of the P&E Act as:
protected settlement boundary means a settlement boundary in a declared area that is protected under a Statement of Planning Policy ...
28 Consultation in accordance with s 46AW is required in the preparation of the SPP. Section 46AW provides:
The Minister must consult the following when preparing a Statement of Planning Policy for a declared area -
(a) each responsible public entity for the area
(b) the local community;
(c) any other person or entity the Minister considers may be affected by the Statement of Planning Policy.
29 Under s 46AX(1), the Minister for Planning must give a copy of the draft SPP to each responsible public entity specified in the SPP, for endorsement by the entity and by the Minister responsible for that entity. Then, per s 46AX(2), the Minister responsible for a responsible public entity may give a written direction to the entity in relation to the endorsement of the draft SPP. The endorsement requirement may be waived by declaration of the Minister, under s 46AXA, in respect of a responsible public entity that is a committee of management or trustee of Crown Land under the Crown Land (Reserves) Act 1978 (Vic).
30 Under s 46AY(1), the Governor in Council may approve an SPP that has been endorsed in accordance with s 46AX.
(1) The Governor in Council may approve a Statement of Planning Policy that has been endorsed in accordance with section 46AX.
(2) The Minister must publish a notice of an approval under subsection (1) in the Government Gazette -
(a) if the Minister intends to make a copy of the Statement available in person in accordance with the requirements set out in section 197B, specifying a place at which any person may inspect a copy of the Statement; or
(b) if the Minister intends to make a copy of the Statement available electronically and on request in accordance with the requirements set out in sections 197C and 197D, specifying -
(i) the address of the Department's Internet site at which a copy of the Statement will be published; and
(ii) the Department's contact details for making a request to inspect a copy of the Statement.
33 Nevertheless, it is accepted that the Governor in Council, when exercising the power to approve an SPP under s 46AY(1), acts on the advice of the Executive in accordance with constitutional and political conventions.[19] Such advice can be provided to the Executive Council by a responsible Minister.
34 If an SPP is not endorsed in accordance with s 46AX and approved in accordance with s 46AY within one year after the declaration of a DAL takes effect, then the declaration lapses unless an extension to the period (not exceeding two years after the declaration takes effect) is approved by the Governor in Council.[20]
35 Under s 46AZ(1), an SPP takes effect on the day the notice of approval is published in the Government Gazette pursuant to s 46AY(2) or on any later day specified in the notice.
36 On its commencement, an SPP is taken to form part of the State standard provisions of the Victoria Planning Provisions.[21] Further, under s 46AZB, the Minister must relevantly prepare an amendment to a declared area planning scheme to give effect to an SPP that has been approved under s 46AY of the P&E Act.
37 By virtue of s 46AZK, a responsible public entity must not act inconsistently with any provision of an SPP that is expressed to be binding on the public entity when performing a function or duty, or exercising a power in relation to the declared area. A responsible public entity must not prepare a planning scheme amendment if it is inconsistent with an SPP for a declared area that is expressed to be binding on it.[22] The Minister must not approve a planning scheme amendment if it is inconsistent with the SPP for a declared area.[23]
38 Unlike with other planning scheme amendments, where a planning scheme amendment includes a PSB, Parliament cannot revoke it under s 38 of the P&E Act.[24] This provision allows either House of Parliament to revoke an amendment wholly or in part by resolution passed within 10 days of the notice of the approval of an amendment being laid before that House. A PSB can only be amended if the amendment is ratified by each House within 10 sitting days after it has been laid before that House by the Minister.[25] This is a more difficult requirement to satisfy than the process in s 38 of the P&E Act.
39 The following chronology provides the context within which the Plaintiffs say the Minister's decision is affected by legal error, by way of unreasonableness or bias.[26]
40 The Plaintiffs rely significantly on what they have coined as the 'election pre‑commitment' or 'promise', contained in the Premier's press release which is set out below. In these reasons, however, I shall refer to this as the 'pre‑election press release'.
41 Prior to the Victorian State election held on Saturday 24 November 2018, the following press release was issued by Premier Daniel Andrews on 27 September 2018 titled 'Stopping Developers Ruining Bellarine and Surf Coast':
A re-elected Andrews Labor Government will permanently protect the Surf Coast and Bellarine Peninsula from over development, with planning protection enshrined in law.
Former Planning Minister Matthew Guy and the Liberals gave developers in the region open slather, expanding Torquay and Point Lonsdale, and forcing small towns on the Bellarine Peninsula to absorb Geelong's massive growth with multi-storey developments and sprawling housing estates.
Only Labor will permanently protect the lifestyle locals on the Surf Coast and Bellarine Peninsula enjoy from overnight decisions behind closed doors that will change their community forever.
A re-elected Labor Government will declare both the Surf Coast and Bellarine Peninsula a Distinctive Area and Landscape under the Planning and Environment Act 1987.
The declaration triggers a requirement for a Statement of Planning Policy, which will set permanent height controls and town boundaries to protect the environment, landscape and local lifestyle.
Any attempt to change these town boundaries must be agreed to by the Parliament, protecting local communities from the kind of inappropriate sprawl and secret deals with developers that flourished under the Liberals.
As part of this process, a re-elected Labor Government will strengthen Torquay's boundary, alongside towns across the Bellarine Peninsula to permanently end the push by developers to expand these towns and ruin the relaxed beach lifestyle locals enjoy.
The Statement of Planning Policy will be developed within the first year of a re-elected Labor Government in consultation with local councils and residents who know their area best.
Parks, wetlands and waterways across the Surf Coast and Bellarine Peninsula will also get an immediate boost. The Andrews Labor Government will use $8 million to upgrade significant parks and wetlands in the distinctive areas including Lake Connewarre, Moolap and the coastal reserves.[27]
42 On 24 November 2018, the Victorian State election was conducted and the Andrews government was re-elected.
43 The Department of Environment, Land, Water and Planning ('DELWP') commenced preparation of background work to support a declaration of the DAL for the Bellarine Peninsula. DELWP established an interdepartmental project control board ('PCB') to oversee the Bellarine Peninsula DAL project which included DELWP, Department of Premier and Cabinet, Department of Jobs, Precincts and Regions, Department of Transport, the Victorian Planning authority and the relevant councils. The PCB was supportive of the declaration area boundary.
44 Between 14 May and 15 July 2019, 'Phase 1' of a three-phase public consultation process was conducted. Phase 1 sought community views on what was 'most valued about the Bellarine Peninsula, and the community's vision for the future of the area'.[28] The Finalisation Brief described the purpose of Phase 1 as follows:[29]
DELWP sought to understand the environment, landscape and potential lifestyle values the community wants to protect and enhance. This informed the declaration of Bellarine Peninsula under the Act.
45 The key values raised by the community during the consultation period were: the vegetation including wetlands; remnant bushland and indigenous vegetation; the coastal environment; the history of the area (both indigenous and post‑contact); scenic views; important local industries (such as tourism, agriculture and aquaculture); and the character of townships and settlements. Key threats to these values are identified as overdevelopment and loss of agricultural land, the height of some new developments, and the lack of infrastructure to support developments.
46 Approximately 2,900 people were reached during Phase 1 of the community engagement, either online or face-to-face.
47 A report titled 'Distinctive Area and Landscape Bellarine Peninsula Community Engagement Findings' was prepared by the Capire Consulting Group detailing the engagement process and key findings, and this was provided to the Minister. The Minister was advised that the study area for the Bellarine Peninsula was generally consistent with the existing localised planning statement in its immediate environs. It was noted that the area has been experiencing significant development pressure leading to threats to the valued landscapes and natural areas therein.[30]
48 Representatives of DELWP first met with members of the Wadawurrung peoples in March 2019, following the Government's announcements of the Surf Coast and Bellarine Peninsula DAL project.[31]
49 In July 2019, DELWP entered into a formal agreement with the Wadawurrung for the provision of an Aboriginal Cultural Heritage Values Assessment for both the Surf Coast and Bellarine Peninsula area.
50 Between August 2019 and April 2020, the Wadawurrung prepared their cultural heritage value assessment (to inform the SPP) and their preliminary statement of significance (for the purposes of the pending Order in Council) and presented these to DELWP.
51 Based on the DELWP assessment of the Bellarine Peninsula against the criteria specified in s 46AP of the P&E Act, the Phase 1 public engagement findings and the consultation with the Wadawurrung, the recommendation was made to the Minister that the Bellarine Peninsula be declared a DAL.[32] The Minister approved the recommendation.
52 On 22 October 2019, the Governor in Council, under s 46AO(1) of the P&E Act, on the recommendation of the Minister, made a declaration of the Bellarine Peninsula as a DAL. The declaration was published in the Victoria Government Gazette on 29 October 2019.[33]
53 The Order in Council provided (in part):[34]
In accordance with section 406A(2)(d)(i) of the Act, the following statement sets out the significance of the area to the people of Victoria:
(a) The Bellarine Peninsula has landscapes of outstanding natural beauty. It contains environmental, economic and cultural heritage values of state and national significance, particularly along the coastline between Ocean Grove and Point Lonsdale.
(b) Its diverse natural environment and impressive landforms, combined with visible layers of settlement history, highlighted special significance to the people of Victoria. It holds an important role in our social, cultural and economic development.
(c) The Bellarine Peninsula's wetlands are protected under the internationally recognised Ramsar Convention. These include Lake Connewarre, Lagoon, Bay, Lonsdale Lakes, Reedy Lake and the Lower Barwon River Estuary. These reserves host many unique species.
(d) The region has extensive heritage and cultural value, ranging from renowned surfing locations, remission shipwrecks along the coastline and areas of indigenous heritage significance.
(e ) Queenscliff's natural landscape, historic town attractions and ferry services are significant attractions in the area has a growing food trail economy.
54 The statement of significance of the Wadawurrung Country to the traditional owners follows. The Order is expressed to commence on 30 October 2021.
55 A description of the area in accordance with s 46A(2)(j) as a DAL is described in the plan numbered LEGL./21-742 lodged in the Central Land Office.
56 At paragraph 4 of the Order, the 'Attributes and distinctive features of the declared area' are described. Table 1 sets out under the following headings the attributes qualifying the declared area of the DAL:
Item 1 Outstanding Environmental Significance
Item 2 Significant geographical features, including natural landforms
Item 3 Heritage and cultural significance
Item 4 Natural resources or productive land of significance
Item 5 Strategic infrastructure or built form significance
57 At paragraph 5 of the Order, in accordance with s 46AO(2)(c), 'Threats of significant land use change of the declared area' are set out as follows:
(a) Threats to areas of significant biodiversity, including Swan Bay and surrounds, Lake Connewarre and wetlands, Ocean Grove Nature Reserve and Lonsdale Lakes Wildlife Reserve from weeds and pests, climate change, natural hazards such as bushfire, and urban development.
(b) Threats to natural landscapes and landforms, including visual impact on view lines and topography of the rural landscapes through the Bellarine Peninsula, from intensity of land use and urban development.
(c) Threats to preservation of heritage and cultural attributes from the cumulative impact of development on land use practice and increased tourism activity and recreation.
(d) Threats to natural resources, water catchments and productive land from land use conflicts (including intensity of uses) between conservation, catchment management, agricultural use, residential use and recreation activities; cumulative impacts of development; and natural hazards, including bushfire and flooding.
(e) Threats to future effectiveness of strategic infrastructure from climate change impacts, expanded tourism activity, and the loss of road reservations due to development.[35]
58 Once the Bellarine Peninsula DAL was approved and declared, the Minister had an obligation to prepare an SPP in accordance with the provisions of Part 3AAB of the P&E Act, including s 46AV.
59 Between 17 April and 14 June 2020, 'Phase 2' of the public engagement process was conducted. DELWP described this process as follows:[36]
The second phase of the public engagement process sought community views on a draft 50‑year vision for the Bellarine Peninsula and strategic directions across six policy domains: Landscapes, Biodiversity and Environmental Values, Heritage, Economy and Infrastructure, Environmental Risks and Resilience, and Settlements.
60 The vision statement exhibited was in accordance with s 46AV(1)(a). DELWP reported that, on average, 73% of Phase 2 participants 'rated the vision statement positively in relation to each policy domain'.[37]
61 On 28 June 2020, the Minister for Planning established the Advisory Committee under s 151 of the P&E Act, with Terms of Reference to provide advice on Statements of Planning Policy for the declared areas of Bass Coast, Bellarine Peninsula and Surf Coast.[38] The Terms of Reference were signed by the Minister and stated as follows:
Distinctive Areas and Landscapes Standing Advisory Committee
A Standing Advisory Committee appointed pursuant to section 151 of the Planning and Environment Act 1987 (the Act) to provide advice on Statements of Planning Policy (SPP) for the declared areas of Bass Coast, Bellarine Peninsula and Surf Coast pursuant to Division 3 of Part 3AAB - Distinctive Areas and Landscapes of the (the Act).
Name
The Standing Advisory Committee is to be known as the 'Distinctive Areas and Landscapes Standing Advisory Committee'.
The Standing Advisory Committee is to have members with the following skills:
a) Strategic and statutory planning
b) Planning law
c) Land development and property economics
d) Environmental and landscape planning
e) Aboriginal cultural heritage
f) Post-contact heritage
g) Infrastructure and transport planning
The Standing Advisory Committee will include an appointed Chair and Deputy Chairs.
