Plaintiffs v First Defendant

1 Spring Creek is an area of land to the west of Duffields Road in Torquay, Victoria, which lies within the Surf Coast Shire and is part of the broader Surf Coast region. The plaintiffs in this proceeding own or have an interest in about half the land in the Spring Creek area, specifically an area of 87 hectares at 80 Duffields Road, Torquay and an area of 38 hectares at 140 Duffields Road, Torquay.

2 The future use and development of the Spring Creek area has been a matter of contention in the Surf Coast region for many years. The plaintiffs wish to subdivide their land for residential development, but this has met with opposition from many sources. The most recent development in the tortuous planning history of the area was the approval by the Governor in Council of the Surf Coast Statement of Planning Policy (Surf Coast SPP) under Pt 3AAB of the Planning and Environment Act 1987 (Vic) (Planning Act) on 25 October 2022.

3 The Surf Coast SPP is intended to create a framework to guide future use and development of land within the declared Surf Coast distinctive area and landscape (Surf Coast declared area). Among other things, the Surf Coast SPP applies a protected settlement boundary around Torquay-Jan Juc that excludes the Spring Creek area from the settlement. Implementation of the Surf Coast SPP through an amendment to the Surf Coast Planning Scheme will rezone the Spring Creek area from Urban Growth Zone to a rural zone, precluding residential development of the plaintiffs' land for the foreseeable future.

4 In this proceeding, the plaintiffs challenge the validity of the Surf Coast SPP by impugning two decisions made along the way to its ultimate approval by the Governor in Council.

5 The first of these decisions is the Minister for Planning's approval on 3 April 2022 of a final draft of the Surf Coast SPP for endorsement by responsible public entities and relevant Ministers under s 46AX(1) of the Planning Act (Finalisation Decision). The Minister gave written reasons for his Finalisation Decision (Reasons), in particular his determination that the Spring Creek area should be outside the Torquay-Jan Juc settlement boundary. The plaintiffs contend that the Finalisation Decision was invalid because:

(a) the Minister did not consult when preparing the Surf Coast SPP as required by s 46AW of the Planning Act;

(b) the Minister acted irrationally or unreasonably in making the Finalisation Decision, specifically in concluding that his preferred settlement boundary would not compromise land supply;

(c) the Minister's consideration of land supply constraints was not in accordance with the Planning Act; and

(d) the Finalisation Decision was affected by bias in the form of prejudgment.

6 The second decision is the decision of the Surf Coast Shire Council made on 23 August 2022 to endorse the Surf Coast SPP under s 46AX(1) of the Planning Act (Endorsement Decision). The plaintiffs say that the Council's Endorsement Decision was invalid because:

(a) it was unreasonable, in that it lacked an evident and intelligible justification; and

(b) the Council misunderstood the law that it was to apply in making the Endorsement Decision, and so constructively failed to exercise its jurisdiction.

7 The plaintiffs say that the Finalisation Decision and the Endorsement Decision were both necessary preconditions to the approval of the Surf Coast SPP. Their case is that the invalidity of these two decisions means that the approval of the Surf Coast SPP is also invalid, and that it has no legal effect.

8 The plaintiffs seek orders in the nature of certiorari quashing the Finalisation Decision, the Endorsement Decision, and the Minister's decision to recommend approval of the Surf Coast SPP to the Governor in Council. They also seek declarations to the effect that these decisions and the Surf Coast SPP are void and of no effect.

9 The Minister contends that both the Finalisation Decision and the Endorsement Decision were free from error, and the Council defends the validity of the Endorsement Decision.

10 For the reasons that follow, none of the plaintiffs' grounds are made out, and the proceeding must be dismissed.

11 The Spring Creek area comprises approximately 245 hectares of land extending about one kilometre west of Duffields Road. Its northern boundary is Grossmans Road, Duffields Road provides its eastern boundary, and the Great Ocean Road runs along its southern edge. The land to its west is rural, and there is no tangible western boundary. The features of the Spring Creek area are depicted in Figure 1 below.

Figure 1: Precinct Features, in Surf Coast Shire, Spring Creek Precinct Structure Plan (April 2016), 6, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.

12 The area is located west of Torquay in the Surf Coast region to the south of Geelong. Figure 2 below shows the location of the Spring Creek area in its regional context.

Figure 2: Regional Context, in Surf Coast Shire, Spring Creek Precinct Structure Plan (April 2016), 4, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.

13 As at January 2013, the Spring Creek area was in the Farming Zone but was designated for future urban growth in the Torquay-Jan Juc framework plan in the Surf Coast Planning Scheme. The Council exhibited Amendment C66 to the Surf Coast Planning Scheme, which proposed to remove that designation and place the Torquay-Jan Juc settlement boundary at Duffields Road. This proposal was the subject of a panel hearing in mid-2013. The panel recommended that the Spring Creek area remain designated for future urban growth and be rezoned accordingly. Although the Council disagreed with this recommendation, the Minister accepted it and took steps to implement it.

14 On 11 March 2014, the Minister adopted and approved Amendment C95 to the Surf Coast Planning Scheme. This amendment rezoned almost all of the Spring Creek area from Farming Zone to Urban Growth Zone.[1] The Urban Growth Zone exists to manage the transition of non-urban land to urban land in accordance with a precinct structure plan. Land in the Urban Growth Zone cannot be subdivided and developed for urban use until a precinct structure plan has been developed and incorporated in the relevant planning scheme.

15 After the approval of Amendment C95, the Council developed a Spring Creek Precinct Structure Plan (Spring Creek PSP), which is the source of the maps in Figures 1 and 2. On 24 October 2017, the Council adopted Amendment C114 to the Surf Coast Planning Scheme. If Amendment C114 had been approved by the Minister, it would have incorporated the Spring Creek PSP in the Surf Coast Planning Scheme, and would have allowed for the subdivision, development and use of the plaintiffs' land for residential purposes.

16 However, the Minister did not approve Amendment C114. On 1 October 2018, the Minister returned the amendment to the Department of Environment, Land, Water and Planning[2] for review in relation to the provision of a primary school site, the protection of some native vegetation, and dwelling density and road layouts. This review was overtaken by the Minister's announcement on 30 October 2018 that he intended to declare the Surf Coast area a distinctive area and landscape under Pt 3AAB of the Planning Act.

17 The purpose of the Planning 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'.[3] 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 Act.

18 Part 3AAB - Distinctive areas and landscapes was added to the Planning Act by the Planning and Environment Amendment (Distinctive Areas and Landscapes) Act 2018 (Vic), which took effect from 30 May 2018.

19 In his second reading speech for the Planning and Environment Amendment (Distinctive Areas and Landscapes) Bill 2017, the 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. 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. The Bill was said to strengthen existing planning controls and ensure that the significance of distinctive areas is elevated in state planning policy.[4]

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 distinctive areas and landscapes across Victoria to have access to 'the highest level of planning protection'.[5] The Minister explained that the amendments would introduce a mechanism similar to the urban growth boundary,[6] which provided a strategic limit to Melbourne's outward expansion. 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 distinctive areas and landscapes.[7]

(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 A 'declared area' is an area to which an order under s 46AO applies.[9] On the recommendation of the Minister for Planning, the Governor in Council may declare under s 46AO that an area is a distinctive area and landscape, by order published in the Government Gazette.[10]

23 Section 46AP sets out the requisite features of an area that the Minister may recommend be declared as a distinctive area or landscape:

Requirements for area to be declared as a distinctive area and landscape

(1) The Minister must be satisfied that an area has a majority of the following attributes in order to recommend that the area be declared as a distinctive area and landscape -

(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.

(2) The Minister must be satisfied that an area is under threat of significant or irreversible land use change that would affect the environmental, social or economic value of the area in order to recommend that the area be declared as a distinctive area and landscape, whether that threat arises from -

(a) land use conflicts; or

(b) multiple land use changes over time; or

(c) any other land use threat prescribed for the purposes of this section.

24 Section 46AT requires the Minister to prepare a statement of planning policy for a declared area, which is to be endorsed within a prescribed timeframe:

Minister to develop Statement of Planning Policy for declared area

(1) The Minister must prepare a Statement of Planning Policy for a declared area.

(2) The declaration of the declared area lapses if the Statement of Planning Policy is not endorsed in accordance with section 46AX and approved in accordance with section 46AY within -

(a) one year after the declaration of the area under section 46AO takes effect; or

(b) a period approved by the Governor in Council under subsection (3).

(3) Before the end of the period specified in subsection (2)(a), the Governor in Council, by order published in the Government Gazette, may approve a period not exceeding 2 years after the declaration of the area under section 46AO takes effect for the preparation, endorsement and approval of the Statement of Planning Policy for the declared area

25 A statement of planning policy 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 the distinctive attributes of the declared area'.[11]

26 Section 46AV prescribes the content of a statement of planning policy, which must include the following:

(1) The Statement of Planning Policy for a declared area 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 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.

(2) The declared area framework plan must provide a framework for decision-making in relation to the future use and development of land in the declared area that -

(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 When preparing a statement of planning policy for a declared area, the Minister has certain consultation obligations provided under s 46AW:

Consultation

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 that the Minister considers may be affected by the Statement of Planning Policy.

28 The Planning Act adopts the definition of a 'public entity' set out in s 5 of the Public Administration Act 2004 (Vic).[12] In Pt 3AAB, a 'responsible public entity' means, in relation to a declared area:[13]

(i) the Secretary (within the meaning of the Conservation, Forests and Lands Act 1987);

(ii) the water corporation responsible for the area in which the declared area is located;

(iii) a municipal council whose municipal district contains land in the declared area;

(iv) Parks Victoria established under Part 2 of the Parks Victoria Act 1998;

(v) the Victorian Planning Authority established under Part 2 of the Victorian Planning Authority Act 2017;

(vi) a Catchment Management Authority under the Catchment and Land Protection Act 1994 for a catchment and land protection region that contains land in the declared area;

(vii) the Head, Transport for Victoria within the meaning of the Transport Integration Act 2010;

(viii) Victorian Rail Track continued under section 116 of the Transport Integration Act 2010;

(ix) any committee of management or trustees under the Crown Land (Reserves) Act 1978 in relation to land in the declared area;

(x) any Traditional Owner Land Management Board established under Part 8A of the Conservation, Forests and Lands Act 1987 in relation to land in the declared area;

(xi) any other public entity prescribed to be a responsible public entity in relation to the declared area;

29 Section 46AX provides for the endorsement of a statement of planning policy by relevant responsible public entities. At the relevant times, s 46AX was in the following terms:[14]

Endorsement of Statement of Planning Policy

(1) The Minister must give a copy of the draft Statement of Planning Policy to each responsible public entity specified in the Statement for endorsement by the entity and the Minister responsible for that entity.

(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 Statement of Planning Policy.

30 Once a statement of planning policy has been endorsed in accordance with s 46AX, it may be approved by the Governor in Council under s 46AY(1), and the Minister must then publish notice of the approval in the Government Gazette.[15] The statement of planning policy takes effect on the day the notice of approval is published, or on a later day specified in the notice.[16]

31 From the time a statement of planning policy takes effect, it is taken to form part of the State standard provisions of the Victorian Planning Provisions.[17] In addition, the Minister must prepare a planning scheme amendment to give effect to the statement of planning policy.[18] Section 46AZC prohibits any amendment to a declared area planning scheme that is inconsistent with the statement of planning policy for the declared area.

32 Part 3AAB allows for the application of protected settlement boundaries to a declared area, which delineates the boundary for urban development in areas protected under a statement of planning policy. A protected settlement boundary is applied through a planning scheme amendment, but unlike other planning scheme amendments a protected settlement boundary does not take effect unless it is ratified by Parliament.[19]

33 Division 5 of Pt 3AAB sets out the duties of responsible public entities in relation to a declared area. The first of these duties is provided by s 46AZK:

Responsible public entities not to act inconsistently with Statement of Planning Policy

A responsible public entity must not act inconsistently with any provision of the Statement of Planning Policy 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.