Purpose
The purpose of the Standing Advisory Committee is to advise the Minister for Planning on any matters listed below as they relate to the preparation of SPPs for the Bass Coast, Bellarine Peninsula and Surf Coast declared areas:
a) the rigor of any policy proposed in a draft SPP, referred by the Minister for Planning, in meeting the objects of Section 46AN of the Act:
to recognise the importance of distinctive areas and landscapes to the people of Victoria and to protect and conserve the unique features and special characteristics of those areas and landscapes; and
to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas; and
to enable the integration of policy development, implementation and decision‑making for declared areas under Statements of Planning Policy;
to recognise the connection and stewardship of Traditional Owners in relation to land in declared areas.
b) any other planning policy and implementation related matter referred by the Minister for Planning.
Background
Distinctive Areas and Landscapes Program
In May 2018, the Victorian Government amended the Act to recognise and safeguard the state's distinctive areas and landscapes and to achieve better coordinated and integrated policy development, implementation and decision‑making for ensuring greater protection and conservation of them.
Section 46AP of the Act enables the government to declare an area a 'distinctive area and landscape' subject to the Minister being satisfied that an area has a majority of the following attributes and that the area is under threat of significant or irreversible land use change that would affect the environmental, social or economic value of the area:
a) outstanding environmental significance;
b) significant geographical features, including natural landforms;
c) heritage and cultural significance;
d) natural resources or productive land of significance;
e) strategic infrastructure or built form of significance;
f) an attribute prescribed for the purposes of this section.
Once declared, an SPP must be prepared for the area in consultation with each responsible public entity (RPE) for the area, the local community any other person or entity that the Minister considers may be affected by the SPP such as Traditional Owners.
An SPP will include a 50-year vision, strategic framework plan and policies to guide land use, development and management decisions to better protect the unique features of the declared area for current and future generations. It also provides the opportunity to designate long term settlement boundaries as protected settlement boundaries.
A protected settlement boundary is a defined limit to urban expansion, like Melbourne's urban growth boundary. Any change to a protected settlement boundary identified in an SPP must be ratified by both houses of parliament.
RPEs are different agencies and bodies responsible for managing public land in the declared area, including councils. They must have regard to the SPP when developing their own policies, taking action or making decisions in relation to the declared area. The Minister for Planning must seek their endorsement of the draft SPP before the document is finalised for determination by the Governor in Council.
Four areas have been declared a distinctive area and landscape. The Macedon Ranges region was the first area declared under the legislation and has acted as a pilot project. Surf Coast was declared in September 2019, and Bass Coast and Bellarine Peninsula were declared in October 2019.
The government's distinctive areas and landscapes program delivers the government's commitment to protect the Surf Coast and Bellarine Peninsula from overdevelopment and implements Policy 7.1.2 of Plan Melbourne 2017‑2051 and Victoria's Regional Growth Plans to strengthen the protection of state significant attributes found in the peri‑urban areas of Melbourne and regional cities.
Method
General
The Minister for Planning, or delegate, may refer relevant matters to the Standing Advisory Committee for independent advice.
Each referral will be accompanied by a letter of referral to the Committee Chair, outlining the matters referred. The letter of referral will be a public document.
The Standing Advisory Committee may inform itself in any way it sees fit, and must consider all relevant matters, including and not limited to:
a) relevant provisions of the Act, the Victoria Planning Provisions, Plan Melbourne 2017 - 2050: Metropolitan Planning Strategy and the relevant Regional Growth Plans
b) the relevant Planning Schemes, including any adopted plans, strategies or planning scheme amendments
c) the draft SPP for each of the declared areas of Bass Coast, Bellarine Peninsula and Surf Coast
d) any background documents released with the draft SPP
e) the views of Traditional Owner groups
f) the views of the relevant Councils
g) the views of RPEs
h) the views of the Department of Environment, Land, Water and Planning (DELWP) and other relevant agencies
any submissions and evidence received.
The Standing Advisory Committee may apply to the Minister for Planning to vary these Terms of Reference in any way it sees fit prior to submission of its report to the Minister for Planning.
The Standing Advisory Committee may seek legal, technical or expert advice on any matter or referral that it sees fit.
Notice
DELWP must liaise with the Standing Advisory Committee to agree on the following as relevant:
a) the public exhibition dates
b) direction hearings dates
c) public hearing dates.
The agreed dates are to be included on all notices.
DELWP will be responsible for giving notice and inviting written submissions within a 40 business-day notice period where relevant.
The Standing Advisory Committee is not expected to carry out any public notification or referral; but may do so if it considers it to be appropriate.
All submissions are to be collected by the Office of Planning Panels Victoria (PPV) in accordance with the Guide to Privacy at PPV. Electronic copies of submissions will be provided to DELWP and each relevant council.
Petitions and pro-form letters will be treated as a single submission and only the first name to appear on the first page of the submission will receive correspondence on Standing Advisory Committee matters.
The Standing Advisory Committee must consider all relevant submissions.
Hearing:
At the discretion of the Standing Advisory Committee, the matter may be assessed 'on the papers', or through targeted consultation or agency forums without the need for a public hearing.
For relevant matters, the Standing Advisory Committee may carry out a directions hearing and public hearing following the giving of notice of a draft SPP or other related planning policy matters.
The Standing Advisory Committee may conduct hearings, workshops, forums or other meetings using video conferencing or similar technology as necessary.
The Standing Advisory Committee may meet and invite others to meet with them when there is a quorum of at least two Standing Advisory Committee Members including the Chair or Deputy Chairs.
The Standing Advisory Committee will regulate its own proceedings. It may limit the time of parties appearing before it and may prohibit or regulate cross-examination.
Outcomes
The Standing Advisory Committee must produce a written report or reports for the Minister for Planning.
The Standing Advisory Committee's report must address the following:
a) An assessment of relevant state and local policy for each referred matter.
b) Recommendations to the Minister for Planning on the referred matter.
c) An assessment of submissions to the Standing Advisory Committee.
d) Any other relevant matters raised in the course of any Standing Advisory Committee hearings.
e) A list of persons who made submissions considered by the Standing Advisory Committee.
f) A list of persons consulted or heard.
The report or reports of the Standing Advisory Committee may be submitted in stages depending of the timing of the matters referred to it.
Following the completion of the report the Standing Advisory Committee may deliver an oral briefing to DELWP staff, or the Minister for Planning.
Submissions are public documents
The Standing Advisory Committee must retain a library of any written submissions or other supporting documentation provided to it directly to it until a decision has been made on its report or five years has passed from the time of its appointment.
Any written submissions or other supporting documentation provided to the Standing Advisory Committee must be available for public inspection until the submission of its report, unless the Standing Advisory Committee specifically directs that the material is to remain 'in camera'.
All submissions, evidence and other material received will be treated as public documents and will be placed online as part of the exhibition and public notification process.
Timing
The Standing Advisory Committee is required to submit its report in writing as soon as practicable and no later than 40 business days from the completion hearings.
Fee
- The fee for the Standing Advisory Committee will be set at the current rate for a Panel appointed under Part 8 of the Act.
- The costs of the Standing Advisory Committee will be met by DELWP.
62 In May to June 2021, the Draft SPP was prepared for impending public exhibition. The Draft SPP included an extensive attachment prepared by DELWP titled 'Draft Bellarine Peninsula Statement of Planning Policy Settlement Background Paper' ('Background Paper').
63 The Background Paper set out the methodology used by the Bellarine Peninsula DAL project to determine settlement boundary locations, and a proposal about built form outcome across the Bellarine Peninsula settlements. It provided the evidence base for the settlement policy domain of the Draft SPP and was also intended to inform written submissions which were invited from the community, responsible public entities, industry representatives and other interested parties about the Draft SPP.[39]
64 Between 29 June and 31 August 2021, the Draft SPP was exhibited for public consultation. This process included the following activities:[40]
66 On 16 September 2021 the Governor in Council, by order published in the Government Gazette, re-declared the Bellarine Peninsula to be a DAL under s 46AO(1) of the P&E Act.[43]
67 There was no change to the valued attributes or the threats identified in the original DAL declaration.
68 On 7 December 2021, the Minister referred the following matters in respect of the Draft SPP to the Advisory Committee in accordance with paragraphs 12 and 13 of the Committee's Terms of Reference. In her letter of referral, the Minister specified the issues as follows:[44]
69 On 25 April 2022, the Minister amended the terms of the Bellarine Referral in respect of timing, reducing the period for the Advisory Committee to write its report from 40 business days to 19 business days. In the Minister's cover letter to the Committee, he noted that 'given the limited referral scope for the draft Bellarine Peninsula SPP, I require a report (or all staged reports) of the Committee to be submitted to me by 8 July 2022 at the latest'.[46]
70 The Advisory Committee commenced the hearing on 26 April 2022. The Minister submitted to the Committee that the terms of the Bellarine Referral precluded it from considering whether any PSBs are needed, and rather that the task of the Committee required it 'to proceed on the basis that the PSBs are required and ... what falls to be considered (by way of amendment) is whether their alignments should change in some way'.[47]
71 On 27 June 2022, Ms Blandthorn MP was sworn in as Minister for Planning, replacing Mr Wynne MP.
72 On 8 July 2022, the Advisory Committee issued the Advisory Committee Report recommending that settlement boundaries proposed in the Draft SPP not be identified as PSBs. The Committee rejected the Minister's contention as to the scope of the Bellarine Referral, and considered that it was entitled to consider and make recommendations on whether the PSBs were appropriate, based on whether supporting and technical assessment could demonstrate the PSBs are needed to protect and conserve the distinctive attributes of the Bellarine Peninsula's declared area.
73 The Committee advised that the background work in relation to the SPP 'is not sufficiently robust or progressed to determine whether each PSB is needed to protect and conserve the distinctive attributes and features as outlined in section 46AV of the [P&E] Act'.[48]
74 On or about 26 August 2022, DELWP issued the Finalisation Brief to the Minister. The Finalisation Brief stated that '[a]t the 2018 election, the Victorian Government made a commitment to permanently protect the Bellarine Peninsula from overdevelopment by setting permanent settlement boundaries'.[49]
75 The Finalisation Brief also recorded that:[50]
DELWP does not support the Committee's Recommendation ... By excluding the 'protected settlement boundaries' from the SPP, it is not possible to provide permanent legislative protection of the declared area's unique values and distinctive attributes that Bellarine Peninsula communities and wider Victorians were promised by government. DELWP therefore recommends protected settlement boundaries for all townships on the Bellarine Peninsula, except Queenscliff, and for urban Geelong consistent with community expectations. A boundary for Queenscliff is not required because its environmental and geographical constraints provide a natural barrier to urban expansion.
76 The Finalisation Brief contained a total of 18 Attachments as well as a document titled 'Further Instructions'. The following attachments are of particular relevance:
(a) Attachment 1, being the final proposed SPP;[51]
(b) Attachment 2, being the Advisory Committee Report;[52]
(c) Attachment 5, being a 'Phase 3 public consultation findings summary' prepared by DELWP ('the Consultation Summary');[53]
(d) Attachment 6, being the 'DELWP response to DALSAC [i.e., the Committee] recommendation';[54] and
(e) Attachment 7, being a copy of the pre-election press release and what DELWP described as the 'Election Commitment'.[55]
77 Attachment 6 set out the Advisory Committee's single recommendation, the DELWP response (being to 'Reject [the] recommendation') and then DELWP's reasons in the 'Comment' column. Those reasons were as follows:[56]
Government made an election commitment to permanently protect the Bellarine Peninsula from over development by setting permanent town boundaries to protect the environment, landscape and local lifestyle of the Bellarine Peninsula.
Section 46AV of the Planning and Environment Act 1987 (the Act) provides for a Statement of Planning Policy (SPP) to prescribe 'protected settlement boundaries' and/or settlement boundaries on the 'declared area framework plan' that is to provide a framework for decision-making in relation to the future use and development of land in the declared area.
A protected settlement boundary - which is defined in the Act to be 'a settlement boundary in a declared area that is protected under an SPP' - provides the highest level of protection under an SPP of the significant and unique characteristics of the declared area.
To amend a protected settlement boundary, the same process to amend a settlement boundary in an SPP applies. However, any amendment to an SPP that seeks to change a protected settlement boundary must also be ratified by both Houses of Parliament which is the same requirement for changing Melbourne's Urban Growth Boundary. Therefore, a protected settlement boundary provides the highest level of protection.
The terms of the referral were for the Committee to 'advise on whether all protected settlement boundaries designated in the draft Bellarine Peninsula SPP are appropriate, having regard to the purpose of an SPP under section 46AU of the Act, and whether any amendments to those protected settlement boundaries should be made'. Legal Counsel representing the Minister for Planning in the Committee process advised in its closing submission that the Committee would be outside the terms of its referral by having regard to any other matter that is relevant to the purpose of an SPP when advising on whether to apply the protected settlement boundary instrument. The Committee has not provided advice on the location of any of the proposed settlement boundaries contained within the draft SPP.
The draft Bellarine Peninsula SPP and proposed protected settlement boundaries were informed by two previous rounds of public engagement and technical advice and studies commensurate with the preparation of a long‑term strategic plan. The technical work underpinning the draft SPP is similar in nature to that underpinning the draft Surf Coast SPP that also specified 'protected settlement boundaries' for its townships. The Committee that considered the draft Surf Coast SPP recommended that protected settlement boundaries be applied to all townships within the Surf Coast declared area.
The SPP must be reviewed at least every 10 years. It can be reviewed earlier than this, however an earlier review will only be considered if further strategic planning work has been completed. A review may reassess the location of a settlement boundary if there are compelling reasons to do so. Any proposed change to a settlement boundary in an SPP must be strongly supported by evidence and requires a rigorous planning scheme amendment process involving community consultation.