34 A responsible public entity should also abide by the principles set out in s 46AZL:

Principles

If a responsible public entity develops or implements policies or programs or makes decisions in relation to a declared area, the responsible public entity should -

(a) consult with all levels of government and government agencies that are relevant to the decision; and

(b) use best practice measures to protect and conserve the unique features and special characteristics of the declared area; and

(c) undertake continuous improvement to enhance the conservation of the environment in declared areas; and

(d) have regard to the principles prescribed to apply -

(i) to all declared areas; and

(ii) in relation to a particular declared area.

35 Once a statement of planning policy has been approved, it may be amended as provided in s 46AZA. The Minister must review the statement of planning policy within 10 years.[20]

36 On 19 September 2019, the Governor in Council declared the Surf Coast to be a distinctive area and landscape under s 46AO(1) of the Planning Act (declaration).[21] As provided by s 46AO(2)(d)(i), the preamble to the declaration set out the significance of the area to the people of Victoria:[22]

(a) The Surf Coast has natural landscapes of outstanding beauty and environmental, economic and cultural heritage values of state and national significance.

(b) Its diverse natural environment and impressive landforms, combined with visible layers of history, underscore its special significance to the people of Victoria and its important role in our social, cultural and economic development.

(c) There are a number of nationally and state significant areas of biodiversity including the Point Addis Marine National Park, Point Danger Marine Sanctuary, Point Impossible, The Breamlea/Karaaf wetlands and associated estuaries. These areas provide important habitats to a variety of flora and fauna including endangered and threatened species like the Hooded Plover, Bellarine Yellow Gum and the critically endangered Orange-Bellied Parrot.

(d) The Great Ocean Road, which begins in Torquay, is registered on the National Heritage list. The Road is a highly important destination for local and overseas visitors. The history and construction of the road was important for the development of the state and opening the region to tourism.

(e) There are many high-quality surfing beaches within the area, including Bells Beach, which hosts international surfing events. The Surf Coast is synonymous with surfing, is an important aspect of the development of the area as a holiday destination and forms part of the cultural identity of the Surf Coast.

37 The declaration also contained a statement of the significance of the Wadawurrung Country and the area to its traditional owners, in both traditional language and English. The English version of the statement read:[23]

We deeply respect our people of the past. Elders, children, men, women. We deeply respect their knowledge of country, water, life, their care of the traditions and of each other, we stand with their spirit.

Great spirit Bundjil told us to take care of the great life within the land. To only take what you need without selfishness.

Wadawurrung shared their knowledge of singing, dance, trade, camps, fishing, hunting, paintings, and homes to us to protect for our future generations.

We all need to help.

Our Wadawurrung family group lived within Barwon River and Bass Strait, with a large land of forested areas and wonderful banks of the ocean, near many water bodies.

Life in the Modewarre gave Musk duck and Bream. Life in the Anglesea gave mullet Wurdiboluk, Gherang, Barwon River all provide ideal life to birds and fish, eels. Reeds turned into our baskets.

Life in the forest gave resources like food and lots of tools to use for trade, building, journey.

If there was lots to trade, we would share with our families and celebrate.

We would name our country, by what we could see.

Our country is remembered by Wadawurrung, our proud spirit walks to tomorrow to teach others the care of our earth.

38 Table 1 of the declaration summarised the attributes qualifying the declared area as a distinctive area and landscape, in accordance with s 46AO(2)(b) of the Planning Act. The declaration also identified the threats of significant or irreversible land use change that would affect the environmental, social or economic values of the declared area:[24]

(a) Threats to areas of significant biodiversity from land clearing and loss of habitat, urban development pressures including water run-off, human interference increased through tourism and introduced weeds and pests, climate change impacts and natural hazards such as change in water temperatures, sea level rise, storm surges and bushfire;

(b) Threats to natural landscapes and landforms from urban development expansion, increased visitation pressures, climate change impacts including sea level rise and change in storm patterns expected to increase risk of erosion;

(c) Threats to preservation of heritage and cultural attributes from township expansion, land use practices and increased tourism activity and recreation;

(d) Threats to natural resources and productive land from land use conflicts between conservation, 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 due to increasing pressure from urban growth, tourism activity and cumulative urban development.

39 The Surf Coast declared area lies south of Geelong, and includes the coastline between Breamlea and Point Addis. The main settlement is Torquay-Jan Juc, with smaller settlements at Breamlea, Bellbrae, Mount Duneed, and Connewarre. A map of the declared area is at Figure 3 below.

Figure 3: Surf Coast declared area, from Surf Coast Statement of Planning Policy, 8, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.

40 The location of the Surf Coast declared area relative to Melbourne, Geelong, and Ballarat is shown in Figure 4 below.

Figure 4: Surf Coast declared area, from Surf Coast Statement of Planning Policy, 8, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.

41 On 10 September 2020, the Governor in Council extended the period for the preparation, endorsement and approval of the Surf Coast SPP to 19 September 2021.[25]

42 On 16 September 2021, the Governor in Council made a second declaration of the Surf Coast as a distinctive area and landscape.[26] The second declaration took effect on 20 September 2021.

43 Following the declaration of the Surf Coast declared area, on 28 June 2020 the Minister appointed a Standing Advisory Committee under s 151 of the Planning Act to provide advice on statements of planning policy for the Surf Coast and other declared areas. On 8 November 2020, the Minister referred a draft statement of planning policy for the Surf Coast declared area (draft SPP) to the Committee.

44 The draft SPP identified two options for the Spring Creek area. Option 1 involved a protected settlement boundary for Torquay-Jan Juc that included the Spring Creek area for low density, ecologically sustainable development. Option 2 placed the Spring Creek area outside the protected settlement boundary along Duffields Road in Jan Juc. The draft SPP did not include an option for conventional residential development in the Spring Creek area, as contemplated by Amendment C114.

45 On 25 June 2021, the Committee provided its report on the draft SPP to the Minister. The Committee did not recommend the adoption of either Option 1 or Option 2 in respect of the Spring Creek area. Rather, it recommended that the protected settlement boundary be moved from Duffields Road to the western edge of the Spring Creek area to enable the Spring Creek area to be available for conventional residential development, and that the Spring Creek PSP be reviewed and resolved within a six month timeframe. The Committee explained its reasons for that advice:[27]

The Committee recognises Torquay-Jan Juc and its surrounds is a special place that deserves recognition and, where appropriate, protection from inappropriate development. But Torquay-Jan Juc does not just belong to those residents who are fortunate enough to already live there. It should not be excluded from future urban development where it can be demonstrated that such development would provide opportunities for economic and housing growth without compromising the identified attributes of the declared area. Planning is charged with providing for economic and housing growth, and with providing more diverse residential opportunities. This includes consolidation of already developed areas and allowing for diverse and affordable housing in a range of locations and opening new areas where appropriate.

All Victorian councils (metropolitan and regional) have an obligation to provide for growth. Planning for growth must be undertaken in an orderly manner and must have regard to the interests of existing and future generations. In the Surf Coast Shire, Torquay-Jan Juc is clearly the main urban centre. It is recognised in policy as a 'District Town' and is a popular place to live, due to its outstanding environmental and landscape assets.

This does not mean that growth can occur in any location and be unrestrained. The draft SPP provides for protected settlement boundaries and one of the Committee's roles is to provide advice to the Minister for Planning on where those boundaries should be.

The Committee considers it unfortunate that the long history of past planning processes and decisions for the Spring Creek area was revisited in the draft SPP. This process has opened old wounds and introduced new ones. The recent planning processes were extensive and, in the view of the Committee, both rigorous and comprehensive. The Committee is aware that some submitters disagree with the planning controls that emerged from those processes, but it is equally aware there are landowners and other submitters that not only support those controls, but have acted on the basis of a reasonable expectation that they would not be replaced with fundamentally different controls that restrict urban development opportunities.

46 The Minister took some time to consider the Committee's report and recommendations before making the Finalisation Decision on 3 April 2022. Contrary to the Committee's advice, the final draft of the Surf Coast SPP approved by the Minister placed the Spring Creek area outside the protected settlement boundary along Duffields Road. In his written Reasons, the Minister explained why he had reached a different conclusion from the Committee in relation to the Spring Creek area.

47 After setting out the statutory context and factual background, the Minister turned to the Committee's advice regarding the settlement boundary at Spring Creek, and its recommendation that the Spring Creek area be available for conventional residential development. He said that he had carefully considered the Committee's advice and had given the matter independent thought. The Minister continued:

1. In the case of the location of the settlement boundaries of Spring Creek, I have respectfully disagreed with the advice provided by the Advisory Committee, and have concluded that the best course, taking all matters into account, is to exclude this area of landscape significance from the possibility of conventional residential subdivision by placing it outside the settlement boundaries for Torquay - Jan Juc.
2. In my opinion, the Advisory Committee gave too much weight to historical planning decisions and insufficient weight to the landscape, cultural and environmental character of the Spring Creek area west of Duffields Road. The planning history reveals considerable interest in development of the area west of Duffields road from landowners and speculators. This is borne out by the planning history and by the arguments advanced to the Committee. I am of the opinion that considerable weight should be given to the future pressure for development in this area, as well as to the consequences of development contemplated by historical planning decisions. Allowing conventional residential development west of Duffields Road would create an ephemeral settlement boundary along what would be a less substantial road than Duffields Road, which would inevitably come under pressure in an area of significant landscape value. In my opinion, Duffields Road presents as a tangible settlement boundary, and in light of the importance of the land to the west, should be used to delineate the township boundary. I consider this would represent a more orderly, long term planning outcome for this area.

48 The Minister then provided a detailed explanation for the conclusion he had reached. It is useful to set out that explanation in full.

1. Section 4 of the finalised Surf Coast SPP contains a declared area framework plan, as required by section 46AV of the PE Act.[28] A declared area framework plan may include settlement boundaries and may designate any or all of those settlement boundaries as a protected settlement boundary. A protected settlement boundary is afforded a greater level of protection under the PE Act, because once a protected settlement boundary is designated, any amendment to that boundary in a planning scheme must be ratified by Parliament in accordance with section 46AZE of the PE Act. I have relevantly determined to include a protected settlement boundary for Torquay-Jan Juc.
2. A matter of substantial public interest in the preparation of the Surf Coast SPP has been the treatment of the land currently in the Urban Growth Zone Part A in the Spring Creek valley (Spring Creek). In finalising my preparation of the Surf Coast SPP, I have determined to exclude Spring Creek from the protected settlement boundary for Torquay - Jan Juc and set Duffields Road as the protected settlement boundary. This is shown in the declared area framework plan at map 3 and at map 10. Map 10 shows the area included in the 'green break' between Torquay - Jan Juc and Bellbrae.
3. A detailed history of the planning with respect to Spring Creek is set out in the Advisory Committee report. Of particular relevance to my reasons is the following:
   1. the greenfield area was included in the Urban Growth Zone Part A in 2014;
   2. a Precinct Structure Plan that would enable conventional residential development on the land was prepared by Surf Coast Shire with assistance from Victorian Planning Authority as part of Amendment C114surf to the Surf Coast Planning Scheme; and
   3. following the declaration of Surf Coast as a distinctive area and landscape, I placed the determination of Amendment C114surf on hold pending the outcome of the SPP process.
4. The version of the draft SPP that I referred to the Advisory Committee, informed by Phase 2 consultation as outlined above, contained two options with respect to future land use in Spring Creek.
   1. Option 1: low density ecological sustainable development with the current settlement boundary retained. This option identified the need to revise the Spring Creek Precinct Structure Plan proposed in Amendment C114surf to provide for lower residential densities, larger lot sizes and vegetated buffers.
   2. Option 2: a 'green break area' whereby Spring Creek would form part of the surrounding green break between Torquay-Jan Juc and Bellbrae. The proposed protected settlement boundary would be applied at Duffields Road and the area between Duffields Road and Bellbrae would be rural land.
5. Either option would significantly change the residential development opportunities indicated by the rezoning of the land in 2014 to Urban Growth Zone Part A, and what was advanced in the proposed Spring Creek Precinct Structure Plan forming part of Amendment C114surf.
6. The Advisory Committee recommended against the two options referred to it, and instead relevantly recommended:

Spring Creek: the area already in the Urban Growth Zone should be included in the protected settlement boundary and be permitted to develop, subject to a further limited review of the Council adopted Precinct Structure Plan and Native Vegetation Precinct Plan. All other land in the Spring Creek Valley should be located outside the protected settlement boundary and then be reviewed as part of the 10 year strategic review of the [declared] area...

1. I thank the Advisory Committee for its extensive work, and its advice with respect to the draft SPP. The Advisory Committee's report has been of great utility in exploring the issues, and the competing considerations.

2. My determination departs from the recommendation of the Advisory Committee because, in balancing the competing considerations, I have distributed weight to factors differently. I have given less weight to the history of planning decisions which predate the commencement of Part 3AAB of the PE Act and the declaration of this area as a distinctive landscape. While I have little doubt that those planning processes were robust, and considered all things relevant at that time, the introduction of this legislative framework and the declaration of this area is a matter which was intended to and which did alter the settings in which those historical planning decisions were made. In my assessment, I have also given significant weight to:

   1. the protection and conservation of landscape values in the declared area;
   2. community sentiment around township character and the future of their community; and

3. In my second reading speech to Parliament for the bill proposing to introduce the new Distinctive Areas and Landscapes regime, I outlined how government intended for the regime to operate, and how government proposed to use it:

...The bill strengthens existing planning controls and ensures that the significance of these distinctive areas is elevated in state policy.

...The bill, as proposed, will allow the government to better recognise those iconic, distinctive landscapes that communities value, creating a legacy for future generations of Victorians.

1. Surf Coast has been declared a distinctive area and landscape, enabling better protection of landscape values through the regime in Part 3AAB of the PE Act. In accordance with my second reading speech, I consider the importance of recognising and protecting distinctive attributes to be elevated for declared areas, and I have exercised my powers under the regime with that in mind.
2. As part of the broader Torquay Coast, Coastal Saltmarshes and Woodland landscape of State significance, the landscape of the Spring Creek valley is significant, distinct, and valuable, and substantial weight should be given to protecting these attributes when determining settlement boundaries within declared areas. The application of the protected settlement boundary will ensure that the landscape significance of the remaining undeveloped land in the Spring Creek valley acts as a substantive green break and is fully preserved. The broad landscape of the Spring Creek valley is a landscape of state significance, and it is artificial to divorce that part of the Spring Creek valley zoned Urban Growth Zone Part A from the broader landscape. However, even if considered in isolation to the surrounding landscape, I remain of the view that the Spring Creek land presents as a significant distinctive landscape and that substantial weight should be given to protecting this attribute when determining settlement boundaries within the declared area.
3. The Advisory Committee took the view that it was unfortunate to revisit the planning history of Spring Creek, given the strategic planning carried out with respect to the area over several years, and the rezoning in 2014. In my view, it is not unreasonably disruptive to the orderly planning of the declared area to excise the land from the settlement boundary now. At present the land in question lies within a township boundary set in 2014, long before the enactment of the distinctive landscape regime. The current planning controls do not permit development to occur, and no development has occurred. The future development of this area has been known to be under review since 2018.
4. I accept that my conclusions may have an impact, financially and in other respects, on some of the landowners of Spring Creek, in that what may have seemed an increased potential for future development in 2014 will in due course be removed if the finalised Surf Coast SPP is approved by the Governor-in-Council. If that occurs, the approval of Amendment C114surf will be prohibited by section 46AZC of the PE Act. The zoning of Spring Creek will also need to be considered at an appropriate time for consistency with the finalised Surf Coast SPP. Despite these impacts on some private landowners west of Duffields Road, it is incumbent on me to prepare the Surf Coast SPP in accordance with the PE Act, including by having regard to the purpose and objectives of the PE Act set out in sections 1 and 4 of that Act.
5. In addition to considering the financial and other impacts on landowners who had hoped to develop this land, I am required to consider the views of the local community. While the views of the community were not uniform - indeed a number of parties advocated for or were open to conventional or low-density residential development at Spring Creek - there was strong support in the community consultation for the protected settlement boundary to be set at Duffields Road. Of the 3,163 submissions that were received during public consultation, 94% related to Spring Creek with 73% of submitters expressing support for the protected settlement boundary to excise Spring Creek. These submissions related primarily to landscape and environmental protection, and loss of township character. It is clear that the community strongly value these attributes of the declared area and that substantial weight should be given to protecting these attributes when determining settlement boundaries within declared areas. The Surf Coast Shire Council () also supported the protected settlement boundary being set at Duffields Road. I have given these matters considerable weight in reaching my conclusions.

49 The plaintiffs' first four grounds of review challenge the validity of the Finalisation Decision.

Ground 1 - Did the Minister consult as required by s 46AW?

50 The plaintiffs' first ground of review concerns the consultation obligation in s 46AW of the Planning Act.[29] The plaintiffs contend that the Finalisation Decision is affected by jurisdictional error because the Minister failed to consult with each responsible entity for the area, the local community, and any other person that the Minister considers may be affected by the Surf Coast SPP while preparing the Surf Coast SPP, as the Minister was required to do under s 46AW.

51 The plaintiffs first submitted that a failure to comply with the consultation obligation would render the Finalisation Decision invalid. Based on Project Blue Sky Inc v Australian Broadcasting Authority,[30] they identified the following indicators that the legislature intended that a breach of a procedural requirement would result in invalidity:[31]

(a) First, whether the statutory requirements regulated the exercise of functions already conferred or was an 'essential preliminary' to the exercise of a function.

(b) Second, the nature of the statutory requirement and in particular whether it had a 'rule-like quality' that could be easily identified and applied.

(c) Third, the public inconvenience that would result if non-compliance meant that a decision was legally ineffective.

52 By reference to the Full Court of the Federal Court's application of those indicators to the obligation to consult considered in Kutlu v Director of Professional Services Review,[32] the plaintiffs argued that I should conclude that non-compliance with the consultation obligation renders the Surf Coast SPP invalid. They drew attention to the following matters:

(a) First, they said that the use of mandatory language in s 46AW, specifically the requirement that the Minister 'must consult', suggests that the consultation obligation is an essential precondition to the exercise of the power to prepare a statement of planning policy.

(b) Second, the plaintiffs submitted that s 46AW has a 'rule-like quality' that is easily identified and applied. Although s 46AW does not prescribe how the consultation obligation is to be discharged, 'consultation' is a term that carries with it a 'responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account'.[33]

(c) Third, they characterised the consultation obligation as a key aspect of the scheme provided for in Pt 3AAB of the Planning Act. They pointed out that a planning scheme amendment prepared by the Minister to give effect to a statement of planning policy is exempt from the public exhibition and submission procedure that applies to most planning scheme amendments.[34] They said that the consultation carried out under s 46AW is a proxy for the consultation that would otherwise be required by Divs 1 and 2 of Pt 3 of the Planning Act for a planning scheme amendment.

(d) Fourth, the plaintiffs relied on the significant consequences of an approved statement of planning policy, especially where it includes a protected settlement boundary. They said that the consultation obligation is an important check on the Minister's power under Pt 3AAB.

(e) Fifth, they pointed out that Pt 3AAB does not include a provision to the effect that a failure to consult in accordance with s 46AW does not result in invalidity. They contrasted this with the saving provision in s 39(7), which provides that a planning scheme amendment that has been approved is not made invalid by any failure to comply with Divs 1, 2, or 3 of Pt 3, or Pt 8 of the Planning Act.[35]

53 The plaintiffs argued that the Minister had failed to consult as required by s 46AW in two separate ways.

54 The first contended failure arose from the fact that two declarations were made under s 46AO in relation to the Surf Coast declared area. The first declaration was made on 19 September 2019, and in September 2020 the Governor in Council extended the time for preparing, endorsing and approving the Surf Coast SPP to 19 September 2021. The second declaration was made on 16 September 2021, with effect from 20 September 2021. The plaintiffs referred to evidence of extensive consultation that had taken place while the first declaration was in force, including community and stakeholder engagement between May and November 2019, receipt of written submissions between November 2020 and January 2021, and the public hearings before the Committee in March and April 2021 preceding its report in June 2021. However, no consultation at all was conducted in the period following the second declaration.

55 The plaintiffs submitted that it was not open to the Minister to rely on the earlier consultation to discharge the consultation obligation in respect of the second declaration. They argued that Parliament clearly intended time to be of the essence when it prescribed a maximum two year timeframe for the preparation, endorsement and approval of a statement of planning policy under Pt 3AAB. They said that this timeframe could not be circumvented by simply 're-declaring' a declared area to provide an extra year or two for the process to be completed.

56 In the plaintiffs' submission, the effect of the second declaration was to start the process afresh, so that the Minister was required to recommence the process of developing and consulting on a statement of planning policy. They said that it was not open to the Minister to rely on the consultation undertaken while the first declaration was in force. In support of this argument, the plaintiffs referred to the transitional provision in s 46AZM, which expressly provides that consultation conducted by the Minister before the commencement of Pt 3AAB in relation to the Macedon Ranges Localised Planning Statement is taken to satisfy s 46AW for the purposes of a statement of planning policy for the Macedon Ranges area.

57 The second contended failure arose from the Minister's attempt to confine the Committee's consideration of the protected settlement boundary for Torquay-Jan Juc to the two options described at [44] above. The plaintiffs argued that the Minister's consultation was flawed because he did not consult in relation to what they described as a 'third option' of a protected settlement boundary for Torquay-Jan Juc that included the Spring Creek area.

58 Accepting the flexibility of the consultation obligation,[36] the plaintiffs nevertheless submitted that the nature and circumstances of this case were such that the Minister was obliged to consult in relation to the third option. They relied in particular on the planning scheme amendment process for Amendment C114, which was well advanced by the time the first declaration took effect. The plaintiffs argued that the Minister's failure to consult about the third option denied them and other parties identified in s 46AW a meaningful opportunity to present their views on that option.

59 The plaintiffs referred to R (Moseley) v London Borough of Haringey,[37] a decision of the United Kingdom Supreme Court concerning the ingredients of a local council's statutory obligation to consult 'such other persons as it considers are likely to have an interest' in the operation of a proposed new tax relief scheme.[38] Lord Reed held that meaningful public participation in that case required that consultees should be provided not only with information about the draft scheme, but also an outline of the realistic alternatives, and the reasons for the council's preferred choice.[39] The plaintiffs submitted that meaningful consultation in this case required the Minister to provide information about the third option, as well as the first and second options, in order for interested parties to make an intelligent response.

60 The Minister submitted that there was no requirement to re-consult following the second declaration, nor to consult specifically in relation to the plaintiffs' third option. In addition, she argued that any failure to consult would not result in invalidity of the Surf Coast SPP.

61 In relation to the timing of consultation, the Minister emphasised that s 46AW requires consultation when preparing a statement of planning policy, and not following the declaration of an area under s 46AO. She submitted that the text of s 46AW does not support the proposition that consultation must start afresh upon the re-declaration of an area under s 46AO, notwithstanding that there is no material change to the terms of the declaration or the contents of the draft SPP. The Minister argued that the requirement to consult attaches to the preparation of a statement of planning policy, and not to the declaration of an area as a distinctive area and landscape. She said that the time periods specified in s 46AT provide no basis for reading s 46AW to require the consultation process be undertaken afresh when an area is re-declared under s 46AO. In other words, she said, the preparation of the statement of planning policy can take place at any time.