To provide greater certainty to communities and investors about the areas to be permanently conserved and the preferred locations for future development, DELWP recommends that the Bellarine Peninsula SPP includes protected settlement boundaries for all townships on Bellarine Peninsula, except Queenscliff, and for urban Geelong. A boundary for Queenscliff is not required because its environmental and geographical constraints provide a natural barrier to urban expansion.
79 The finalised SPP included the proposed settlement boundaries across the Bellarine Peninsula, including their designation as PSBs contrary to the recommendation of the Committee.
80 On 6 October 2022, the Premier issued a second press release titled 'Protecting the iconic Bellarine Peninsula' ('the Premier's second press release').[59] The Premier's press release stated:
The Andrews Labor Government is delivering on its promise to protect Victoria's beautiful Bellarine Peninsula and its cherished environment from overdevelopment.
Premier Daniel Andrews and Member for Bellarine Lisa Neville today visited Ocean Grove Surf Life Saving Club to deliver the Labor Government's Statement of Planning Policy for the Bellarine Peninsula's 'distinctive area and landscape' (DAL) - setting out a 50-year vision for the region to guide development controls and boundaries.
The planning policy will create jobs and a strong local and regional economy, giving the community greater certainty and informing the building sector about future opportunities for housing, tourism and infrastructure investment.
The Bellarine Peninsula is one of Victoria's most prized tourism and recreation destinations with its stunning beaches, rural landscapes and historic towns including Queenscliff and Portarlington.
It also boasts parks, wetlands of biodiversity significance and productive agricultural land.
The draft policy locks in protected settlement boundaries for all townships, to ensure the Bellarine's agricultural areas, landscapes, environmental features, small villages and towns are protected from inappropriate development and direct future growth to strategic locations.
The Peninsula was declared a DAL in 2019, recognising that its beautiful coastal environment, unique green spaces, local producers, and lifestyle, were under pressure from urban overdevelopment.
The 2019 declaration triggered the need for a Statement of Planning Policy for the area, to ensure the landscapes, unique environmental and cultural values of the Bellarine are protected and enhanced for many decades to come.
The final draft policy was developed in collaboration with the Wadawurrung Traditional Owners Aboriginal Corporation, the Borough of Queenscliff, the City of Greater Geelong following extensive consultation with community and industry. It was also referred to an independent advisory committee in January 2022.[60]
81 On 7 October 2022, the Minister released a statement titled 'Permanently protecting the Bellarine Peninsula from overdevelopment' ('the Minister's press release'):[61]
This Government promised to permanently protect the Bellarine Peninsula from over development, and that is what we are doing.
I accepted the Department of Environment, Land, Water and Planning's advice and recommendation to not accept the Distinctive Areas and Landscapes Standing Advisory Committee recommendation to not identify protected settlement boundaries in the final draft SPP.
Backed by community feedback, I am implementing protected settlement boundaries that are consistent with the strategic planning policies of the Borough of Queenscliff and the City of Greater Geelong.
The Bellarine Peninsula was declared a 'distinctive area and landscape' in 2019, recognising that its beautiful coastal environment, unique green spaces, local producers and lifestyle were under pressure from urban development.
The declaration triggered the need for a Statement of Planning Policy, which includes protected settlement boundaries.
Protected settlement boundaries are locked in to ensure cultural heritage, agricultural areas, prized landscapes, environmental features and the small villages and towns that the local community and visitors cherish, are protected from inappropriate development, with future growth directed to appropriate locations.
Former Minister for Planning, the Hon. Richard Wynne, sought advice from the Committee on whether all protected settlement boundaries designated in the Draft Bellarine Peninsula Statement of Planning Policy were appropriate.
The Committee did not support adopting the existing settlement boundaries as protected settlement boundaries. However, the Department of Environment, Land, Water and Planning's advice and recommendation was to not accept the Committee's recommendation.
We have heard the community and need to stop the incremental creep that has been happening over time which is impacting distinctive attributes and features that the community care about. The best way to stop that is to have protected settlement boundaries.
My decision provides greater certainty to the community and the building sector about future opportunities for housing, tourism and infrastructure investment, and will help create jobs and a strong local and regional economy.
82 Also on 7 October 2022, the Premier and the local member for Bellarine, Lisa Neville MP, announced the SPP at the Ocean Grove Surf Lifesaving Club. The Premier said '[w]e promised to protect our iconic Bellarine Peninsula - and that's exactly what we have done'.[62]
83 On 5 December 2022, Ms Sonia Kilkenny MP was sworn in as Planning Minister, replacing Ms Blandthorn MP.
84 On or about 14 July 2023, DELWP issued the Recommendation Brief to the Planning Minister recommending that she recommend the Governor in Council approve the SPP under s 46AY(1).[63] Relevantly, the Recommendation Brief contained the following attachments:
85 On or about 21 July 2023, the Minister made the Recommendation that the Governor in Council approve the Bellarine SPP under s 46AY(1) of the P&E Act.
86 On 8 August 2023, the Lieutenant-Governor, with the advice of the Executive Council and acting in accordance with the recommendations of the Minister, made the Approval Decision in respect of the Bellarine SPP under s 46AY(1) of the P&E Act.[69] A notice to this effect was published in the Victorian Government Gazette on 10 August 2023.
87 The Plaintiffs' further amended originating motion for judicial review filed 29 April 2024 sets out six grounds of review, summarised as follows:
G1: the Finalisation Decision is affected by jurisdictional error on the basis of irrationality or unreasonableness;
G2: the Finalisation Decision is affected by jurisdictional error on the basis of misdirection at law;
G3: the Finalisation Decision is affected by jurisdictional error on the basis of apprehended bias;
G4: the Finalisation Decision is affected by jurisdictional error on the basis of inflexible application of policy;
G5: the Approval Decision is invalid as a consequence of the invalidity of the Finalisation Decision; and
G6: the Approval Decision is affected by jurisdictional error on the basis of irrationality or unreasonableness, misdirection at law, apprehended bias and inflexible application of policy (similarly to Grounds 1 to 4).
88 At trial, the Plaintiffs only pressed Ground 1 and Ground 3. Grounds 2 and 4 were abandoned. All parties agreed that Ground 5 would succeed should the Plaintiffs succeed on the primary claims in Ground 1 (unreasonableness) or Ground 3 (apprehended bias). Ground 6 was not pressed and the Plaintiffs made no submissions on it. I deal with Ground 1, Ground 3 and Ground 5 below.
89 At the outset, it is important, in the consideration of the grounds relied upon by the Plaintiffs, that the role of the Minister in exercising his or her powers and duties under the P&E Act is put into context. The purpose of the P&E 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. The P&E Act provides for the strategic planning and the statutory mechanisms through which this purpose is facilitated, in accordance with the objectives of planning which are set out in s 4 of the P&E Act. Whilst all land use and development in Victoria is governed by local planning schemes which are created under the P&E Act, there are some areas of Victoria which are subject to specific policies and controls under the P&E Act; these include the Metropolitan Green Wedge,[70] the Yarra River,[71] and areas subject to the DAL provisions.[72] Other mechanisms for the protection of environmental, social or other strategic values are implemented through the use of zoning controls and overlays, and by the Particular Provisions in the Victorian Planning Provisions.
90 Whilst local municipal councils are generally the entity designated as the responsible authority for the administration of each local planning scheme,[73] which will include from time to time the preparation of amendments to a planning scheme, the Minister is the planning authority for all planning schemes[74] and has the ultimate authority for approval of amendments to planning schemes (subject to s 38 which provides for revocation of a planning scheme amendment by Parliament). The Minister also has extensive powers to call in a planning permit application[75] and to call in a planning scheme amendment.[76]
91 Planning decisions are often viewed through a political lens. They involve land use decisions and development opportunities which shape our communities, not only in a physical sense but in an economic, environmental, social and community sense. In that respect, it is often not possible to immunise a decision from a claim of political motivation. It is well recognised that a government Minister is both a political actor and an administrative decision-maker. That a Minister acts in accordance with stated government policy and aspirations which have been publicly declared is a positive characteristic of a modern open democratic system. This of course does not mean that a Minister can act capriciously, underhandedly or in a vacuum or in isolation from a statutory process. The process in Part 3AAB, by its very nature, is intended to facilitate the management of land use and development in accordance with the stated purposes of the P&E Act.
92 I make this observation at the outset, as the Plaintiffs' claims of apprehended bias and of legal unreasonableness must be seen in their proper context. Both of these claims are made in the context of a stated policy objective to protect the Bellarine Peninsula from overdevelopment, utilising one of the specific mechanisms provided for in the P&E Act, being the provisions in Part 3AAB.
93 It is notable that there was no challenge by the Plaintiffs to the Minister's determination that the area satisfied the requirements set out in s 46AP as a DAL when the declaration was made in October 2019. The declaration as a DAL required the Minister to be satisfied also that the area was under threat of significant or irreversible land use change that would affect the designated values of the area. This threat may arise from land use conflicts, multiple land use changes over time, or other land use.
94 The focus of the Plaintiffs' challenge is the preparation of the SPP. The purpose of the SPP - the preparation of which is triggered by the declaration of an area as a DAL - is to create a framework for the future use and development of land in the declared area, and to ensure the protection and conservation of the distinctive attributes of the declared area.[77] The SPP is the planning policy mechanism creating the framework for the future use and development of land in the declared area, and operates to ensure the protection and conservation of the distinctive attributes of the declared area.
95 It is somewhat artificial in the circumstances of this proceeding to sensibly claim that, after the declaration of the Bellarine Peninsula as a DAL, the Minister might have a neutral view about the necessity for the imposition of a settlement boundary in any future SPP framework for the DAL area's management. It would seem to me to undermine the very declaration of the area as a DAL not to consider that a settlement boundary might be required, where one of the very threats identified was unfettered or ad hoc development expansion. Further, one of the tools available in formulating an SPP is whether there is a defined settlement boundary.
96 Section 46AV(2) sets out that a declared area framework plan must provide a framework for decision-making in relation to the future use and development of land in the DAL that integrates environmental, social, cultural and economic factors for the benefit of the community, encourages sustainable development, and identifies areas for protection and conservation of the distinctive attributes of the declared area. In addition, the framework plan may specify settlement boundaries or designate specific settlement boundaries in the declared area as PSBs.
97 In my view, the preparation of the SPP and in particular the declared area framework plan cannot be seen in isolation from the very declaration of the DAL itself, which identifies the relevant values and threats. It is difficult in these circumstances to conclude that it would be legally or logically improper to propose a PSB in principle as a mechanism to protect a DAL, such as in the circumstances here in respect of the Bellarine Peninsula.
Ground 1: Is the Finalisation Decision affected by irrationality or unreasonableness?
98 Ground 1 contends that the Minister acted unreasonably or irrationally in making the Finalisation Decision, in circumstances where:
(a) material before the Minister did not include any evidence supporting the proposition that the PSBs specified in the Bellarine SPP were necessary to protect or conserve any one or more of the distinctive attributes of the declared area; and
(b) the Background Paper started from the premise that the then‑Minister had already 'committed to setting settlement boundaries ... through the Bellarine Peninsula Distinctive Area and Landscape project' and, accordingly, did not assess whether the PSBs were needed to protect or conserve any one or more of the distinctive attributes of the declared area.
99 The Plaintiffs submitted that the Minister did not genuinely have regard to either:
(a) the feedback from the consultation under s 46AW that included opposition to specifying any PSBs in the SPP; or
(b) the recommendation from the Committee, in assessing that feedback, that the evidence did not support the PSBs.
100 The Plaintiffs submitted that the feedback and recommendation, to the extent that they were considered at all, were rejected simply because they were inconsistent with the 2018 election pre-commitment. It was argued that there was nothing in the Finalisation Brief explaining why the Committee's recommendation was wrong on its merits or justifying the conclusion that there was any 'need' to specify PSBs in the SPP.
101 Accordingly, the Plaintiffs say that it was unreasonable, if not irrational, for the Minister to find that there was a 'need' to stop 'incremental creep' by specifying PSBs in the SPP. It was submitted that the unreasonableness here is to be evinced by the process (as opposed to the outcome).[78] This point was emphasised in the Plaintiffs' written reply and at trial;[79] the Plaintiffs contended that the Minister's submissions had misdirected the issue by addressing the reasonableness of the outcome.
102 The Plaintiffs relied on the decision of the High Court in Plaintiff S183/2021 v Minister for Home Affairs ('Plaintiff S183/2021'),[80] in which Gordon J restated the concept of unreasonableness being concerned with both outcome and process, and drew a connection between that and the concept of abuse of statutory power. Her Honour stated that the question is whether 'the statutory power, properly construed, has been abused by the decision-maker'.[81]
103 The Plaintiffs contended that it would be an 'abuse' of the Minister's discretionary power to specify PSBs in an SPP if the Minister did so on the basis of a pre‑commitment that was made before the community consultation. To the extent that the Minister's decision 'was not a finding of fact for which evidence was required', the Plaintiffs say it was a political judgment 'based on an assessment of what the community wanted prior to the consultation (and irrespective of the feedback from the consultation or recommendation of the Committee)'.
104 The Plaintiffs referred to the scope, subject and purpose of the P&E Act which they say demonstrate that:
(a) in exercising her discretion under s 46AT (read with s 46AV(2)(b)), the Minister, like any administrative decision-maker, was required to have regard to 'the best and most current information available' at the time that she made her decision;[82] and
(b) it follows from the terms of s 46AW(b) that the Minister was required, in deciding what to include in the SPP, to have regard to views expressed by the 'local community' during the period 'when' the Minister (or DELWP) was 'preparing' the SPP and for the purpose of deciding what to specify in the SPP. As Richards J held in Zeally Investments Pty Ltd v Minister for Planning ('Zeally'),[83] 'the consultation should be genuine'.