62 The Minister pointed out that there is no restriction in Pt 3AAB on making successive declarations under s 46AO in relation to the same area. In this case, the 'declared area' was the same under both the first declaration and the second declaration.

63 In the Minister's submission, the construction of s 46AW advanced by the plaintiffs was not consistent with its text, and would result in significant practical inconvenience. Whether consultation undertaken before a declaration is made under s 46AO would satisfy s 46AW would always be a question of fact. She accepted that consultation that had taken place decades earlier would be unlikely to meet the requirements of s 46AW. But where there is continuity in consultation and no significant gap in time or material change in circumstances, the Minister argued that there was no reason why the Planning Act should be construed to require extensive consultation be redone. The inconvenience of that outcome was, the Minister said, a significant factor against the plaintiffs' construction of s 46AW. She characterised her preferred interpretation as one that encouraged comprehensive and thorough consultation, as distinct from a condensed consultation with an eye on the timeframe.

64 The Minister refuted the suggestion that the consultation obligation operates as a proxy for the consultation required for a planning scheme amendment under Divs 1 and 2 of Pt 3 of the Planning Act. She submitted that s 46AW imposes a different, separate, and less prescriptive consultation requirement, with the evident purpose of permitting the Minister to proceed in a different way.

65 The Minister said that the transitional provision in s 46AZM did no more than preserve consultation conducted by the Minister in relation to the Macedon Ranges Localised Planning Statement before the commencement of Pt 3AAB. She contrasted that situation with the preparation of the Surf Coast SPP, which had not commenced before Pt 3AAB was added to the Planning Act. Accordingly, the Minister submitted, the transitional provision did not bear on the proper construction of s 46AW.

66 In response to the plaintiffs' second argument about consultation, the Minister submitted that s 46AW did not require specific consultation about the third option for the location of the settlement boundary. She said that the consultation required by s 46AW must relate specifically to the statement of planning policy being prepared by the Minister; otherwise, it does not require the Minister to consult in relation to any specific matters. The breadth of the consultation obligation affords the Minister discretion as to the specific matters about which feedback may be sought.

67 In any event, said the Minister, it is clear that consultation did take place about issues raised by the draft SPP, including in relation to options available for the Spring Creek area beyond Options 1 and 2. The Minister pointed to evidence that her predecessor received submissions that Spring Creek should be allowed to develop in accordance with the Spring Creek PSP, that submissions were made to and received by the Committee on that subject, and that the Committee's report and recommendations endorsed the Spring Creek PSP.

68 In those circumstances, the Minister submitted, it could not be accepted either that the Minister was obliged to consult in relation to a third option, or that he failed to do so.

69 The Minister sought to distinguish Moseley from this case, on the basis that it was a case in which people affected by the proposed scheme were not made aware of the rejected alternative options, which would have enabled them to make an intelligent response in respect of the Council's preferred alternative. She contrasted that situation with this case, in which the plaintiffs were well aware that there was an alternative to Options 1 and 2 in the draft SPP, and were able to press their case for a third option with expert evidence, legal submissions, and advocacy before the Committee. The plaintiffs were able to make an intelligent response to the draft SPP without an explicit invitation to provide views about the third option.

70 Further, the Minister argued that a failure to comply with s 46AW would not have resulted in invalidity of the Finalisation Decision or the Surf Coast SPP. She submitted that this case was readily distinguishable from Kutlu, in which the statute required the Minister to consult with the Australian Medical Association before making certain appointments, and to have regard to its advice before exercising the power of appointment. Although s 46AW uses mandatory language, the Minister said that the broad nature of the consultation obligation and the text, context and purpose of the provision indicated that it did not have the requisite 'rule-like quality'. The Minister also relied on the significant inconvenience that would result from a finding of invalidity, in this case due to the extensive consultation that had taken place regarding the Surf Coast SPP.[40]

71 Finally in relation to this ground, the Minister submitted that any failure to consult was not sufficiently material to give rise to jurisdictional error.[41]

72 I am not satisfied that there was any failure by the Minister to consult in accordance with s 46AW of the Planning Act when preparing the Surf Coast SPP. In summary:

(a) The consultation that took place before the second declaration took effect on 20 September 2021 was consultation undertaken 'when preparing' the Surf Coast SPP for the Surf Coast declared area;

(b) Section 46AW did not oblige the Minister to consult in relation to the third option for the Spring Creek area;

(c) Even if it had, the fact that the Minister did not seek views about the third option did not deny anyone - least of all the plaintiffs - a meaningful opportunity to make an intelligent response about the placement of the protected settlement boundary for Torquay-Jan Juc.

73 I elaborate on these conclusions in the following paragraphs.

74 In light of my conclusions, it is not necessary to determine whether a failure to comply with s 46AW would have resulted in the invalidity of the Surf Coast SPP, and the question of materiality does not arise.

The consultation took place 'when preparing' the Surf Coast SPP

75 Section 46AW requires the Minister to consult three categories of persons 'when preparing a Statement of Planning Policy for a declared area'. The only temporal requirement in the provision is that the consultation take place when the Minister is preparing the statement of planning policy for the relevant declared area. The text of the provision does not indicate that the consultation must take place while a declaration under s 46AO is in effect.

76 The plaintiffs' argument had an implicit premise that there was something untoward about the second declaration being made on the expiry of the maximum two year period prescribed in s 46AT(3) for the preparation, endorsement and approval of the Surf Coast SPP. I cannot discern a textual basis in Pt 3AAB for that premise. There is no limitation in Div 2 of Pt 3AAB on a second or subsequent declaration under s 46AO in respect of the same geographic area. The effect of the timeframe prescribed in s 46AT is that the period in which a statement of planning policy may be approved for a declared area will lapse after two years. It is open to the government of the day to continue the policy process by making a further declaration in respect of the area, as is permitted by s 46AO. In other words, there must be ongoing political support for the development of the statement of planning policy if the process is to continue beyond two years. That does not carry with it a requirement to recommence consultation about the statement of planning policy if and when a further declaration is made in relation to the same declared area.

77 The interpretation of s 46AW advanced by the plaintiffs has no obvious policy rationale and, at least in this case, would result in pointless repetition of the extensive consultation that had taken place before 19 September 2021. It is impossible to prefer an interpretation with such wasteful and inefficient consequences, in the absence of clear words in Pt 3AAB to support it.

78 I accept the Minister's submission that it will be a question of fact in each case whether prior consultation took place 'when preparing' the relevant statement of planning policy. Consultation that took place many years earlier, or in relation to a different geographic area, or in materially different circumstances may well not satisfy s 46AW. However, in this case, the consultation that took place before September 2021, culminating in the public hearings held by the Committee and its report to the Minister in June 2021, plainly did satisfy s 46AW. The draft SPP published in November 2020 was the focus of the consultation process, and the Committee's consideration and report, and was the basis for the Surf Coast SPP that was ultimately approved by the Governor in Council in October 2022.

79 I also accept the Minister's submission that the transitional provision in s 46AZM does not affect the meaning of 'when preparing' in s 46AW. Section 46AZM is directed to preserving consultation that took place before the enactment of Pt 3AAB, in relation to a separate policy development process for the Macedon Ranges, under the pre-existing provisions of the Planning Act. It provides no indication as to whether consultation that took place under a lapsed declaration meets the requirements of s 46AW when a further declaration is made in relation to the same area.

The consultation encompassed the 'third option' for the Spring Creek area

80 While s 46AW obliges the Minister to consult when preparing a statement of planning policy for a declared area,[42] with the entities, groups and persons specified in sub-ss (a)-(c), it provides great flexibility as to how the consultation is to take place. The meaning of 'consult' in s 46AW is a matter of statutory interpretation, and is not resolved by importing the meaning given to that word in other statutory contexts or by the common law.[43]

81 Like the statutory duty to consult considered in Moseley, the consultation obligation in s 46AW should be construed by reference to its purpose.[44] That purpose is not spelled out in Pt 3AAB, but appears to include that responsible public entities, the local community, and other persons who may be affected by the statement of planning policy are able to participate in its development, and that the Minister has the benefit of their input when preparing the policy. In order for that purpose to be achieved, the consultation should be genuine and should relate to the statement of planning policy that is being prepared by the Minister. A sham consultation process will not suffice. Beyond that, it is a matter for the Minister what form the consultation is to take.

82 There may be circumstances in which genuine consultation under s 46AW will require the Minister to identify alternatives that have been considered and rejected when preparing a draft statement of planning policy, in order that the persons being consulted can make an intelligent response. That is not this case.[45]

83 Here, the 'third option' was well developed and widely understood, as a result of planning processes and community debate going back to at least 2013. It was the subject of the Spring Creek PSP and Amendment C114, which was adopted by the Council in October 2017 but not approved by the Minister. In the draft SPP, the Minister indicated that he was considering two alternative options for the Spring Creek area. However, anyone who supported the approval of Amendment C114 was free to put that position during the consultation process for the draft SPP, which is what in fact occurred.

84 Unlike the applicants in Moseley, the plaintiffs were well resourced and well informed about the other alternatives. They were able to provide an intelligent response to the draft SPP, and did so in detailed written submissions to the Committee.[46] They supported their response with expert evidence, and engaged solicitors and senior and junior counsel to represent them before the Committee. Their advocacy was so persuasive that the Committee endorsed the plaintiffs' position over either of the Minister's preferred alternatives. There is no doubt that the Minister had the benefit of the plaintiffs' input on the future of the Spring Creek area when preparing the Surf Coast SPP and before making the Finalisation Decision.

85 For those reasons, the nature and circumstances of this case did not require the Minister to consult about his non-preferred third option for the Spring Creek area. I am satisfied on the evidence that the Minister engaged in a genuine process of consultation in relation to the draft SPP, in which the plaintiffs were meaningfully and effectively engaged.

Ground 2 - Was the Finalisation Decision legally unreasonable?

87 The plaintiffs' second ground challenged certain conclusions regarding housing supply expressed by the Minister in the Reasons.[47] The plaintiffs contended that these conclusions were findings that were material to the Finalisation Decision, and said that it was not open to the Minister to make these findings in circumstances where:[48]

9.1 the land supply and demand analysis relied upon by the Minister in making the Finalisation Decision assumes that the Spring Creek area would be developed for residential use;

9.2 the land supply and demand analysis relied upon by the Minister in making the Finalisation Decision did not take into account data in relation to housing supply in the Surf Coast shire in the period between March 2021 and the time of the Finalisation Decision;

9.3 the housing market in Torquay is substantially different to the housing market in Winchelsea and, in any event, the available supply of housing in Winchelsea is insufficient to ameliorate the impact of the Surf Coast SPP on housing supply in Torquay.

88 Accordingly, the plaintiffs argued, the Minister acted irrationally or unreasonably in making the Finalisation Decision.[49]

89 The plaintiffs accepted that legal unreasonableness is a high bar, and submitted that the following principles were relevant and not controversial:[50]

(a) The test of legal unreasonableness is stringent and context specific.

(b) The test of legal unreasonableness is a fact dependent exercise and involves a careful evaluation of the evidence.

(c) Where reasons are provided, they will be a focal point for that assessment.

(d) It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

(e) The court must not stray into merits review of a function invested in the decisionmaker.

90 The plaintiffs submitted that legal unreasonableness may be manifest in the reasoning process utilised by the decision-maker, where the decision lacks an evident and intelligible justification.[51] They accepted that where reasonable minds might differ about the conclusion to be drawn from the available evidence, a decision cannot be said to be legally unreasonable simply because one conclusion has been preferred to another. However, they argued that the Minister's findings in respect of the impact of the Surf Coast SPP on housing supply in Torquay were simply not available on the basis of the information before him.