105 In the manner described above, the Plaintiffs submitted that the process embarked on by the Minister does not reflect a 'genuine' process of consultation and consideration. The Plaintiffs referred to statements of DELWP that certain work had not been done to confirm the nature and extent of all of the PSBs required, which the Plaintiffs said demonstrated a clear inference that the decision to place the PSBs had already been made prior to the mandated consultation.
106 The Plaintiffs sought to distinguish this case from the Zeally decision on the basis that Minister Blandthorn may have genuinely wanted to listen to feedback about the precise location or alignment of PSBs. However, she did not genuinely consider the community feedback or Advisory Committee recommendation against specifying any PSBs at all.[84]
107 The Plaintiffs argued that there is no evidence that the Minister considered the numerous attachments to the Finalisation Brief. They sought to draw a distinction between attributing evaluative conclusions that might have been capable of being drawn from certain information before the Minister, as opposed to evidence that the Minister actually draw certain conclusions. In particular, I was referred to evaluative statements in the Minister's submissions highlighting the community's support for the PSBs and invited to conclude that there is no evidence the Minister actually formed those evaluative conclusions and made her Finalisation Decision on the basis of them.
108 It was argued that Stambe v Minister for Health ('Stambe')[85] supports the proposition that it may be inferred that the Minister read and considered the Finalisation Brief, but it could not be inferred that she read and considered all of the attachments in the absence of any direct evidence from former Minister Blandthorn, or even a Departmental officer. The dicta of Mortimer J in Stambe relied upon by the Plaintiffs included the conclusion that '[w]hile it was appropriate to infer that the Minister read the briefing note, anything beyond that was sheer speculation' as the evidence as to the reasoning process was 'scant'.[86] They say the same applies here.
109 Further, the Plaintiffs argued that a Jones v Dunkel[87] inference could be drawn from Minister Blandthorn not providing evidence in the proceeding without explanation. It was said that 'plainly, Minister Blandthorn would be expected to be called by the Minister rather than the Plaintiffs', and that her 'evidence would elucidate what she considered in making her decision, and what her reasons were'. It was argued that there is no rule that inferences can never been drawn from a failure of a Minister to give evidence, and that there have been many instances of Jones v Dunkel inferences being drawn as against Ministers.[88]
110 The Minister filed lengthy written submissions which I have sought to summarise as succinctly as possible.
111 The Minister submitted that Ground 1 was in substance an invitation for the Court to engage in an impermissible merits review under the cloak of legal unreasonableness.[89]
112 She referred me to the broad discretion conferred by s 46AV(2) of the P&E Act to specify PSBs in an SPP, and that the decision to include PSBs was within the 'range of acceptable outcomes' that could have been reached by the Minister based upon the material before her. It should be noted that it was this submission that was used by the Plaintiffs, in their written reply, as an example of the Minister's submissions misunderstanding and not addressing the Plaintiffs' challenge to the reasonableness of the reasoning process, and only addressing the reasonableness of the outcome.
113 However, it was put by the Minister that the Plaintiffs' argument proceeds on the false premise that the only reason for which the Minister made the Finalisation Decision was because the Government had made a promise or a commitment to do so. At the oral hearing, counsel for the Minister described the Plaintiffs' argument as 'a novel species of legal unreasonableness', more akin to an argument that the views of the community were ignored.[90]
114 Reference was made to the Finalisation Brief and the materials which were before the Minister at the time that she made the Finalisation Decision, which the Minister said provided an intelligible and rational basis for the Finalisation Decision. These materials included:
(a) The Consultation Summary, which the Minister said established strong community support for the inclusion of the PSBs as proposed in the Bellarine SPP. While acknowledging there was some local opposition to the inclusion of the PSBs, the Minister submitted that, on a fair reading of the Consultation Summary, the weight of community feedback received during the consultation period provided support for the inclusion of the PSBs in the Bellarine SPP. The Minister points to this document as providing the basis for the statement by the Minister that there was a 'need' to stop 'incremental creep'.
(b) The Referral Brief, being the ministerial brief which sets out the considerations the Minister took into account when determining to refer to the Bellarine SPP to the Committee for the Committee's advice. It was submitted that the Referral Brief, and the Committee process it was used for, was a genuine attempt to obtain the advice of the Committee as to the appropriateness of the PSBs designated in the Draft SPP.
(c) The Minister's Closing Submissions to the Committee, which reveals that there was a debate at the Advisory Committee hearing regarding the Committee's Terms of Reference.
(d) The Committee Report, which contains the single Committee recommendation that settlement boundaries proposed in the Draft SPP not be identified as PSBs and that there should be further work done to align the PSBs with particular distinctive attributes, based on more detailed technical assessments.
(e) Attachment 6 to the Finalisation Brief,[91] which explained why DELWP did not agree with the recommendation of the Committee. This referred to the Government's pre-election press release and other matters, including that the PSB provides the highest level of protection under an SPP of the significant and unique characteristics of the declared area, and implicitly rejected the Committee's recommendation that further work was required.
(f) The Finalisation Brief, which was said to provide numerous reasons for the inclusion of the PSBs in the Bellarine SPP.
115 I was also referred to the Minister's press release which was said to reflect that there were multiple reasons for including PSBs in the SPP.
116 The Minister emphasised that the weight to be accorded to the community feedback was a matter for her and that it was not necessary for the Minister to justify any departure from the Committee's recommendation made under s 151 of the P&E Act.
117 The Minister rejected the Plaintiffs' argument that an inference should be drawn from two statements in Attachment 6 that the decision to include PSBs had been made prior to consultation on the Draft SPP, arguing the statements had been taken out of context such that it misrepresents what was in fact stated by DELWP.
118 The Minister also rejected the Plaintiffs' argument that a Jones v Dunkel inference should be drawn from the circumstance that the former Minister, Ms Blandthorn, has not provided an affidavit in this proceeding, relying on the High Court decisions of Minister for Immigration and Multicultural Affairs v Jia Legeng ('Jia')[92] and Haneef v Minister for Immigration and Citizenship ('Haneef')[93] to support the proposition that where the relevant witness is a Minister, there will almost always be an explanation for their absence sufficient to preclude the operation of Jones v Dunkel.
119 The principles applicable to legal unreasonableness, a narrow class of decision which will be affected by jurisdictional error, are those discussed by the High Court in Minister for Immigration and Citizenship v Li ('Li')[94] and more recently in Minister for Immigration and Border Protection v SZVFW ('SZVFW').[95]
120 The plurality in Li described legal unreasonableness as a 'conclusion which may be applied to a decision which lacks an evident and intelligible justification',[96] a characterisation which was reiterated in SZVFW.[97] In SZVFW, Nettle and Gordon JJ observed that a conclusion of unreasonableness did not necessarily entail identification of a specific legal error, as the error may be made evident 'by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied on the exercise of the statutory power'.[98]
121 In Li, Hayne, Kiefel and Bell JJ recognised that 'more specific errors in decision‑making ... may also be seen as encompassed by unreasonableness', including, as recognised by Mason J in Peko‑Wallsend, where an administrative decision is manifestly unreasonable because it 'has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no importance'.[99] Their Honours observed:[100]
Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds ... such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
123 The decision of a decision-maker exercising statutory power can only be challenged on the ground of unreasonableness when no reasonable decision-maker could have reached the conclusion that they did or where there is no evident and intelligible justification for the decision. This is a narrow area of challenge.[103]
124 Legal unreasonableness can either be outcome focused, without necessarily identifying another underlying jurisdictional error, or it can focus on examination of the reasoning process by which the decision-maker arrived at the exercise of power.[104] In this respect, I should note at the outset that I disagree with the Plaintiffs' submission[105] that the Minister has misdirected the issue by focussing on the reasonableness of the outcome. Whilst the Plaintiffs' claim is targeted at the Minister's reasoning, in such a challenge the questions for the Court in analysing that reasoning may (and often do) naturally extend to examining the outcome which is formulated upon that reasoning. The extent to which that line may be blurred will turn on the circumstances of the case and the statutory function in question.[106]
125 Where a decision-maker's statutory function calls for 'a broad and subjective evaluation', the task of demonstrating the requisite lack of an evident and intelligible justification becomes a 'virtually insuperable hurdle'.[107] Legal unreasonableness requires the Court to acknowledge that there is an area of decisional freedom vested in the decision-maker in exercising a statutory discretionary power.[108] The area of decisional freedom within which reasonable minds may differ is framed by the nature and character of the decision and of the terms of the relevant statute.[109]
Was the decision lacking an 'evident and intelligible justification'?
127 As noted when the bias argument is considered below, there is considerable overlap between the matters raised by way of support for both the Plaintiffs' claims of legal unreasonableness and of bias. The areas of overlap are highlighted and dealt with accordingly in these reasons.
128 When distilled, the Plaintiffs' argument in respect of unreasonableness is based on an assertion that the Minister did not make a lawful decision in approving the SPP in October 2022, because she acted solely on the basis of the pre-election press release made before the 2018 State election, to the exclusion of other planning merits considerations. It is said that there was no evidence to support the imposition of PSBs in the SPP, that the Draft SPP had already committed to PSBs, and that there was no genuine consideration of community feedback or to the recommendation of the Committee. Further, whilst the Plaintiffs agreed that it could be inferred that the Minister read the covering briefing note, there was no evidence that the Minister had considered the attachments to the Finalisation Brief.
129 There are a number of problems with the legal unreasonableness proposition on these grounds, elaborated upon in this section. First, however, it is necessary to deal with a statutory construction point raised by the Plaintiffs at the early stages of the oral hearing.
130 The Plaintiffs' analysis of the exercise of discretion to specify a PSB was characterised as having two parts.[112] It was submitted that a declared area framework plan was required to be prepared. The framework plan is required to guide the decision‑making for the DAL - integrating environmental, social, cultural and economic factors for the benefit of the community - and encourages sustainable development by identifying the areas of protection and conservation of the distinctive attributes of the declared area.
131 It was then said that a separate and distinct discretion was required to be exercised by s 46AV(2)(b) to specify settlement boundaries in the declared area, or to designate specific settlement boundaries in the declared area as protected settlement boundaries. It was said that this was a two-step process and this was not the manner in which the Bellarine SPP was prepared.
132 I am not persuaded that this is the correct analysis of the task or the correct construction of s 46AV(2)(b). The amendment to the planning scheme which introduces the SPP into the planning scheme commences with work to be undertaken to support the declaration of a DAL and finishes with the Governor in Council approval of the SPP. There are clearly certain matters which must be considered and dealt with in the framework plan and there is, as part of the framework toolkit, the option of imposing a settlement boundary including a PSB.
133 I see no error in taking into account all of the components which must and may be in the framework plan as part of the same analytical process. I do not accept that the provision is to be read in a linear or sequential manner as the Plaintiffs suggest. Rather, in order to make an effective and integrated decision on the scope and terms of the SPP, it would be illogical and impractical in the context of the development of policy for small townships (such as were being included in the Bellarine SPP) to ignore or postpone a decision about a settlement boundary until after all other policy considerations were determined. The interpretation of s 46AV(2)(b) as requiring cascading or separate exercises of discretion is, in my view, an overly pedantic interpretation. The application of the usual statutory interpretation principles of text, context and purpose militate against the contrary interpretation urged by the Plaintiffs.
134 In my view, the assessment of all of the matters required to be considered and those which may be considered can be dealt with in the overall drafting and finalisation of the framework plan. It is the task of the framework plan to guide the future use and development of the land subject to the DAL, and it would appear to me to be unrealistic and impractical in the preparation of a sensible framework plan to require the question of a settlement boundary to be made effectively as an afterthought.
135 That s 46AV(2)(b) states that the framework plan may include a settlement boundary, including a PSB, does no more than make it explicit that a framework plan can include this concept and that this concept is a deliberate inclusion into the planning toolkit for DAL areas. This view is reinforced by the Second Reading Speech introducing the insertion of the DAL provisions, where the Minister explained that the amendments would introduce a mechanism similar to the urban growth boundary, which provided a strategic limit to Melbourne's outward expansion.[113] The equivalent mechanism provided in the Bill allowed for PSBs around townships in order to ensure that peri‑urban growth does not compromise DALs.[114]
136 Consequently, I reject the interpretation of s 46AV(2)(b) as urged by the Plaintiffs. With that context in mind, I now turn to the substantial arguments in respect of the alleged unreasonableness.
137 The Plaintiffs contended that, as a result of the Advisory Committee's report, there was no evidence to support the proposed Draft SPP and, in particular, no justification for the inclusion of PSBs.
138 I disagree that there was no evidence to support the imposition of settlement boundaries or PSBs. Properly put, in the context of considerations relevant to the Minister's decision, the question is not an evidentiary one which might apply in other contested forums. Rather, the test is whether there is an 'evident and intelligible justification'.[115] Viewed through the lens of this test, there was on the facts sufficient evidence to justify choosing one of two potential and intelligible courses (to impose or not impose PSBs) and the product of that choice simply represents the prevailing opinion of DELWP and the Minister.
139 The Minister had all of the necessary information before her when she chose to disagree with the Advisory Committee. DELWP had prepared an extensive Draft SPP supported by the Background Paper and the investigations conducted in respect of landscape, population, land supply and consistency with strategic planning for the Greater Geelong region and the Bellarine Peninsula. DELWP disagreed with the Advisory Committee that the work was insufficient to support the PSBs. This is recorded in the Finalisation Brief. Whilst it is correct to say that there was evidence and submissions which opposed PSBs, that is not the same as a proposition that there was no evidence to support them. What results is a difference of opinion as to whether the Minister's conclusion is the appropriate outcome, not that it was unsupportable. This difference of opinion is not an irrelevant factor.