91 In the plaintiffs' submission, the Minister made a number of findings in the Reasons relating to housing supply, which were material to his conclusion that the best course was to exclude the possibility of conventional residential subdivision in the Spring Creek area by placing it outside the settlement boundary for Torquay. The plaintiffs focused on the following statements in [47] of the Reasons:

(a) the settlement boundary imposed by the SPP 'will not compromise land supply in the township';

(b) land supply constraints 'would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape';

(c) 'Spring Creek is not essential to maintaining housing supply in the Surf Coast Shire for the next 10 years';

(d) pressure on infill development, 'which could impact on township character in a different way to expanded greenfield areas ... can be sensitively managed through planning controls and policy'; and

(e) the Council's 'strategic planning provides significant land supply in other parts of the municipality including Winchelsea'.

92 The plaintiffs contended that the material before the Minister was not reasonably capable of supporting these findings. That material included land supply and data analysis included in the Surf Coast Settlement Background Paper,[52] published in November 2020, and in the Victoria in Future population projections published in July 2019 (VIF19),[53] when it was anticipated that the Spring Creek area would be subdivided and developed for residential use. The Committee had reached different conclusions from the Minister, stating in its report that:[54]

If land already zoned for urban development in Torquay is removed, it will result in significant pressures in Central Torquay and for other areas to be opened up, including other smaller coastal settlements that are even, more environmentally constrained than Torquay.

...

Should Spring Creek not be developed, there could be severe impacts on housing diversity and affordability in and around Torquay-Jan Juc.

93 The plaintiffs sought to rely on two expert reports in support of this ground of review. They submitted that this evidence was admissible on the question of whether the Finalisation Decision lacked an intelligible foundation.[55]

94 The first was a report prepared by Justin Ganly, a land economist, dated 12 October 2022.[56] Mr Ganly had produced an earlier report dated 4 March 2021 for the consideration of the Committee, and his evidence informed the Committee's findings about housing supply in Torquay-Jan Juc.[57] In both reports, Mr Ganly pointed out that the analysis in the Background Paper assumed that the Spring Creek area would be developed, providing for an additional 1,940 dwellings. Making detailed reference to the Background Paper, the plaintiffs argued that the proposition that the Spring Creek area was not essential to maintain housing supply for the next ten years was unfounded, irrational, and legally unreasonable.

95 Further, Mr Ganly relied on population estimates released by the Australian Bureau of Statistics (ABS) on 29 March 2022, which he said showed a continuation of the extremely strong population growth observed in 2019 through to the following two years, and increases in average rates of population growth for Torquay and the balance of the Surf Coast.[58] Mr Ganly also drew on ABS data for residential building approvals published on 3 August 2021, which he said showed that the proportion of building approvals for the Surf Coast municipality located within Torquay had increased from 78% in 2016-20 to 80% in 2021, with 64% of Torquay's building approvals in the greenfield estates of Torquay North.[59]

96 The plaintiffs contended that it was unreasonable for the Minister to have relied solely on historical data from 2019 and 2020 in making the Finalisation Decision, when more recent data was available, and when that more recent data confirmed the continued and increased demand for housing supply in Torquay.

97 The second expert report on which the plaintiffs sought to rely was prepared by Robert Milner, a town planning expert, dated 24 October 2022.[60] Mr Milner opined that:

(a) Housing supply in Winchelsea is not 'like for like' with Torquay; while the infrastructure and opportunities to support growth are present in Winchelsea, it tends not to be the preferred location due to its inland setting and neighbourhood character.[61]

(b) Most land zoned for residential purposes in Winchelsea is in the low density residential zone, with almost no larger greenfield sites suitable for growth at conventional densities.[62]

(c) The lack of preparedness for significant housing growth in Winchelsea may in part be explained by the expectation that the Spring Creek area would absorb future growth for Torquay-Jan Juc.[63]

(d) The Council's current strategic planning work does not provide for significant land supply in either Winchelsea or across the Surf Coast.[64]

(e) It is improbable that the Council will realise its 15 year land supply policy obligations if the settlement boundary contemplated in the Surf Coast SPP is finalised.[65]

98 Based on Mr Milner's opinion, the plaintiffs submitted that the Minister's findings in relation to housing supply lacked an evident and intelligible basis, and were legally unreasonable.

99 The Minister responded that none of the matters identified by the plaintiffs were sufficient to establish that the Finalisation Decision was legally unreasonable or irrational, and that there was a logical and probative basis for the conclusions expressed by the Minister in the Reasons. She characterised the ground as an invitation to engage in impermissible merits review.

100 In relation to the applicable principles, the Minister emphasised the stringency of legal unreasonableness as a ground of review. She submitted that a finding of fact could only be legally unreasonable if there was no rationally probative evidence to support it.[66] The Minister argued that a distinction must be made between a finding of fact for which there is no evidential support, and a finding that is supported by some evidence, albeit slight or conflicting with other significant contrary evidence.[67]

101 The Minister argued that, properly understood, the Reasons contained the following findings at [47]:

(a) his conclusion about the settlement boundary would not compromise land supply in the township;

(b) in any event, land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape;

(c) land supply and demand analysis before the Minister suggested that the Spring Creek area was not essential to maintaining housing supply in the Surf Coast Shire for the next ten years;

(d) excluding the Spring Creek area from the settlement boundary would reduce greenfield housing supply, which might place pressure on infill development and could impact on township character, but this was able to be sensitively managed through planning controls and policy;

(e) the Council's strategic planning provided significant land supply in other parts of the municipality including Winchelsea, in circumstances where land supply requirements in the Surf Coast Planning Scheme apply on a municipal basis, as opposed to a town by town basis; and

(f) although a settlement boundary provides long term certainty, it is not immoveable should circumstances change.

102 The Minister objected to the admissibility of the expert reports of Mr Ganly and Mr Milner, on the basis that they post-dated the Finalisation Decision and did not form part of the material before the Minister at the relevant time. She said that neither report was capable of showing that there was no intelligible foundation for the Finalisation Decision, and so the reports were not admissible on that basis.

103 In response to the plaintiffs' contentions on this ground, the Minister made four arguments.

104 First, she submitted that the plaintiffs had adopted an unduly narrow approach to characterising the findings expressed in the Reasons. The Minister said that the ultimate finding was that the land supply and demand analysis including in the Background Paper and VIF19 'suggest' that Spring Creek is not essential to maintaining housing supply. Further, this was only one strand of the Minister's reasoning, which was supported by other strands which were not challenged. As such, the Minister's broad finding was based on a number of considerations that provided an evident and intelligible basis for that finding.

105 Second, the Minister said that it was permissible to prefer some evidence or reasoning over other evidence, and that such a preference fell well short of demonstrating that the findings were unreasonable. The Minister was not required to accept Mr Ganly's evidence or opinion to the Committee, when the Background Paper, VIF19, and the Minister's views about the Council's strategic planning provided a sufficient basis for the findings about land supply. In oral argument, the Minister made detailed reference to the Background Paper to show that it supported the conclusion that the Spring Creek area was not essential to maintaining housing supply in the Surf Coast Shire for the next ten years, even with the removal of 1,940 new dwellings that had been anticipated in the Spring Creek area.

106 Third, the Minister was not obliged to have considered or acted upon updated population projections, which were not before the Minister when making the Finalisation Decision. Further, the updated population projections did not bear on the other strands of reasoning that supported the impugned findings.

107 Fourth, the Minister said that the argument based on Mr Milner's opinion set up a false binary comparison between Torquay and Winchelsea, which was not adopted by the Minister. Rather, the Minister's reasoning focused on the wider Surf Coast municipality, of which Winchelsea was but one part. The Reasons did not contain a finding that constraints on housing supply in Torquay could be ameliorated by the provision of housing in Winchelsea, or that the housing market in Torquay was relevantly similar to that in Winchelsea. Accordingly, the Minister submitted, it was unnecessary to demonstrate a basis for any such finding.

108 I have had regard to the expert reports of Mr Ganly and Mr Milner, on the basis that they were relied upon in support of the plaintiffs' contention that the Minister's findings about housing supply were legally unreasonable. This is a recognised exception to the general rule that the only evidence that is relevant in a judicial review proceeding is the material that was before the decision maker.[68] However, I do not consider that either report supported a conclusion that the impugned findings lacked an evident and intelligible basis or were otherwise irrational.

109 It is useful to repeat the relevant paragraph of the Minister's Reasons in full:[69]

I am satisfied that my conclusion about this settlement boundary will not compromise land supply in the township, and in any event, land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape. Land supply and demand analysis included in the Surf Coast Settlement Background Paper, together with current Victoria in Future population projections, suggest that Spring Creek is not essential to maintaining housing supply in the Surf Coast Shire for the next 10 years. Excluding Spring Creek from the settlement boundary would reduce greenfield housing supply, when compared with the low density and conventional density development models for Spring Creek. This may place pressure on infill development, which could impact on township character in a different way to expanded greenfield areas. This can be sensitively managed through planning controls and policy. Clause 11.02-1S of the Surf Coast Planning Scheme requires that land is available to accommodate 15 years of land supply on a municipal basis, not town by town basis, and the Council's strategic planning provides significant land supply in other parts of the municipality including Winchelsea. Additionally, although a settlement boundary provides long term certainty, it is not immoveable should circumstances change.

110 It is immediately apparent that the Minister did not express a conclusion that the Surf Coast municipality would realise its 15 year housing supply obligations without residential development of the Spring Creek area. Nor did the Minister find that constraints on residential land supply in Torquay due to adoption of the Surf Coast SPP could all be met by residential development in Winchelsea. Mr Milner's report was relied upon by the plaintiffs to undermine findings that the Minister simply did not make.

111 It is the case that the Background Paper referred to by the Minister included 1,940 dwellings in the Spring Creek area in the total greenfield capacity for Torquay-Jan Juc of 4,250 dwellings. In addition, it identified the potential for between 1,600 and 2,600 additional infill dwellings within Torquay-Jan Juc. The Background Paper provided the following analysis of the adequacy of residential land supply in Torquay-Jan Juc:[70]

Based on an analysis of capacity, current policy, zoning and recent development trends in Torquay-Jan Juc, it is estimated that there is 21-30 years of infill supply and 13 years of greenfield supply, as Appendix 1 explains. This range varies depending on the level of infill take-up and densities. Any changes to current policy, zoning or recent development trends will change these estimates.

Combining the estimated capacity for infill and greenfield development, there is a total capacity in Torquay-Jan Juc for about 5,850-6,850 dwellings. This is in line with the projected population of 32,500 people by 2036 and the estimated 6,190 dwellings needed to meet this demand (DELWP 2019d).

These capacity estimates do not include the potential for residential development in commercial areas (such as shop-top development), which would increase the anticipated dwelling capacity. This analysis of residential capacity focuses on Torquay-Jan Juc and shows that there is currently enough capacity to meet the projected demand for the declared area. However, if there are policy changes, other locations within Surf Coast Shire will need to be explored for accommodating future residential growth to meet the projected demand at a municipal level.

112 I consider that it was open to the Minister to conclude that this analysis, together with recent population projections, suggested that residential development of the Spring Creek area was not essential to maintaining housing supply in the Surf Coast Shire for the next ten years. It is notable that the Minister chose a shorter timeframe and a wider geographic area than the analysis in the Background Paper - ten years as opposed to 15, and the Surf Coast Shire rather than the township of Torquay-Jan Juc.

113 The Minister was plainly conscious of the fact that the 1,940 dwellings projected for the Spring Creek area would no longer contribute to the available supply. In the Minister's words: 'Excluding Spring Creek from the settlement boundary would reduce greenfield housing supply, when compared with the low density and conventional density development models for Spring Creek'.[71] In the balance of [47] of the Reasons, the Minister expressed his view that this constraint could be met by increased infill development, which could be sensitively managed by planning controls and policy, and by land supply in other parts of the municipality, including Winchelsea.

114 The plaintiffs were able to make this argument by reference to the Background Paper, the Committee's report, and the Minister's Reasons. It was not necessary to refer to opinions expressed in Mr Ganly's report, which did not take the matter any further than the material that was before the Minister.

115 Mr Ganly's report referred to more recent ABS data than was before the Minister, in particular the population estimates released by the ABS on 29 March 2022 and housing approval data published in August 2021. However, there was no suggestion that the updated data was before the Minister when he made the Finalisation Decision; it was not referred to in the relevant Ministerial brief. The plaintiffs did not contend that the Minister had a duty to seek out the most recent ABS population estimates and housing approval data before making the Finalisation Decision.[72] Rather, their argument was that it was unreasonable for the Minister to rely solely on the historical data when more recent data was available.

116 The fact that the Minister did not rely on the most recent data available does not demonstrate that the Minister's conclusions about housing supply were simply not open or lacked an intelligible foundation. The updated data was not significantly different from the data on which the Minister relied. It confirmed that strong population growth was likely to continue in Torquay and the Surf Coast, as would the high demand for housing in Torquay. The new data did not alter Mr Ganly's opinions, first expressed in his March 2021 report for the Committee, that adoption of the Surf Coast SPP would have serious consequences for the future supply of residential land within the Surf Coast Shire, and would make it impossible for the Surf Coast to meet its 15 year residential land supply obligations. Mr Ganly's opinion was that the more recent data 'further emphasises the need for the Spring Creek FRA[73] to be developed to provide 1,940 dwellings, with the foreshadowed implications of such development not being permitted increasingly apparent within Torquay'.[74]

117 However, Mr Ganly's opinion was not the only one that could be drawn from the available evidence. The Minister plainly formed a different opinion - that Spring Creek was not essential to maintaining housing supply in the Surf Coast Shire for the next ten years. In my view, both opinions were reasonably open on the material available to the Minister, and both would have been reasonably open if that material had included the more recent ABS data. In a judicial review proceeding such as this one, it is not the Court's role to decide which opinion was the correct or preferable one.

118 The plaintiffs have not demonstrated that the Minister's conclusions about housing supply were legally unreasonable.

Ground 3 - Did the Minister misunderstand the law?

120 Ground 3 also relates to the Minister's consideration of land supply constraints at [47] of the Reasons. It is set out in the amended originating motion as follows:

1. Further or alternatively to Ground 2, on the premise that the Minister considered that "land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as distinctive landscape", the Finalisation Decision was affected by jurisdictional error because, in making the Finalisation Decision, the Minister proceeded on the basis there are no circumstances in which land supply constraints would warrant conventional subdivision in an area declared as distinctive landscape, whereas:

11.1 there is nothing in Part 3AAB of the Planning Act or elsewhere in that Act which precludes conventional subdivision in an area declared as distinctive landscape;

11.2 the objectives of planning set out in section 4 of the Planning Act include:

(a) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e) of section 4 (section 4(1)(f));

(b) to facilitate the provision of affordable housing in Victoria (section 4(1)(fa));

(c) to balance the present and future interests of all Victorians (section 4(1)(g));

11.2A as a planning authority for the purpose of Part 2 of the Planning Act, the Minister was required by section 12(1)(a) of that Act to implement the objectives of planning in Victoria;

11.3 the objectives of planning identified in paragraph 11.2 above are capable, in appropriate circumstances, of supporting conventional subdivision, including in suitable locations within areas declared as distinctive landscape.

1. Accordingly:

12.1 the Minister misunderstood the law that he was to apply in making the Finalisation Decision;

12.2 further or alternatively, the Minister failed to take into account a relevant consideration;

12.3 further or alternatively, the Minister made a decision that was not authorised by the Planning Act in that he failed to implement the objectives of planning as he was required to do by s 12(1)(a) of that Act.

121 The plaintiffs said that the crux of this ground is that the Reasons reveal that, in making the Finalisation Decision, the Minister proceeded on the basis that there were no circumstances in which land supply constraints would warrant conventional subdivision in an area declared as a distinctive landscape under s 46AO. In doing so, they submitted, the Minister erroneously treated the objectives of Pt 3AAB as subordinating social and economic considerations, such as housing supply and affordability, and gave these objectives priority over the broader objectives of planning set out in s 4 of the Planning Act.

122 In support of this ground, the plaintiffs referred to the objects of Pt 3AAB in s 46AN, the purpose of a statement of planning policy as provided in s 46AU, and the contents of a statement of planning policy set out in s 46AV of the Planning Act.[75] They said that these provisions demonstrated that, even before one considers the effect of s 4 of the Planning Act, Pt 3AAB does not require the statement of planning policy to advance the protection and conservation of the distinctive attributes of the declared area at all costs. In the plaintiffs' submission, the requirement in s 46AV(2) that a declared framework plan 'integrates environmental, social, cultural, and economic factors' is clear evidence of this.

123 The plaintiffs noted the resemblance between s 46AV(2) and cl 71.02-3 of the Victoria Planning Provisions, which directs planning and responsible authorities to integrate relevant planning policies and balance conflicting objectives in favour of net community benefit. As with this requirement for integrated decision making, the plaintiffs argued that s 46AV(2)(a) confirms that the declared area framework plan within a statement of planning policy must seek to achieve an outcome which balances competing objectives in order to achieve a net community benefit to allow for 'the future use and development of land in the declared area'. On that basis, the plaintiffs submitted, the Minister's belief that 'land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape' revealed a mistaken understanding of the applicable law.

124 In the alternative, the plaintiffs submitted that, even if Pt 3AAB did not itself expressly require the Minister to balance competing objectives, other aspects of the Planning Act had that effect. They argued that the Minister acts as a planning authority when preparing a statement of planning policy under Pt 3AAB, and accordingly is required by s 12(1)(a) of the Planning Act to implement the objectives of planning in Victoria set out in s 4(1). While the plaintiffs did not dispute 'the importance of recognising and protecting distinctive attributes to be elevated for declared areas', they said that Pt 3AAB does not evince an intention that the objects in s 46AN are to be given absolute priority over these other provisions of the Planning Act, or the applicable planning scheme.

125 The plaintiffs resisted the Minister's suggestion that the general objectives in s 4 should give way to the specific objects of Pt 3AAB, on the basis that this principle of construction applies only where a general and a specific provision cannot be reconciled.[76] They argued that the context of the Planning Act as a whole evinced an intention that consideration should be given to its multiple objects, in a way that allows both general and specific provisions to operate.

126 The plaintiffs also accepted that the objectives set out in ss 4 and 46AN of the Planning Act may compete, and that the weight to be given to competing objectives is a matter for the Minister. However, they submitted that it was erroneous for the Minister to embark on that balancing exercise on the false footing that there were no circumstances in which land supply constraints might be a reason to facilitate conventional subdivision in a declared area. They contended that this error was jurisdictional in nature.[77]

127 Finally on this ground, the plaintiffs submitted that the error was material to the Finalisation Decision, in that there was a realistic possibility that the Minister could have decided differently had he not strayed into error.[78]

128 The Minister submitted that this ground should be dismissed because:

(a) first, the Minister did not proceed upon the misunderstanding contended by the plaintiffs;

(b) second, the Minister was entitled to balance the objectives of Pt 3AAB and the objectives in other parts of the Planning Act, and it was open to give the former greater weight or priority over the latter;

(c) third, any error would in any event have been immaterial to the Finalisation Decision, and so could not have given rise to jurisdictional error.

129 As to the first argument, the Minister said that the Reasons are to be read fairly and not with an eye keenly attuned to the detection of error.[79] The Minister said that, when [47] of the Reasons is read and understood as a whole, it is clear that the statement that 'in any event, land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape' was subordinate to the Minister's principal finding that the settlement boundary would not compromise land supply in the township. The remainder of the Minister's reasoning in [47] addressed whether the issue of housing supply justified an alternative conclusion about Spring Creek, demonstrating that the Minister in fact assessed and balanced the issue of housing supply along with other relevant issues. The Minister said that the reference to land supply constraints should be understood to have been directed to the particular situation of Spring Creek.

130 The Minister relied on the final paragraph of the Reasons, from which she said it was apparent that housing supply was assessed and balanced against competing considerations. She submitted that, on a fair reading of the Reasons, it could not be said that the Minister had disregarded housing supply. Rather, he was expressing a conclusion in relation to Spring Creek that land supply constraints would not trump the other matters to which he gave significant weight, in particular the protection and conservation of landscape values and community sentiment around township character.[80]

131 As to the second argument, the Minister said that it would have been permissible to give the objects of Pt 3AAB priority over, or greater weight than, the more general objects in other parts of the Planning Act. The Minister submitted that the objects of Pt 3AAB,[81] and the purpose of a statement of planning policy,[82] prioritise the environmental attributes of a declared area, and place significant importance on protecting and conserving its unique features. While attribution of weight is a matter for the Minister, the objects of Pt 3AAB may - if not must - be given significant weight, and priority over other objects. This would reflect the principle of statutory construction that the general should give way to the specific.[83]

132 Further, the Minister pointed out that while s 4 of the Planning Act does not refer to housing supply in specific terms, it does refer to a number of specific environmental objectives.[84] As stated in the last sentence of [44] of the Reasons, the Minister did consider and apply the objects in s 4 when preparing the Surf Coast SPP.

133 The Minister did not embrace the proposition that the Minister is exercising functions as a planning authority when preparing a statement of planning policy under Pt 3AAB. Her position was that the Minister is a planning authority only in respect of sections of the Planning Act that confer powers on a planning authority, which do not include Pt 3AAB. However, her primary argument was that there was no error in the approach that the Minister took in trying to reconcile the objects of Pt 3AAB with the objectives of planning to reach a sensible policy outcome on the location of the protected settlement boundary.

134 As to the third argument, the Minister emphasised that the impugned statement was subsidiary to the principal finding that the settlement boundary would not compromise land supply in the township, as indicated by the words 'in any event'. She submitted that there was no realistic possibility that the Minister might have made a different decision in light of that principal finding, given that the Minister had in fact considered and taken into account housing supply.

135 The plaintiffs' argument on this ground focused on the second part of the first sentence of [47] of the Reasons - 'and in any event, land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape'. This statement must be read fairly and in the context of the reasons as a whole, not narrowly or pedantically, and without an 'over-zealous parsing' of the Reasons.[85] Taking that approach, I am not persuaded that the impugned statement revealed any error in the Minister's reasoning, let alone a material error.

136 To begin with, it is clear from the context that the impugned statement was secondary to the Minister's primary conclusion that locating the settlement boundary at Duffields Road would not compromise land supply in the township. The statement could realistically have affected the Minister's decision about the settlement boundary only if the Minister thought that locating it at Duffields Road would unduly constrain land supply in Torquay-Jan Juc. In the balance of [47], the Minister explained his primary conclusion that it would not. I have found that primary conclusion was open on the material before the Minister, and was not legally unreasonable. Hence, even if the impugned statement involved some error, it was not material to the Minister's ultimate decision about the location of the settlement boundary.

137 In any event, it is not possible to discern the contended errors from the Reasons, read fairly and as a whole. The Reasons demonstrate that the Minister took the objectives of planning into account when preparing the Surf Coast SPP. The Minister expressly stated at [44] of the Reasons that it was incumbent on him to prepare the Surf Coast SPP in accordance with the Planning Act, including by having regard to the objectives in s 4. Taking that statement at face value, I am satisfied that the Minister had regard to the objectives of planning set out in s 4(1) of the Planning Act.[86] At the same time, the Minister was entitled to give significant weight to the specific objectives of Pt 3AAB, and to determine for himself the distribution of weight between the various competing factors. It is apparent from the Reasons that the Minister arrived at his conclusion about the best course to take having taken 'all matters into account', but giving most weight to the objectives of Pt 3AAB, the protection and conservation of landscape values in the declared area, and community sentiment around township character and the future of the community.[87]

138 Further, while the objectives of planning in Victoria do not specifically include maintaining a supply of land for residential development, it is plain that the Minister took that matter into account. The whole of [47] of the Reasons was addressed to the question of land supply for housing. It was also one of the matters listed in the final paragraph of the Reasons, where the Minister acknowledged the tension between competing considerations - 'in particular the protection and conservation of landscape and environmental attributes, township character, orderly planning and housing supply'.[88] The consideration of land supply actually undertaken by the Minister belies the submission that he understood that land supply constraints could never guide planning policy for a declared area. It rather demonstrates that the Minister considered that, in the case of the Surf Coast declared area, land supply constraints were not a reason to facilitate residential development of Spring Creek.