140 DELWP disagreed with the Advisory Committee's assessment and advised the Minister accordingly. The strong public support for including a PSB was emphasised. This was also consistent with the commitment given by the Victorian Government before the 2018 election. The strong community support was not without evidence. All phases of the consultation, from the pre-DAL declaration through to the exhibition of the Draft SPP prepared by the Minister, garnered such support. It is not necessary for that support to be universal and the fact of opposition to the PSBs was recorded in the Finalisation Brief.
141 The rationale for the imposition and the location of the PSBs was set out in the material which supported the Draft SPP. That the Advisory Committee disagreed, adopting the case made on behalf of some interested landowners who also disagreed, does not give the Committee's opinion primacy nor equate to a finding that there was no rationale for the imposition of a PSB and its location. Again, it is simply a difference of opinion. The Minister went the other way.
142 Intertwined with the fact of Minister's choice to exercise her discretion, on the basis of a difference of opinion, is the fact that the reference to the Advisory Committee by the Minister was not an obligatory procedural requirement under the P&E Act.
143 It is clear that there were different views about the Bellarine Referral and the manner in which it ought to be interpreted. The fact that the Minister was seeking advice on the appropriateness of the proposed PSBs, rather than the inclusion of PSBs at all, does not show pre‑judgment. The Minister was entitled to seek advice from the Advisory Committee about a single aspect of the SPP in the manner that was undertaken. Section 151 of the P&E Act provides that the Minister 'may' establish committees to advise on any matters which the Minister refers to them. Referral under that provision is a matter of absolute discretion.
144 In essence, the Plaintiffs' complaint is that the Minister did not accept the Advisory Committee's recommendation. Submissions were received and the Minister sought advice from the Advisory Committee. There was no obligation in the P&E Act for the Minister to accept the recommendation of the Committee. The Committee has an advisory role, not a determinative role. However, that is not to say that the Minister ignored the Committee's recommendation. Rather, it is obvious on the advice of her Department that she disagreed with it.
145 The Minister was entitled to depart from the Advisory Committee's recommendation, particularly where the Advisory Committee declined (as interpreted by the Minister) to provide advice requested by the Minister as to the appropriateness of the proposed PSBs. I am satisfied that there is no error in the Minister declining to act on advice that was not requested but given and forming an alternative view. That the recipient of a recommendation may have an alternative view is a natural possibility of any recommendation, by definition.
The Finalisation Brief and the accompanying attachments
146 In all of the circumstances, taking into account the Advisory Committee's advisory role, the submission that the Minister did not meaningfully engage with the recommendation made in the Advisory Committee Report is not made out.
147 In particular, the Finalisation Brief was criticised as not providing an analysis which directly engaged with the Advisory Committee's recommendation and its reasons for recommending that no PSBs be imposed. Given the controversy as to the terms of the Bellarine Referral provided to the Advisory Committee and the Minister's interpretation of what she sought from the Advisory Committee, being the location of any PSBs, it is entirely acceptable that there was a rejection of the Advisory Committee's recommendation (which arguably answered a different question).
148 In the context of the Advisory Committee's role being one of recommendation and not determinative, the weight to be given to the Advisory Committee Report and the recommendation therein is significantly diminished. Put at its highest, the Bellarine Referral asked the Committee to consider the acceptability of the PSB in the context of a DAL which had identified the distinctive attributes of the declared area and had identified threats to those attributes by encroachment of urban development.
149 The Advisory Committee had agreed with the submissions made by the opponents to the designation of a PSB that the work which underpinned the SPP was inadequate. DELWP's strategic work and rationale for choosing the existing extent of urban development on the Bellarine Peninsula provided a countervailing position from that which was presented to the Committee by the pro‑development submitters.
150 The advice received by the Minister clearly disagrees with the Advisory Committee Report and its analysis. The Finalisation Brief sufficiently sets out the rationale for the rejection of the Advisory Committee Report.
151 On the facts, it appears that the Minister engaged with and considered the Advisory Committee Report before deciding to proceed with the alternative course.
Discerned rationale and consideration of the attachments
152 There is no obligation for the Minister to give reasons for her decision. In the absence of formal reasons, the rationale for the decision made by the Minister is to be discerned from the contemporaneous documents. This will include the Finalisation Brief and its attachments. The most relevant attachments are summarised above at [76], and include the Advisory Committee Report, the pre-election press release, the DELWP response document (Attachment 6), and the Consultation Summary. The Finalisation Brief itself has the intention of conveying information to the Minister and making a recommendation upon which she can accept or otherwise; Attachment 6 has a similar purpose in conveying an analysis of that recommendation. A press release of itself is a means of communication of a political message.
153 The Plaintiffs submitted that there was no evidence that the Minister considered or even read the attachments to the Finalisation Brief, and that the view that she did was 'pure conjecture in the absence of any evidence from Minister Blandthorn'.[116] They relied on the case of Stambe.
154 I disagree. I am not bound by the factual findings or inferences drawn by others in the particular circumstances which might have applied there. At best, a cautionary approach is urged, but that approach must in my view be seen in the context of all of the evidence.[117] Equally, I am not of the view that the contrary inference can be drawn that the Minister did not look at the attachments.
155 The DAL project which supported the preparation of the Draft SPP had been a matter of public record and process. To infer that the Minister looked only at the cover note, and was in complete vacuum as to the process and the consideration of community support as well as the opposition, is unlikely and an unsafe inference to draw. This is particularly so given the community controversy which had surrounded the planning for the Bellarine area for some time.
156 That the imposition of a PSB was without foundation is incorrect. The Advisory Committee's assessment took a particular view of the material that was provided to it. DELWP took a contrary view. DELWP called evidence to support the work undertaken to underpin the Draft SPP which included the settlement boundaries. That position was not accepted by the Advisory Committee. As noted above, this is a factual difference of opinion and thus not one which is amendable to review. DELWP expressed the view in the Finalisation Brief that the Advisory Committee exceeded the terms of the Bellarine Referral. It also recorded its disagreement with the Advisory Committee. This is most evident by DELWP's responses in the 'Comment' column of Attachment 6 (extracted above at [77]).[118] These views were part of the attachments to the Finalisation Brief and were matters that the Minister evidently considered.
157 The non-acceptance of the Advisory Committee Report and other attachments cannot be said to lack intelligible or evident justification. The imposition of the PSBs was based on strong and enduring community support (which is further addressed below). The option for a settlement boundary to be imposed is a tool available to manage the values identified in the DAL. It is also a tool, albeit a blunt one, to deal with management of the notified threats to those values. These threats are identified in the DAL and in the Background Paper supporting the Draft SPP.
158 Criticism of starting from the point of the existing settlement extent was expressed by the Advisory Committee. However, there is a logic to that starting point which cannot be said to lack intelligible justification. The basis of the approach to the settlement boundary is explained in the Background Paper.[119]
159 Further, the criticism that there was no need to impose a PSB mischaracterises the content of the press release where those words emerge. A press release is not to be construed as one might a statute. In my view, the use of the word 'need' is used as indicative of the response to the choices available in the preparation of the SPP. Nowhere is it required to be demonstrated that there is a 'need' for settlement boundaries or a PSB in particular. Section 46AV uses the plain language that the Minister 'may' specify settlement boundaries. It is clearly an option for the Minister to impose as part of a framework plan.
160 This argument is unpersuasive from a factual standpoint.
161 Equally, I am not bound by the decision of the Federal Court in Stambe and, in any event, each decision will turn on its own facts and circumstances as to whether the process of decision-making falls short of the legal requirements. In Stambe, the Minister was not a party and one party was making submissions on its own behalf, rather than on behalf of the Minister. What the applicant sought to draw from Stambe, as well as the Arthur and Caswell cases,[120] is that one can treat what is expressed in the cover note to the Finalisation Brief as reasons adopted by the Minister when she agreed with the recommendation made.
162 As I have made plain, the Finalisation Brief including all of its attachments will be relevant. There may be other documents which are also relevant but, as the decision of the Court of Appeal in Arthur (aka the Certain Children appeal) states, there may be an attempt to rely on other documents to bolster the correctness of the decision made by the decision‑maker:[121]
We do not accept, however, that the absence of a statement of reasons can operate to the advantage of the decision-maker, as the State's submission seemed to suggest. It simply has the consequence that the reviewing court is left to proceed on the basis of such other material as is in evidence ... [T]he court can reasonably assume that the respondent decision-maker, doubtless wishing to uphold the validity of the decision, will seek to put into evidence all such materials as will demonstrate that the relevant considerations were taken into account.
163 In this case, it is the Plaintiffs who seek to rely on other documents such as the media releases in an attempt to undermine the Minister's decision. The Plaintiffs, in their written submissions, take aspects of this quotation and seek to infer that the Minister has taken some untoward advantage upon the absence of her reasons, and by not giving evidence (in the Jones v Dunkel sense). However, as the Court of Appeal has emphasised, I must look at all of the materials. Having done so, I am satisfied that the Plaintiffs have not persuaded me that the Minister did not genuinely consider everything that was before her. I therefore do not accept, as argued by the Plaintiffs, that there is no evidence that the Minister herself formed the evaluative conclusions expressed in the Finalisation Decision, or that the Minister consequently sustained any unfair advantage in this proceeding.
164 Similarly, I am not satisfied that any Jones v Dunkel inference can be drawn from the Minister herself not giving evidence or providing an affidavit in this proceeding.
165 I accept the general proposition that there is no rule that adverse inferences can never be drawn in respect of a Minister not giving evidence. However, this is not the same as accepting that an adverse inference must be drawn in this case. It is clearly a context‑sensitive assessment. Whilst there have clearly been instances of Ministers in this country being appropriately subjected to a Jones v Dunkel inference,[122] as counsel for the Minister emphasised with reference to Jia and Haneef, there will almost always be an explanation for a Minister's absence sufficient to preclude the operation of Jones v Dunkel. Further, a Jones v Dunkel inference cannot be used to fill gaps or convert conjecture into suspicion.[123]
[O]n any view [the rule in Jones v Dunkel] cannot be applied in any unqualified way to a modern Minister of State ... Considerations of public interest immunity may loom large in some cases. A Minister is a policymaker and policy advocate as well as a decision-maker. Furthermore, the statement of principle in Jones v Dunkel is no more than a particular instance of the old rule ... that evidence has to be weighed according to the circumstances of, as well as the capacity of a party to adduce it.
167 The nature of the ministerial role is just one factor relevant to the determination of whether the Minister's absence in giving evidence is justified. In addition to this, the following matters are relevant in this case and I accept the Minister's submissions in this regard:
(a) Minister Blandthorn is not the current Planning Minister;
(b) all of the material that was before her at the time of making the Finalisation Decision has been put before the Court; and
(c) even if a Jones v Dunkel inference were to be drawn, it would not assist the Plaintiffs in discharging the onus placed upon them on review - the inference to be drawn is that the evidence would not have assisted the opponent's case, not that it would have been 'positively adverse to that party'.[125]
168 The Plaintiffs' argument in respect of Jones v Dunkel must fail. Again, in cases such as these, the reasoning of the Minister can be drawn from the contemporaneous materials, which I am of the view are satisfactory in this case and demonstrate the pathway taken by the Minister to reach her decision to impose the PSBs.
169 The Plaintiffs contended that the community consultation was not genuinely considered by the Minister in formulating her decision.
170 As the views of the Victorian community are a key aspect of the vision statement underpinning the preparation of the SPP (i.e. s 46AV(1)(a)), it is open to the Minister to give them weight in any decision to impose boundaries especially where there is strong support for those controls. The precise balance of that weighting will vary from case to case.
171 The Plaintiffs' submission that the Minister did not genuinely consult or meaningfully engage with the community in the preparation of the SPP is not made out. The point taken by the Plaintiffs as to engagement with the community was partly a temporal one, in that it was said that it was not undertaken in the preparation of the SPP, with some of the consultation being undertaken as part of the community scoping exercise prior to the declaration of the DAL.
172 Given my expressed view about the information provided to and satisfaction by the Minister to recommend a DAL declaration, the public consultation and engagement process will inevitably span across both the pre‑DAL time period and the preparation of the SPP (which is required once a DAL is declared). There is no doubt that the Minister has consulted widely and with the relevant entities across the spectrum of the process. The materials demonstrate that the Minister considered and treated the consultation process in the preparation of the SPP as a continuum.
173 By way of example, the timeline of this continuum is set out in a table contained within the materials provided to the Advisory Committee by the Minister, with the purpose statements for each of the phases summarised in the 'Details' column:[126]
DELWP sought the views of the local community regarding the valued attributes of, and threats to, the Bellarine Peninsula.
The Governor in Council declared the Bellarine Peninsula to be a distinctive area and landscape under the Act.
DELWP sought the views of the local community on a draft 50 year vision statement and potential policy approaches for the Draft SPP.
DELWP prepared the Draft SPP and commissioned various technical studies.
The Minister approved the Draft SPP, and the supporting technical reports, for public consultation.
The Draft SPP and supporting technical reports were exhibited for eight weeks and public submissions requested. 647 submissions were received.
The Governor in Council re-declared the Bellarine Peninsula to be a distinctive area and landscape under the Act.
174 This table also demonstrates how the Draft SPP itself was effectively considered a part of the broader and continuous consultation process. The Consultation Summary, both in its introduction and in citing the words of the public, similarly described the community engagement as being one of 'phases of public consultation' and 'the public consultation process'.[127] However, the point which seems to be made by the Plaintiffs is that the consultation required by s 46AW was required before any draft of an SPP was produced at all. In my view, it is an artificial construct to suggest that community feedback sought in the period after the declaration of the DAL (being the Phase 2 and Phase 3 consultation which includes the Advisory Committee process) is not consultation with the relevant entities as required by s 46AW. This proposition of the Plaintiffs is factually and legally unsustainable.
175 There was specific public consultation which occurred after 22 October 2019,[128] with both Phases 2 and 3 post‑dating the declaration of the DAL. It is not inconsistent with a consultation requirement, in preparing an SPP, for the Minister to first prepare a draft. Given the feedback from Phase 1 and the support for a PSB, it was not wrong for that draft to support a town boundary measure. The Minister's preparation of the Draft SPP inevitably, and in my view correctly, built on Phase 1 of the consultation which predated the declaration of the DAL.
176 The fact that the Minister referred the content of the Phase 1 submissions to the Advisory Committee demonstrates a meaningful commencement point. It is Phase 1 that, as was clearly stated in the purpose statement for that phase, sought to establish the initial scoping and community values for the area. Throughout the rest of the consultation process those concepts are refined until the final adoption of an SPP. Therefore, that the Draft SPP was then exhibited for further public consultation in Phases 2 and 3 demonstrates a direct engagement with the consultation requirements set out in Part 3AAB. The local community and others with an interest in the process were invited to make their submissions; they did, and those submissions were reviewed and recorded, as demonstrated by the Consultation Summary.
177 It was suggested that the Minister did not have regard to the best and most current information available as to the support for PSBs and did not take into account the Advisory Committee's opposition to them. However, the Minister had before her the Consultation Summary both in the Finalisation Brief as well as the documents attached to that brief. The Consultation Summary provided evidence of the significant community support for PSBs in the SPP. It also recorded the opposition to PSBs.
178 The Minister preferred the community sentiment supporting PSBs; giving that more weight does not establish error as the Minister is entitled to place what weight she considered appropriate on this factor.
179 Consequently, I am not persuaded that there was preparation of the SPP in the absence of meaningful and genuine consultation. That the views of those who objected to the settlement boundaries (and the views of the Advisory Committee) were not accepted does not demonstrate lack of consultation. Those views were not ignored; they were just one factor in the balance of considerations.
Rejection of Advisory Committee Report and contrary submissions based on pre‑election commitment?
180 Given the above reasoning, it follows that I am also not satisfied that the Minister made her decision based on any pre‑election commitment said to be encompassed in the pre‑election press release. I have found that the Minister had regard to matters set out in the Finalisation Brief which included the community consultation, the Advisory Committee Report and the advice from DELWP, and that these materials were genuinely considered.
181 I am not satisfied that the Finalisation Brief can be read in the limited manner as suggested by the Plaintiffs. There is reference to the pre‑election press release. There is also reference to a number of other matters which are relevant to the decision to be made by the Minister, and which it can be inferred that she took into account. Contrary to the Plaintiffs' submission, picking up the language of Gordon J in Plaintiff S183/2021,[129] no 'abuse' of statutory power has occurred.
182 Consequently, I do not accept the Plaintiffs' submission that the Minister rejected these materials simply because they were inconsistent with the pre‑election press release, insofar as that argument relates to unreasonableness (the pre‑election press release is discussed further below in respect of the apprehended bias claim).
183 The Minister submitted that the Court should refuse Ground 1 because it is, in substance, an invitation to the Court to engage in impermissible merits review under the 'cloak of legal unreasonableness'. The Plaintiffs' response to this, in their written reply, was that it was an 'inaccurate and unfair' characterisation of their case and failed to properly address their argument. I disagree. The Minister's submissions should not be distilled to this one introductory point. The Minister's written submissions were sufficiently detailed, fact‑orientated, and appropriately addressed the criterion of unreasonableness. The arguments of both of the parties were developed further at trial. In making the findings I have made above, and concluding that the decision was justifiable and not an abuse of power, I have accepted many of the cogent submissions.
Conclusion - Genuine consultation and meaningful engagement occurred
184 I accept that consultation and documentary engagement must be meaningful. I do not accept on the material before the Minister that it was not so. I have found that the Minister meaningfully engaged with the consultation process, the Finalisation Brief, and the attachments to the Brief. The requirement evinced in Zeally that the process be 'genuine' has been met, and the Plaintiffs' attempt to distinguish the present case in respect of the Minister's decision to specify PSBs in the SPP fails. There was ultimately a difference of opinion as to the adequacy of the material in support of the settlement boundaries, but that does not mean the decision was not justifiable.
185 I find that the Minister's decision to impose the PSBs did not lack an intelligible justification, having meaningfully engaged with the process and materials, and as such was not marred by any legal unreasonableness.
Ground 3: Is the Finalisation Decision affected by apprehended bias?
186 Ground 3 contends that the Finalisation Decision was affected by apprehended bias in the nature of pre‑judgment.
187 As I have indicated, this proposition relies on many of the same matters and issues as have been considered above with respect to the unreasonableness grounds dealt with above.
188 The Plaintiffs referred the Court to the following documents out of which they say arises a reasonable apprehension of bias:
(a) the Premier's pre-election press release;
(b) the Premier's second press release;
(c) the Minister's press release;
(d) the Background Paper; and
(e) the Finalisation Brief.
189 The Plaintiffs submitted that the Finalisation Decision was affected by apprehended bias in the nature of pre‑judgment because, for various reasons, a 'fair‑minded lay observer' might think that the Minister might have departed from the true course of decision‑making[130] - including in discharging her obligation under s 46AW to 'consult' with the 'local community' 'when preparing' an SPP, and in making a neutral evaluation of the recommendation in the Advisory Committee Report in relation to the Draft SPP - before making her Finalisation Decision. It was said that the Minister might have had 'a closed mind to the possibility of not specifying PSBs in the SPP'.
190 The Plaintiffs framed the relevant question as follows:[131]
[W]as Minister Blandthorn's mind genuinely 'open to persuasion' as to that possibility when she made her Finalisation Decision? Or, might the bystander reasonably apprehend that her mind might have been 'so committed' to specifying PSBs (of one alignment or another) in the SPP as to be 'incapable of alteration, whatever evidence or arguments may be presented'?
191 The Plaintiffs agreed that the 'political' role of the Minister impacts the application of the test of apprehended bias.[132] However, it was emphasised that it did not appear to be in dispute between the parties that the rule against bias had not been ousted. Notwithstanding the permissibly 'political' role of the Minister, the scheme requires the Minister to have - and also to appear to have - a mind that is genuinely open to the possibility of not specifying PSBs in an SPP, having regard to inter alia what emerged from the community consultation process.
192 The Court was urged to find that the bystander might so conclude on the basis of one or more of a combination of the following matters:
(a) the statement in the pre-election press release that '[a] re‑elected Andrews Labor Government will permanently protect the ... Bellarine Peninsula from over development' and that '[a] re‑elected Labor Government' will declare the Bellarine Peninsula as a DAL and that an SPP 'will set permanent ... town boundaries';
(b) the Background Paper in which the previous Minister, Minister Wynne, has already 'committed to setting settlement boundaries ... through the Bellarine Peninsula Distinctive Area and Landscape project';
(c) that Minister Blandthorn agreed with DELWP's advice and recommendation and then issued her press release on 7 October 2022 in terms that reinforced the inference that plainly might be drawn - that having PSBs for the Bellarine SPP was (in reality) locked in before the statutory consultation process under s 46AW had been conducted, or the Minister's consideration of the merits of the SPP had been conducted; and
(d) that the Premier and local member Lisa Neville MP announced Minister Blandthorn's decision on 7 October 2022, being the very same day that her own press release was issued.
193 Similarly as with Ground 1, the Plaintiffs sought to distinguish Zeally on various bases, including that in Zeally the issue was the location or alignment of PSBs, not the anterior issue of whether there should be any PSBs at all. This means that certain factual matters, which Richards J relied upon in holding that Minister Wynne had not predetermined the location of settlement boundaries and was 'not committed to slavishly implementing the Government's policy', are not relevant here. These included the Minister's appointment of the committee in that case to advise him about the Surf Coast SPP.
194 By contrast, in this proceeding it is submitted that the evidence reveals that Minister Blandthorn did not demonstrate independence of thought from the Government's position or from the pre‑election press release. The Plaintiffs argued that Minister Wynne 'urged the Committee not to consider the question of whether any PSBs at all were necessary or appropriate'. Further, it was said that Minister Blandthorn accepted DELWP's advice to ignore the Committee's 'inconvenient' recommendation that PSBs were not necessary and 'doubled-down' by issuing the Minister's press release.
195 The Minister's submissions emphasised the different standard applicable to Ministers as to apprehension of bias and that it is open for the Government, in the course of its political conduct, to express a view on a contested issue. It is then open for a Minister of the Crown to have regard to and to give effect to that governmental policy position in making a decision relevant to the issue.
196 In respect of the pre-election press release, a fair reading of the statements is that the Government was committed to permanently protecting the Bellarine Peninsula from overdevelopment, an SPP would set inter alia town boundaries which would need to be agreed to by Parliament. A fair‑minded lay observer would view the press release as a truly political document which does no more than convey a commitment to the preparation of an SPP for the Bellarine Peninsula, would depend on future work and was not the subject of prejudgment. Similarly, a fair‑minded lay observer would view Minister Wynne's 2018 statements to be political statements of great generality.
197 The Minister rejected that it was necessary for Minister Blandthorn to expressly disavow the statements made by the Premier and Minister in 2018, and certainly not the press release of 7 October 2022. The fact that the decision‑making authority is vested in an elected official is inconsistent with any implicit assumption that the body will exercise its powers in relation to planning issues with a blank mind.[133] I was referred to the decisions in Jia and Zaburoni v Minister for Immigration and Border Protection ('Zaburoni')[134] where negative and adverse public comments made by the relevant Ministers were insufficient to establish an apprehension of bias.
198 In respect of the Background Paper, the Minister submitted that the fair‑minded lay observer would not apprehend bias on the part of Minister Blandthorn by reason of Minister Wynne's commitment to settlement boundaries, as recorded in the Background Paper. In essence, it was argued that the commitment expressed was non‑specific nor did it treat PSBs in the Bellarine SPP as a foregone conclusion.
199 In respect of the 7 October 2022 statement, it was submitted that a fair‑minded lay observer would interpret the document as a summary of the Minister's reasons for making the Finalisation Decision, as well as a political document intended to publicise the Finalisation Decision. The message conveyed was that the PSBs in the Bellarine SPP have been implemented consistently with community feedback, the Advisory Committee had not recommended the inclusion of PSBs, and the Minister had departed from the Advisory Committee's recommendation.
200 It was submitted that Premier Andrews and Lisa Neville MP's announcement of the Finalisation Decision on 7 October 2022 could not rationally establish pre‑judgment on the part of Minister Blandthorn as there was nothing exceptional about a Premier and local member making a media comment on a local planning matter.
201 In respect of the Advisory Committee process, the Minister rejects the apparent submission of the Plaintiffs that the Advisory Committee process was not genuine or undertaken by the Minister in good faith. The fact that the Minister's position, on the confined terms of the Bellarine Referral, was that she was seeking advice on the appropriateness of (each of) the proposed PSBs (rather than the inclusion of PSBs at all) does not show pre‑judgment.
202 The Minister submits that, in substance, the Plaintiffs' complaint in this respect appears to be directed at the mere fact that the Minister did not accept the Advisory Committee's recommendation. A Minister is entitled to disagree with the recommendation as an exercise of independent decision‑making, particularly in circumstances where the Advisory Committee declined to provide the advice requested by the Minister as to the appropriateness of the PSBs proposed in the Bellarine SPP.
203 While accepting that each case of apprehended bias needs to be assessed having regard to the particular facts and circumstances, the Minister urged the Court to draw a number of parallels between Zeally and this proceeding, where Richards J found that the circumstances were not sufficient to establish a reasonable apprehension of bias. Those circumstances included the fact that the Minister in Zeally prepared the SPP in that case against the background of strongly expressed government policy, and the fact that the Minister had made submissions to the Committee that it should only consider two options (not the third option ultimately recommended by the Committee, and which the Minister rejected).
204 Lastly, the Minister submitted that no Jones v Dunkel inference can be drawn. A claim of apprehended bias is objective and does not require any conclusion about a decision‑maker's actual state of mind, which is irrelevant.[135]
205 There is significant overlap between the matters raised in support of the allegation of legal unreasonableness and this claim of apprehended bias. The relevance of the press releases and announcements are more pertinent to the consideration of apprehended bias than in considering legal unreasonableness, and so are dealt with in more detail in determination of this issue.
Relevant legal principles - Government commitments
206 The test for apprehended bias in a judicial setting is well established.[136] It is also well established that the standards applicable to claims of pre-judgment vary outside judicial decision‑making. The question is whether a fair‑minded lay observer might reasonably apprehend that the decision‑maker might not bring an open or persuadable mind to the question to be decided.[137] The courts have accepted that the behaviour of those holding elected office is influenced by their political roles and public opinion, and have been reluctant to apply the same requirements to Ministers.