Ground 5 - Was the Finalisation Decision affected by bias?[89]

140 The plaintiffs' fifth ground of review alleged that the Finalisation Decision was affected by bias in the form of prejudgment. This ground relied on several media statements attributed to members of the Victorian Government, specifically:[90]

(a) a media release issued by Premier Daniel Andrews on 27 September 2018 headed 'Stopping Developers Ruining Bellarine and the Surf Coast';

(b) a media release issued by the Minister on 30 October 2018 entitled 'Fixing Matthew Guy's mess in Spring Creek';

(c) an article published in the Geelong Advertiser on 30 October 2018, headed 'State Labor Government eager to scrap Spring Creek development despite likely legal challenge';[91] and

(d) two further articles published in the Geelong Advertiser on 16 March 2019 and 18 April 2019, the first entitled 'Premier Daniel Andrews says Torquay town boundary commitment will be honoured', and the second called 'Daniel Andrews vows to stop overdevelopment'.

141 After quoting from this material, the plaintiffs formulated the ground in their amended originating motion as follows:

18.5 the draft Surf Coast SPP referred to the Committee contemplated only Option 1 and Option 2 for the Spring Creek area, both of which excluded the possibility of residential subdivision and development on the Subject Land consistent with the Spring Creek PSP proposed in Amendment C114, in respect of which the Minister is yet to make a decision under section 35 of the Planning Act;

18.6 the Minister made submissions to the Committee that the Committee's role was confined to formally recommending the adoption of either of Option 1 or Option 2 and that the Committee cannot "formally recommend a third option not contained in the material it is required to consider";

18.7 the Minister considered that "the essential purpose of an advisory committee is for it to provide me with advice in response to the terms of reference which I set", which the Minister considered did not include advice in respect of options other than Option 1 and Option 2;

18.8 the Surf Coast SPP is contrary to the Committee's recommendation against Options 1 and Option 2, and its recommendation that the Minister instead "endorse the alternative option of adopting the Council adopted [Surf Coast PSP], subject to further modifications and a limited review process";

18.9 in making the Finalisation Decision, the Minister was aware of and can be taken to have brought to bear on that decision the statements described in paragraphs 18.2 and 18.3 above;[92]

18.10 in making the Finalisation Decision, the Minister was aware and can be taken to have brought to bear on that decision that the option of a protected settlement boundary for Torquay-Jan Juc that included the Spring Creek area for residential subdivision and development, as recommended by the Committee, was not aligned with the statements described in paragraphs 18.2 and 18.3 above;

18.11 in the circumstances set out in paragraphs 18.1 [to] 18.10 above, in making the Finalisation Decision, the Minister's mind was closed to any option for a protected settlement boundary for Torquay-Jan Juc that did not align with the statements described in paragraphs 18.2 and 18.3 above.

142 In the alternative, the plaintiffs contended, based on the media statements and the matters set out at 18.5 to 18.8 of their amended originating motion, that the Finalisation Decision was affected by apprehended bias in the form of prejudgment. That is, an independent observer might reasonably apprehend that the Minister might not be open to persuasion in making the Finalisation Decision.

143 The first statement relied upon by the plaintiffs was a media release issued by the Premier on 27 September 2018. It read, in full:

Stopping Developers Ruining Bellarine And The Surf Coast

27 September 2018

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.

Quotes attributable to Minister for Planning Richard Wynne

"These planning protections will be enshrined in law - that means locals will be permanently protected from the kind of overnight deals with developers that flourished under Matthew Guy and the Liberals".

"There's no denying that our state is growing but that doesn't mean we should let developers ruin our small towns. Growth needs to be managed and only Labor will put the interests of communities first".

Quote attributable to Member for Bellarine Lisa Neville

"Only Labor will protect the lifestyle locals on the Bellarine Peninsula enjoy with permanent planning protection, enshrined in law - this is about protecting our treasured communities and everything that is great about them".

Quote attributable to Member for Western Victoria Gayle Tierney

"The Torquay and Surf Coast area boasts some of most beautiful scenery with a unique environment - Labor will protect what the Liberals tried to ruin".

144 The second statement relied on was a media release issued by the Honourable Richard Wynne MP, who was the Minister for Planning at that time. It read, in full:

Tuesday, 30 October 2018

FIXING MATTHEW GUY'S MESS IN SPRING CREEK

A re-elected Andrews Labor Government will undo the damage of Matthew Guy's botched rezoning of Spring Creek by giving the community a say over the town's boundaries as part our plan to stop over-development.

Former Planning Minister Matthew Guy and the Liberals gave developers in the region open slather, when he unilaterally expanded Torquay's boundaries - against the wishes of the community - to absorb Geelong's massive growth with sprawling estates to benefit his developer mates.

We believe that the sprawl and over development on the Surf Coast has gone too far, so Labor will declare the Surf Coast a Distinctive Area and Landscape under the Planning and Environment Act 1987 to give the community a say over height controls and town boundaries with a Statement of Planning Policy.

Labor's position is that the new town boundary for Torquay should begin at Duffields Road.

However, unlike the Liberals, we will listen to the community and ensure that their views are put front and centre in the consultation process. When Matthew Guy was the Planning Minister, he overruled the local council and imposed the rezoning of Spring Creek on the community.

We believe the consultation process will result in a reduction in the size of the town boundaries because locals have told us that Torquay is getting too big, and we are committed to listening and acting on their views.

The ultimate decision on town boundaries will be finalised after extensive community consultation through the Statement of Planning Policy process - this is will end the push by developers to expand these towns and ruin the 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. The Spring Creek Structure Plan prepared by the Council was rejected because it failed to provide for a new school and would have sacrificed too many of the rare native trees in the area. It will now be placed on hold pending the final outcome of the community consultation over town boundaries.

Once the area is declared a Distinctive Area and Landscape any attempt to change town boundaries must be agreed by Parliament, protecting local communities from the kind of inappropriate sprawl and secret deals with developers that flourished under the Liberals.

Quotes attributable to Minister for Planning Richard Wynne

"We will give Surf Coast communities the say over their town boundaries that was denied to them by Matthew Guy when he unilaterally rezoned land on Torquay's fringes".

"These new town boundaries and planning protections will be enshrined in law - that means locals will be protected from the kind of overnight deals with developers that flourished under Matthew Guy and the Liberals".

Quotes attributable to Labor Candidate for South Barwon Darren Cheeseman

"I will always stand up for the community against greedy developers and their Liberal mates who want to turn the Surf Coast into the Gold Coast".

"Only Labor will put people before developers and give the community a say on whether development should stop at Duffields Road".

145 Next, the plaintiffs relied on a trio of articles published in the Geelong Advertiser. The first of those, dated 30 October 2018, read:

State Labor Government eager to scrap Spring Creek development despite likely legal challenge

...

THE future of a controversial housing development at Spring Creek has become shrouded in doubt, with Labor sensationally revealing it wants the plan scrapped.

The Andrews Government has declared it believes Torquay's town boundary should be shrunk to exclude the Spring Creek valley, where more than 2000 homes are set to be built.

Despite its stance, a final decision on the position of the town boundary will not come until after a consultation process next year, as part of Labor's preelection pledge to curb "overdevelopment" on the Surf Coast.

But the revelation is certain to fuel concern among developers, with one recently telling the Geelong Advertiser it would consider suing the State Government if the development was shelved.

It also heralds an internal win for Labor candidate for South Barwon, Darren Cheeseman, who recently broke ranks from his party to lobby against the development and call for Torquay's western boundary to end at Duffields Rd.

Mr Cheeseman said Labor's position on Spring Creek was in line with the views of the Torquay community.

"It is very clear to me that the vast majority of the community want to see Duffields Rd as the western town boundary," he said.

"Our position is the boundary should be at Duffields Rd. If the community can convince us to move beyond that, they're welcome to try".

Developing Spring Creek has been a contentious issue on the Surf Coast for more than a decade, with protests attracting thousands of people in 2009.

Initial talks about building homes in the area progressed significantly in 2010 when Labor's then-planning minister Justin Madden expanded Torquay's town boundary to incorporate a 1km section of the valley.

That was followed in 2014 when the Liberals' Matthew Guy issued planning approval for the same area.

In recent years, the Surf Coast Shire has been working with various government departments to finalise a structure plan for the precinct, but it took a twist last week when Labor announced it would put the plan "on hold" until after the election.

Until now, there has been confusion surrounding Labor's views on the development, which was compounded by a recent direction from the Government that housing density be increased in the structure plan.

Labor has played down the importance of the direction, claiming it was merely administrative.

Planning Minister Richard Wynne said Labor's plan to strengthen town boundaries was recognition that development on the Surf Coast had gone too far.

"We will give Surf Coast communities the say over their town boundaries that was denied to them by Matthew Guy when he unilaterally rezoned land on Torquay's fringes," he said.

The Liberal Party has previously accused Labor of being hypocritical about Spring Creek, citing Mr Madden's shifting of the town boundary in 2010.

The Opposition has committed to preserving Torquay's existing boundary, which would mean the Spring Creek development would continue as planned.

Earlier this month, South Barwon MP Andrew Katos said any scrapping of the development could lead to compensation claims totalling more than $100 million.

146 The second article was published on 16 March 2019, and read:

Premier Daniel Andrews says Torquay town boundary commitment will be honoured

...

THE boundary of Torquay should be at Duffields Road "not one foot further" to prevent development on land near Spring Creek, Premier Daniel Andrews says.

The comments follow concerns from the Greater Torquay Alliance that the boundary may be kept beyond Duffields Rd following a consultation process due to be completed by November.

Mr Andrews said the State Government is committed to keeping its election promise to pull back the boundary and kill off plans to build more than 2000 homes.

"Duffields Rd is the town boundary not one foot further. I can't be any clearer that than. That will be the town boundary; there will be no development beyond that," Mr Andrews told the Geelong Advertiser on Friday.

"We made commitments and those commitments will be honoured in full.

"I can understand that there is a lot of residents in the local community that feel they have not been listened to; feel that they have not had their views heard and they do feel very passionately about issues of over developing such a beautiful costal community.

"I want to reassure every single member of that local community that when [we] make promises we want to keep them. The overdevelopment of our precious co[a]stal communities is over".

Asked if the government would pay out developers whose land could no longer be developed, Mr Andrews said: "Previous governments made decisions and I'll leave it to them to defend some of the cosy relationships they had with cashed-up developers. I'm not in that business".

Earlier this week GTA president Andrew Cherubin said initial discussions with the government indicated its views had since watered down.

"They've certainly pulled back from a definite Duffields Rd boundary - it's now up for review rather than a definite boundary," he said.

Mr Cherubin also cast doubt on the Government's promise to complete the consultation process within 12 months of its election win.

"We had a meeting not too long after the election with (South Barwon MP) Darren Cheeseman," he said.

"We're trying to keep in touch as much as we can, but we're a little bit in limbo at the moment.

"I doubt it will be that timeline (12 months). I think it will more likely be 18 months".

Mr Cheeseman said he was confident the process could be wrapped up by November.

"We have committed to resolve this issue in the first year of the elected Daniel Andrews government and we will," he said.

Development firm Parklea who owns about 350 lots in the area has previously said it would consider legal action if development could not go ahead.

147 The third and final article was dated 18 April 2019. It read:

Premier Daniel Andrews vows to stop overdevelopment

...

COMMUNITIES on the Surf Coast and the Bellarine will enjoy the permanent protections they need to stop overdevelopment under moves announced by Premier Daniel Andrews yesterday.