207 In what has been referred to as the classic case, Franklin v Minister of Town and Country Planning ('Franklin'),[138] the House of Lords essentially held that the Minister was not subject to the bias rule when considering a report on his proposal to site a large new town in a certain area. The Minister was held to have discharged his duty, despite his earlier public speech indicating that his proposal would prevail over all objections. Franklin was described by the majority of the High Court in Jia as a 'useful reminder' of how the requirements of bias are modified when applied to Ministers.[139] Chief Justice Gleeson and Gummow J thought the Minister's position in the administrative process was substantially different to that of a judge or jury involved in adversarial litigation, which meant that the same 'standards of detachment' were not expected of Ministers. In Jia, the Minister had made clear and almost uncompromising statements in a radio interview about the character assessment process in respect of visa decisions. The statements were relevant (if not decisive) to the applicant's case, but the Court refused to accept that the Minister had improperly pre‑judged the matter. The Court stressed that it was necessary, even desirable, for the Minister to be drawn into public debate and express opinions on issues within his ministerial role.[140]
208 In Eastman v Australian Capital Territory,[141] the Attorney‑General's refusal of three applications for release from a prisoner did not create an apprehension of bias for a further release application. The case had generated so much publicity over the years, often through repeated claims from the prisoner against public officials, that the Court held that it was unrealistic for any Minister not to have formed or expressed views of the case.
'[I]t has been said that "the whole object" of the statutory provision placing a power into the hands of the Minister "is that he may exercise it according to government policy"'. And where, as here, the criterion to be applied by the Minister requires the Minister to be satisfied that the grant of the visa is 'in the national interest', the decision‑maker 'may properly have regard to a wide range of considerations of which some may be seen as bearing upon such matters as the political fortunes of the government of which the Minister is a member and, thus, affect the Minister's continuance in office'.
210 These observations are pertinent in the present case.
211 I agree with the learned authors of Judicial Review of Administrative Action and Government Liability who, after discussing a number of the cases referred to above, made the following observation:[144]
These cases expose a level of tension though we suggest that is superficial. The bias rule requires decision‑makers to have a sufficiently open mind about issues which come before them in order to promote public confidence in public sector decision‑making. Cases providing latitude in the bias rule to elected officials arguably seek to bolster public confidence in governmental decision‑making in a different way, by allowing those seeking election to public office to make and then honour promises. The latitude the courts provide to elected officials arguably recognises this other imperative, which is limited by the rule that any views of the official 'cannot proceed from, or be based in, an error of law'.
Was there a pre-commitment constituting apprehended bias?
212 In the context of these authorities, there is a distinction between a promise to undertake a project or to enact a certain course of legislative change, as part of a pre‑election commitment, and there being a foregone conclusion or assumption that this commitment reaches the threshold of apprehended bias.
213 The mere making of a commitment alone is not sufficient to sustain this challenge.
214 In the context of a Planning Minister's role as an elected official and his or her obligations under the legislation - as the entity charged with executive carriage of the preparation of amendment to planning schemes - the answer to whether bias exists will depend on all of the circumstances. The reasonable fully informed bystander would be well aware of the dual roles of the Minister. It would be nonsensical to suggest that the mere fact that a decision‑maker (in an administrative sense) is also a political actor will automatically disqualify the decision made as being affected by apprehended bias. This is clearly also the case where a government commitment was not given by the Minister who is to make the relevant decision. That this outcome or analysis might be open was (rightly) conceded by the Plaintiffs in framing their grounds.
215 The next question that naturally arises concerns what to make of the fact that the member of government who made the commitment was the leader of the government.
216 Context is key. The commitment was made as a pre‑election press release. I do not consider that such an announcement, to do something if re‑elected, is anything more than a political statement. Particularly so where there is legislation which governs the process to be followed.
217 Examination of the relevant documents, and related actions taken by the Premier and the Minister, does not support the Plaintiffs' submissions.
Premier's press releases and Surf Club announcement
218 The Plaintiffs rely on the two press releases issued by the Premier, being the 2018 pre‑election press release and the Premier's second press release issued after the Minister's approval of the SPP in October 2022. The Plaintiffs did not contend that the pre‑election press release and the Premier's second press release constitute formal reasons for the decision.
219 The status and effect of these documents requires analysis. A press release is not a document which can be read closely, as one would read a legal document or statute.
220 In any event, a fair reading of the pre-election press release conveys to a fair‑minded reader a political promise to protect the specified areas (including the Bellarine Peninsula) from overdevelopment, and the certainty that comes with mandatory (rather than discretionary) planning controls. The Greater Geelong, Bellarine and Surf Coast areas are politically contested electorates. A distinction is drawn in the text of the press release between this proposed approach and the allegedly covert and ad hoc approach of the opposition party. The press release promises to declare the Bellarine Peninsula area a DAL and correctly observes that this triggers the requirement for an SPP to be prepared. It then states that the SPP 'will set permanent height controls and town boundaries to protect the environment, landscape and local lifestyle'.
221 I consider this press release as no more than an election pitch to the local electorate, in an area where the extent of development has been contentious and the subject of significant community pressure.
222 I am not convinced that a pre-election commitment, framed as a protection of a locality from overdevelopment, is anything more than a political statement which may or may not be able to be delivered. History is littered with many core and non‑core promises which may come to fruition either as promised, modified or not at all. An explanation as to the mechanism to deliver that promise to the electorate is not equivalent to proof of a closed mind or ignorance of the process which the legislation requires be followed.
223 The second press release relied upon by the Plaintiffs for context is that issued on 6 October 2022, after the Minister's Finalisation Decision. Whilst the Plaintiffs in general placed more emphasis on the pre‑election press release in respect of the bias argument, at trial it was submitted that the Premier's second press release demonstrated that the Premier was the true driving force behind the Decision. Counsel submitted as follows:[145]
[T]he fact that it's the Premier announcing the decision is yet again just one element that supports our apprehended bias case. It's because it was the Premier who made the commitment on behalf of the government. It's the Premier who continues to be front and centre ... Minister Blandthorn could, at any point in time, have distanced herself from the implacable and unqualified position of the Premier ...
224 This argument is untenable. In my view, a fair-minded lay observer could not sensibly conclude a decision was adversely affected by bias where a political party as part of its campaign for re‑election makes a commitment to do something and then delivers on that promise having engaged in a strategic planning and consultative process. In such a scenario, the party has delivered on what it told the community it would do. Announcement of such progress is natural, and how the government choses to announce such things or engage with media is a matter for them.
225 The Plaintiffs sought to paint the actions of the Premier in his pre‑election press release, second press release, and the announcement made at the Ocean Grove Surf and Lifesaving Club (together with Lisa Neville MP), as evidence of the lack of a proper decision‑making process by the responsible Minister inferring almost that she was acting under dictation. The Plaintiffs' emphasis on the persuasive influence of the former Premier was far from subtle. In my view, this emphasis was misplaced and was not persuasive. The announcement by the Premier and local member at a Surf Club cannot rationally establish pre‑judgment on the behalf of the Minister. There is nothing exceptional or unusual about the Premier and a local member making media comment on a planning matter.
226 The Minister also issued a press release on 7 October 2022. Again, whilst a point was sought to be made of its date of issue (the day after the Premier's second press release), I do not consider there is anything insidious, colourable or adverse posed by that sequence. This is particularly so given how closely the press releases followed each other. As I have said, how a government choses to run its media engagement is a matter for it to determine.
227 I am of the view that a fair-minded lay observer would interpret the Minister's press release as providing a summary of the reasons for which she made the Finalisation Decision, none of which demonstrate pre‑judgment. The fair‑minded lay observer would also be aware, and in my view accept, that the document is a political document intended to publicise the Finalisation Decision and not to provide formal reasons for the Finalisation Decision.
228 The Draft SPP and annexed Background Paper were prepared at the time of a previous Planning Minister. However, it was the same Minister who referred the submissions received on the Draft SPP to the Advisory Committee for advice. I accept that a fully informed fair‑minded lay observer would not apprehended bias on behalf of the Minister by reason of the previous Minister's commitment to settlement boundaries as recorded in the Background Paper. In any event, I do not consider that in the context of a planning scheme amendment introducing policy in respect of a DAL that the identification of PSBs constitutes apprehended bias or legal error.
229 I note that the Draft SPP is not an annexure to either the Finalisation Brief or the Approval Decision. This is understandable, as the Draft SPP was now superseded by the final form of the proposed SPP, which was Attachment 1 to the Finalisation Brief. The Background Paper stated that its intention was to provide the methodology the project used to determine settlement boundaries, proposed settlement boundary locations and proposal outcomes across the Bellarine Peninsula settlements. This makes clear that proposed settlement boundary locations and built form outcomes remain as proposals.
230 In my view, a fair reading of the Draft SPP and the Background Paper demonstrates specific consideration as to the existence of the desirability of settlement boundaries and PSBs. It is also apparent that specific criteria were used to assess the currency of the existing settlement boundaries, noting the relative objectives in s 46AN of the P&E Act, the relevant policy direction in the Draft SPP and public engagement feedback. The detailed analysis in Table 9 of the Background Paper is supplemented by individual tables with respect to relevant geographical areas and summarises the compliance with the existing settlement boundaries and the criteria set out in Table 9.
231 A commitment to setting settlement boundaries in circumstances where the planning scheme already sets settlement boundaries does not display pre‑judgment. The nature, location and extent of any PSB remained for determination by the Minister.
232 In this sense, it is worth making a further brief point regarding the consultation process (which has been discussed extensively above with regards to the unreasonableness ground, and some aspects of my findings above are relevant here).[146] In my view, a fair‑minded lay observer would consider the extensive public consultation process as indicative of genuine engagement. I cannot see how one might apprehended bias from a Minister persisting with Phases 2 and 3 of a lengthy public engagement process. Hypothetically, why would a Minister seized by bias bother continuing with the latter phases of a complex and expensive process if their mind had been made up since Phase 1? It would be a costly façade.
233 The Finalisation Brief has been discussed in detail in respect of the unreasonableness argument, and many of my observations do not bear repeating here. Ultimately, the Finalisation Brief is a reflection of the entire SPP preparation process and is the culmination of all the work put in by the Minister, DELWP and the Advisory Committee. As I have found,[147] the Finalisation Brief genuinely took into account the recommendation of the Committee. It is plain that the Finalisation Brief referred to more than just the press releases and was built upon the extensive community consultation process.
234 In such circumstances, taking into account the Brief and its attachments, I am not persuaded that a reasonable lay observer could perceive bias from the Finalisation Brief, from any of the preceding documents, or ultimately from the Finalisation Decision. The Minister did not specify PSBs merely or simply because it was what had been promised by the government - there were multiple reasons and (as I have found above) she engaged with and considered those reasons as well as the countervailing positions.
235 Both parties sought to draw comparison or distinctions in respect of the Zeally decision.
236 In Zeally, Richards J, in considering whether a reasonable apprehension of bias might be established, found that the following were not sufficient matters to make a finding that the Minister's mind was closed: [148]
(a) that the Minister prepared the Surf Coast SPP against the background of a strongly expressed government policy;
(b) that a fair-minded observer would reasonably expect the Minister to be predisposed to give effect to that policy when preparing the Surf Coast SPP;
(c) that the Draft SPP indicated that the Minister was predisposed against conventional residential development of the Spring Creek area; and
(d) that the Minister had made submissions to the committee that it should only consider two options and not the third option ultimately recommended by the committee (which the Minister rejected).
237 Justice Richards in Zeally observed that the preparation of an SPP under Part 3AAB of the P&E Act involves an exercise of a 'political nature'.[149] It also requires considerations of strategic planning matters. It is plainly open to the Minister to form the view that PSBs should be included in an SPP. Part 3AAB contemplates the use of PSBs as a statutory shield to achieve the objects of that Part.
238 In my view, the statutory scheme contemplates that the Minister will form a view on whether PSBs should be included in the SPP and, where relevant, will advance those views before the Advisory Committee. In this sense, I see no inconsistency between Zeally and the findings that I have made.
239 As I have said above (at [165]), the application of the rule in Jones v Dunkel is a context-sensitive assessment. The applicable principles do not bear repeating.
240 I accept the Minister's submission that a claim of apprehended bias must be assessed objectively and does not require any conclusion about the decision‑maker's actual state of mind.[150] Accordingly, whether apprehended bias is established will depend on the fair‑minded lay observer and not the Minister's subjective reasons for making the Finalisation Decision. It thus makes the claim that the Minister ought to have given evidence hollow.
241 Insofar as reliance on a Jones v Dunkel inference is said to apply in respect of apprehended bias, this ground must fail.
242 The Plaintiffs contended that the Minister's Finalisation Decision was affected by apprehended bias because a reasonable lay observer might form the view that she did not bring an open mind to the evaluation of the task under s 46AW. This was said to be demonstrated by her rejection of the Committee's recommendation, her alleged failure to 'consult' in the preparation of the SPP, and that she was influenced instead by the pre‑election promise. The impact of the pre‑election promise was said to be evidenced by the Premier's pre‑election press release, the Background Paper prepared by the previous Minister, and the Ministerial Briefing Paper. The latter referred to the pre‑election press release and the Minister's failure to distance herself from this pre‑election commitment or to provide a rationale for why she rejected the Committee's recommendation.
243 As I have set out, I do not agree that the Premier's pre‑election press release demonstrates an apprehension of bias. Nor do I form the view that this is confirmed by the subsequent press releases, either from the Premier or the Minister herself, nor any of the other relevant documents.
244 In respect of the political nature of the process in the P&E Act for the preparation and adoption of an SPP (with or without a PSB), I make the following observations:
(a) I accept that when the decision-maker is a Minister and therefore likely to be a member of a political party, a reasonable observer would accept that the Minister's decision is to be made in the context of the Minister's active involvement in political affairs.[151]
(b) I accept that the press releases and other comments made in respect of the proposed nature and content of any SPP for the Bellarine Peninsula do not convey a pre‑judgment. They are political statements of generality and a fair‑minded lay observer, taking into account the whole of this political context and that the statements are made by political actors, would interpret them as such.
(c) I disagree that the Minister was required to expressly disavow statements made by either the Premier or earlier Planning Ministers. There are a range of factors to be considered by the Minister in preparation of an SPP and the extent and nature of such policy document preparation is a matter which would be known to the informed fair‑minded lay observer.[152]
(d) I also accept that the Minister's press release of 7 October 2022 was a political document intended to provide a short summary of the basis upon which the Minister had departed from the Committee's recommendation.[153]
245 In my view, it would be inconsistent with the authorities to conclude that - given the fact the decision‑making authority in respect of the preparation and adoption of the Bellarine SPP is an elected official - the Minister will exercise her powers in relation to planning issues with a blank mind as to what might be appropriate for development in an area and what may not. It has been observed that 'the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers'.[154] Both Jia and Zaburoni are examples of cases where negative and adverse public comments made by the relevant Ministers were insufficient to establish an apprehension of bias. I accept the Minister's submissions in this regard and note the decision in Jia is discussed above at [207]. It follows that, if adverse and negative statements made by the Minister responsible for making the relevant decision will generally be insufficient to establish an apprehension of bias, it is difficult to see how statements made by politicians other than the relevant Minister can be said to have affected the Finalisation Decision.
Ground 5: Is the Approval Decision consequentially invalid?
246 Ground 5 contends that the lawful preparation of an SPP under s 46AT of the P&E Act for the declared area was a jurisdictional pre‑condition to the Governor in Council (or the Lieutenant‑Governor in Council) approving the Bellarine SPP under s 46AY(1).
247 As such, if the Finalisation Decision is invalid, the flow on effect would be that the Approval Decision is also invalid and that the Bellarine SPP has not taken effect.
248 The Minister agreed that if the Plaintiffs succeeded on Ground 1 or Ground 3, then they would succeed on Ground 5.
249 As I have not found error in respect of the apprehended bias nor unreasonableness grounds, this ground being reliant on those grounds must also fail.
250 In view of the foregoing reasons, all grounds fail and the application for judicial review is refused. Neither the Finalisation Decision nor the Approval Decision are affected by jurisdictional error, and the Bellarine SPP as approved is valid.
251 I will provide the parties with an opportunity to make submissions as to any application for costs.
[1] See Zeally Investments Pty Ltd v Minister for Planning [2023] VSC 755 ('Zeally') in respect of a similar proceeding concerning the Surf Coast Statement of Planning Policy.
[2] The Plaintiffs relied on a copy of a press release issued by the Premier on 27 September 2018 which is set out at [41]. The announcement made included both the Bellarine Peninsula and the Surf Coast regions.
[3] Approval to seek endorsements of the Final Draft Bellarine Peninsula Distinctive Area and Landscape Statement of Planning Policy (brief reference number MBR048012), contained in Exhibit MJO‑1 to the affidavit of Michael James Orford (filed 20 June 2024, S ECI 2022 05052, Supreme Court of Victoria).
[4] Plaintiffs' Outline of Submissions (filed 29 July 2024, S ECI 2022 05052, Supreme Court of Victoria), [2.1] ('Plaintiffs' Submissions').
[5] Planning and Environment Act 1987 (Vic), s 1 ('P&E Act').
[12] Such as outstanding environmental significance, significant geographical features, heritage and cultural significance, etc.
[16] In relation to the declaration of a DAL.
[17] In relation to the revocation of such a declaration.
[18] In relation to minor or technical corrections to an SPP.
[19] See, e.g., FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 414-415 (Brennan J_); R v Toohey; ex parte Northern Land Council_ [1981] HCA 74; (1981) 151 CLR 170, 204-205 (Stephen J), 220 (Mason J), 260 (Aickin J). Further, under s 38 of the Interpretation of Legislation Act 1984 (Vic), the 'Governor in Council' is understood to mean the 'Governor with the advice of the Executive Council'.
[26] These documents and events are sourced from the Plaintiffs' amended chronology dated 20 November 2024.
[27] At the time of writing this decision, the press release is available on the Premier of Victoria's website at .
[33] Victoria, Government Gazette, No. S 430, 29 October 2019, CB 215.
[35] 'Declaration of the Bellarine Peninsula as a Distinctive Area and Landscape', Order in Council No. G37, 16 September 2021, CB 894-897 (emphasis added).
[39] Executive Summary, Background Paper, CB 305.
[47] CB 1598, 1599 [10], 1600 [13], 1601 [16]-[22], 1605 [43]. Similar submissions were also made on 20 April 2022 at CB 1537 [3].
[48] CB 1675, 1683, 1684, 1703-1705, 1709-1733.
[54] CB 2194. This was mislabelled as 'Attachment 2'. See Transcript, 43.4-6.
[60] At the time of writing this decision, the press release is available on the Premier's website at .
[78] See, e.g., Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, [47] (Allsop CJ, Robertson and Mortimer JJ) ('Singh'); Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, [6], [12] (Allsop CJ); Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; (2022) 96 ALJR 464, [31] (Gordon J). See also, e.g., Medical Board of Australia v Liang Joo Leow [2019] VSCA 532, [117] (Niall JA); Sidiqi v Kotsos [2021] VSCA 187, [57]-[58] (Beach, Kaye and Osborn JJA).
[79] Transcript of Proceedings, Shell Road Development Pty Ltd v Minister for Planning (Supreme Court of Victoria, S ECI 2022 05052, Quigley J, 19 and 20 November 2024) 84.10-21 ('Transcript').
[80] [2022] HCA 15; (2022) 96 ALJR 464, [31], [43] (Gordon J) ('Plaintiff S183/2021').
[81] Ibid, [31] (emphasis in original).
[82] See Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 45 (Mason J) ('Peko‑Wallsend'); Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, [41]; Victoria Legal Aid v Kuek [2010] VSCA 29; (2010) 26 VR 700, [23] (Buchanan JA, Weinberg JA and Ross AJA agreeing). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 (Bowen CJ and Deane J).
[83] [2023] VSC 755, [81].
[84] Cf. [2023] VSC 755, [80]-[86].
[85] [2019] FCA 43; (2019) 270 FCR 173 ('Stambe'). I was also referred to other cases in illustration of this point including:
(a) Minister for Families and Children v Arthur (2016) 51 VR 597, [95]. See also Certain Children v Minister for Families and Children [2016] VSC 796; (2016) 51 VR 473, [272] (Garde J), being the judgment from which the appeal in Arthur was unsuccessfully brought.
(b) Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 169-170, as cited in Stambe, [76].
[86] Stambe, 174 (headnote), [66], see also [17], [65] (Mortimer J).
[87] [1959] HCA 8; (1959) 101 CLR 298 ('Jones v Dunkel').
[88] The Plaintiffs referred to Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335, [87] (Murphy and Rangiah JJ), citing as examples: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, Burgess v Minister for Immigration and Border Protection [2018] FCA 69, Lebanese Moslem Association v Minister for Immigration and Ethnic Affairs [1986] FCA 290; (1986) 11 FCR 543, Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 and Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144.
[89] Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [58] (Gageler J).
[91] Which was mislabelled as 'Attachment 2'. See Transcript 43.4-6.
[92] (2001) 205 CLR 507, [143] (Kirby J), [284] (Callinan J).
[93] [2007] FCA 1273; (2007) 161 FCR 40, [325] (Spender J).
[94] [2012] HCA 61; (2013) 249 CLR 332 ('Li').
[95] [2018] HCA 30; (2018) 264 CLR 541 ('SZVFW').
[96] Li, [76] (Hayne, Kiefel and Bell JJ).
[97] SZVFW, [10] (Kiefel CJ); [82] (Nettle and Gordon JJ).
[99] Li, [72], quoting Peko-Wallsend, [15(d)].
[101] SZVFW, [11]-[12] Keifel CJ, [52] (Gaebler J), [135] (Edelman J).
[102] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, 28 (Allsop CJ, Besanko And O'Callaghan JJ).
[103] Draper v Victoria Building Authority [2022] VSC 487, [167] (Ginnane J).
[104] Singh, [44]-[47] (Allsop CJ, Robertson and Mortimer JJ).
[105] Discussed above at [101] (Plaintiffs' submissions) and [112] (Minister's submissions).
[106] In this sense, the question of whether the decision to include PSBs was within the 'range of acceptable outcomes' that could have been reached by the Minister based upon the material that was before her does invite an analysis of the Minister's reasoning, because it is the process of reasoning that fills the gap between receiving the materials and formulating the outcome.
[107] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [55]-[57] (French CJ, Bell, Keane and Gordon JJ).
[108] Singh, [44] (Allsop CJ, Robertson and Mortimer JJ).
[109] Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, [7] (Allsop CJ).
[110] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, [48] (Allsop CJ, Robertson and Mortimer JJ).
[111] Li, [76] (Hayne, Kiefel and Bell JJ).
[115] Li, [76] (Hayne, Kiefel and Bell JJ).
[117] See Stambe, [70] (Mortimer J): 'I consider the Court should be cautious about the inferences it draws about what a Minister did or did not do, read or did not read, considered or did not consider, in exercising a statutory power, in the absence of any direct evidence about these matters.'
[118] Being the document known as 'DELWP response to DALSAC recommendation' which was mislabelled 'Attachment 2'. See Transcript, 43.4-6.
[119] I note that a similar approach to the establishment of a settlement boundary was taken in the preparation of the Surf Coast SPP which was the subject of the Zeally proceeding.
[121] Arthur, [95] (Warren CJ, Maxwell P and Weinberg JA).
[123] Odgers, Uniform Evidence Law (Thomson Reuters, 20th ed, 2025) [EA.55.180], citing: Jones v Dunkel, 308 (Kitto J) and 312 (Menzies J); Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, 143 (Gleeson CJ and McHugh J); Kordan Pty Limited v Commissioner of Taxation [2000] FCA 1807, [48]; King v Collins [2007] NSWCA 122, [42]; Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135, [72]; Morley v Australian Securities & Investments Commission [2010] NSWCA 331; (2010) 247 FLR 140, [634]; JP Morgan Australia Ltd v Consolidated Minerals Pty Ltd [2011] NSWCA 3, [65]; Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (2011) 16 ANZ Insurance Cases 61-885; [2011] FCAFC 53, [79]; Moore v Moore [2014] FLC 93-595; [2014] FamCAFC 113, [163]; Trkulja v Markovic [2015] VSCA 298, [98]; Toll Pty Ltd v Harradine [2016] NSWCA 374, [79]; and citing: Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1, [115]-[117]; Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112; (2019) 270 FCR 335, [91].
[125] Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, [232] (Heydon J).
[128] 22 October 2019 was the date of the declaration of the DAL which triggers the requirement for the Minister to prepare an SPP in accordance with Part 3AAB.
[130] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, 293-294 (Mason, Murphy, Brennan, Deane and Dawson JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) ('Ebner'); Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, [68] (McHugh J) ('Creasy'); McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, [14] (Spigelman CJ) and [72] (Basten JA) ('McGovern'); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [162] (Edelman J), [193] (Steward J), and [274] (Jagot J) ('QYFM').
[131] Here, the Plaintiffs cite Jia (2001) 205 CLR 507, [71]-[72] (Gleeson CJ and Gummow J) and note see also, e.g., Asset Energy Pty Ltd v Commonwealth Minister for Resources (2023) 179 ALD 278, [29]-[33] (Jackson J).
[132] Although the (double might) test, itself, is the same. See e.g. Creasy [70] (McHugh J).
[133] McGovern, [157] (Basten JA).
[134] [2017] FCAFC 205; (2017) 256 FCR 197, [34] (Griffiths, Moshinsky and Bromwich JJ) ('Zaburoni').
[135] QYFM, [68], [73] (Gordon J), [158]-[159] (Edelman J).
[136] Ebner (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[137] Jia, [71]-[72] (Gleeson CJ and Gummow J); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, [22]-[27] (Kiefel, Bell, Keane and Nettle JJ) and [59] (Gageler J).
[138] [1947] UKHL 3; [1948] AC 87 ('Franklin').
[139] Jia, [102] (Gleeson CJ and Gummow J, Hayne J agreeing).
[141] [2013] ACTSC 184; (2013) 279 FLR 249, [22] (Rares J).
[143] Ibid, [18]-[19] (French CJ Hayne, Kiefel, Bell, Gageler and Keane JJ), citing Creasy, [50] (Gaudron, Gummow and Hayne J), and Wade and Forsyth, Administrative Law (Oxford University Press 8th ed, 2000), 464.
[144] Aronson, Groves and Weeks_, Judicial Review of Administrative Action and Government Liability_ (Thomson Reuters, 7th ed, 2022), [10.270].
[146] See above at [169]-[179] regarding the intrinsic link between the Draft SPP and the consultation process, as part of the continuum of public engagement, and the genuine nature of that process.
[147] See above at [146]-[163] reading the Finalisation Brief and the attachments.
[150] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, [68], [73] (Gordon J), [158]-[159] (Edelman J).
[151] Austin BMI Proprietor Limited v Captivity Premier [2023] QSC 95, [160] (Freeburn J).
[152] Zeally, [163], [166] (Richards J).
[153] Zaburoni, [34] (Griffiths, Moshinsky and Bromwich JJ).
Shell Road Development Pty Ltd
Minister for Planning [2025] VSC 525
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