Mr Andrews said his government believed the sprawl and overdevelopment across the region had gone too far, risking the lifestyle locals loved and enjoyed.

The Government announced community engagement was under way ahead of the declaration of Torquay, Jan Juc and surrounds, and the Bellarine communities as distinctive areas and landscapes under the Planning and Environment Act.

"I want to be very clear that it's our position that the town boundary (for Torquay) is Duffields Rd and not an inch further," Mr Andrews said.

"And I think that will be very strongly supported through the consultative process that we need to go through. We want to make sure that we put this beyond doubt.

"The unique character of this beautiful coastal community needs to be preserved and enhanced and overdevelopment was rejected in November last year".

Mr Andrews said consultation would enable the community to have input into the declaration statement that will underpin the detailed work that will go into drawing up the statement of planning policy.

But developers who had bought land for the proposed Spring Creek development would not be compensated.

"We're not in the business of compensating people for the fact that they couldn't make a huge windfall profit and fundamentally undermine the character of this area," he said.

"We've put residents first".

While Duffields Rd remained its preferred town boundary, the Government said the ultimate decision on town boundaries would be finalised after community consultation.

Bellarine MP Lisa Neville said the declaration statement would give the community a say over height controls and town boundaries.

"This was perhaps one of the most important issues in the last election and this process is about town boundaries but it's also about character and height issues as well and long-term protection," she said.

"We've had planning schemes that provided some protection but then you get councils and others trying to push the barrow.

"This is about making sure they can't do that by protecting the great landscapes and assets that are there".

Community engagement will start next month and the declaration will take place in July.

The draft statement of planning policy is to be completed by the end of 2019 and the process finalised by mid-2020.

148 The plaintiffs submitted that Pt 3AAB of the Planning Act conferred power on the Minister to prejudice a person's interests, and so the rules of natural justice, including the rule against bias, applied to the exercise of that power.[93] They said that a finding of actual bias required the Court to be satisfied that the decision-maker approached the issues with a closed mind and was incapable of being swayed by the evidence at hand.[94]

149 In relation to their alternative case, that the Finalisation Decision was affected by apprehended bias, the plaintiffs referred to the well-known 'double might' test - namely, whether the fair-minded lay observer, properly informed as to the nature of the process, might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision.[95] The plaintiffs accepted that a Minister is in a special position and ordinarily will be entitled to act in accordance with government policy,[96] and that the fair-minded observer is taken to be aware of this. Even so, they said that there are circumstances in which a decision of a Minister may be invalidated due to apprehended bias, for example where comments by the Minister 'conveyed implacable opposition' to an application.[97]

150 Based on the media releases and articles set out at [143] to [147] above, the plaintiffs submitted that the Court should be satisfied that well before the preparation of the Surf Coast SPP began, the Minister had already determined that the settlement boundary would exclude conventional residential subdivision on the plaintiffs' land. They said that, notwithstanding the inclusion of Option 1 in the draft SPP, as a matter of fact the Minister's mind was closed to the possibility that the settlement boundary would lie anywhere other than at Duffields Road. The plaintiffs argued that it was evident from the media statements that on and from 30 October 2018 it was the Government's firm position and the Minister's intention to prevent conventional residential development in the Spring Creek area. They said the Minister held this position regardless of any other consideration that might arise from further consultation, the advice of the Committee, expert evidence, or wider policy assessment.

151 In addition to the media statements, the plaintiffs relied on the Minister's position before the Committee, to the effect that the Committee could not consider a third option for the location of the settlement boundary. They also relied on the Ministerial brief that preceded the Finalisation Decision, which advised the Minister as to how the various options aligned with the Premier's statement. A risks and benefits analysis attached to the brief referred to the Premier's statements of 30 October 2018 and March 2019. The analysis noted as a 'con' for Option 1 (lower density development) that it was not aligned with the Premier's statement, while a 'pro' for Option 2 (no development) was that it was aligned with the Premier's statement.

152 While the plaintiffs did not suggest that the Minister's consultation about the Surf Coast SPP was a charade, they argued that the Minister's appointment of the Committee was not evidence that his mind remained open to persuasion at all relevant times. In reply, they reiterated their position that the media statements and the Minister's position before the Committee evinced a closed-mindedness about the outcome of the consultation process.

153 For those reasons, the plaintiffs submitted that it was open to find as a matter of fact that the Minister was not open to persuasion on the matter. Alternatively, the plaintiffs submitted that I should find that the Finalisation Decision was affected by apprehended bias. They said that a fair-minded lay observer might reasonably have apprehended from the evidence that the Minister might have been overwhelmingly influenced by an expectation that his decision-making conform to the Government's election promise.

154 The Minister did not contest the proposition that the rules of natural justice applied to the preparation of the Surf Coast SPP, including the rule against bias. However, she disputed the plaintiffs' claims of actual and apprehended bias.

155 In response to the claim of actual bias, the Minister said that the proper test requires an assessment of the state of mind of the decision-maker, and that proof of the requisite state of mind is rare. Bias in the form of prejudgment is a state of mind 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented'.[98] The Minister emphasised that a finding of actual bias is a serious matter, and should not be made lightly - particularly against a minister who has a political role and is not subject to the same decision-making requirements as a court.[99]

156 The Minister submitted that the matters relied upon by the plaintiffs were not sufficient to prove actual bias on the part of the Minister, given the gravity of the accusation and the stringent test to be applied. She advanced four reasons why the contention should be rejected:

(a) First, the statements made by the Premier and the Labor candidate for South Barwon could not be probative of the Minister's subjective state of mind. The Minister contrasted this case with Asset Energy Pty Ltd v Commonwealth Minister for Resources,[100] in which the statements indicating prejudgment were made by the minister responsible for making the decision.

(b) Second, the allegation that the Minister's subjective state of mind was incapable of alteration could not be reconciled with the procedural history. The Minister's voluntary appointment of the Committee to consider a range of issues in relation to the Surf Coast SPP, including Spring Creek, was strong evidence that the Minister's mind remained open to persuasion.

(c) Third, it would require a leap to infer that the Minister's mind was closed simply by reason that his position before the Committee was that it was not entitled to consider the third option for Spring Creek. If the issue had been prejudged, there would have been no need to seek the Committee's opinion about any options for Spring Creek.

(d) Fourth, the Reasons for the Finalisation Decision should prima facie be taken to reflect the Minister's subjective state of mind, and gave no room for a finding of actual bias.

157 In relation to the claim of apprehended bias, the Minister referred to the established test of whether a fair-minded and informed observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question in issue.[101] The test is objective, and the fair-minded observer is taken to know the actual circumstances of the case.[102] Application of the test involves three steps: first, identification of the factor which it is said might lead the decision-maker to resolve the question other than on its merits; second, articulation of how that factor might cause a deviation from a neutral evaluation of the merits; and, third, consideration of the reasonableness of that apprehension from the perspective of the fair-minded observer.[103]

158 The Minister drew attention to authorities concerning the application of the test where the relevant power is reposed in a minister, who has a political role and responsibilities, and who would ordinarily be expected to act in accordance with government policy.[104] She submitted that, where the decision-maker is a minister, and likely to be a member of a political party, a reasonable observer would accept that the minister's decision will be made in the context of the minister's active involvement in political affairs.[105] In the context of a planning decision, where a political decision-maker may have a strong preliminary view about the relevant planning merits, the question was whether the reasonable observer might apprehend that the Minister was not open to persuasion.[106]

159 In all cases, the Minister submitted, a reasonable apprehension of bias must be 'firmly established' before a decision will be set aside.[107]

160 Relying on the different standard applicable to political officeholders, the Minister said that it was open for the government to express a view on a contested issue, and for a Minister of the Crown to have regard and give effect to government policy in making a decision relevant to that issue. The Minister submitted that a reasonable apprehension of bias by prejudgment did not arise simply because the Premier and a Labor candidate had expressed a view about the township boundary for Torquay. She said that the fact that the power to prepare a statement of planning policy for a declared area is vested in an elected official is inconsistent with any assumption that the official will bring a blank mind to the exercise. To the contrary, the Minister argued, it can reasonably be expected that an elected minister can be drawn into public debate,[108] and may have regard to government policy when preparing the statement of planning policy.

161 The Minister submitted that the totality of the circumstances demonstrated that the Minister at the time brought an impartial mind to the preparation of the Surf Coast SPP. The circumstances relied upon included the voluntary appointment of the Committee, the referral of Options 1 and 2 for consideration by the Committee, the holding of public hearings, the provision of the Committee's opinion in relation to Spring Creek, and the provision of the Reasons providing justification for the Finalisation Decision.

162 I do not consider that a finding of actual bias is open on the evidence. The media statements attributed to the Premier or to other members of the Government are not probative of the Minister's subjective state of mind. The only evidence of the Minister's subjective statement of mind is the Reasons for the Finalisation Decision, and statements attributed to him in the media releases of 27 September 2018 and 30 October 2018. That evidence does not come close to establishing that the Minister approached the finalisation of the Surf Coast SPP with a mind that was closed and incapable of alteration by evidence and argument about the future development of the Spring Creek area. To the contrary, the evidence is that, while the Minister was predisposed against conventional residential development of Spring Creek, he was open to persuasion on that question.

163 The Minister's appointment of the Committee to advise him about the Surf Coast SPP is a particularly strong indication that he had not predetermined the location of the settlement boundary for Torquay-Jan Juc. Part 3AAB of the Planning Act requires only that the Minister consult with the persons and entities listed in s 46AW when preparing a statement of planning policy for a declared area. How that consultation occurs is a matter for the Minister, and there is no requirement to undertake a formal process involving the receipt of submissions and public hearings. In relation to the Surf Coast declared area, the Minister chose to seek the advice of the Committee, provided the draft SPP for its consideration, and participated in its public hearings. The draft SPP presented two options for the Spring Creek area, one of which involved low density residential development. When the Committee rejected the Minister's position that it could only consider those two options, he continued to participate in its public hearing process, and received and considered its report. The Minister then voluntarily provided reasons for his rejection of the Committee's advice about Spring Creek and the location of the settlement boundary. None of this supports a conclusion that the Minister's mind was already made up.

164 As to whether there was a reasonable apprehension of bias, the test to be applied was whether a fair-minded and informed observer might reasonably have apprehended that the Minister might not have been open to persuasion about the location of the settlement boundary for Torquay-Jan Juc. The Finalisation Decision will have been affected by apprehended bias in the form of prejudgment if the Minister was 'so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may [have been] presented'.[109]

165 I readily accept that the Minister prepared the Surf Coast SPP against the background of a strongly expressed government policy. While the Minister's own statements in the media releases were fairly measured,[110] the Premier's reported statements in March and April 2019 made clear the Government's position that the town boundary should be at Duffields Road 'and not an inch further'. The fair-minded lay observer must be taken to have been aware of that policy background, and the longstanding controversy about the future development of the Spring Creek area.

166 At the same time, the fair-minded observer would be aware that the preparation of a statement of planning policy for a declared area is entrusted by the Planning Act to an elected Minister who is responsible to Parliament. The political nature of the exercise is reinforced by the requirement that a statement of planning policy must be approved within two years after the declaration of an area,[111] and the provision that a protected settlement boundary does not take effect unless it is ratified by each House of Parliament within ten days of being laid before that House.[112] In those circumstances, the fair-minded observer would reasonably expect the Minister to be predisposed to give effect to that policy when preparing the Surf Coast SPP.

167 The draft SPP certainly indicates that the Minister was predisposed against conventional residential development of the Spring Creek area. However, Option 1 in the draft SPP was not consistent with the Premier's reported insistence that the town boundary would be 'not an inch further' than Duffield's Road. To the contrary, Option 1 contemplated residential development of the Spring Creek area. This demonstrates that the Minister was not committed to slavishly implementing the Government's policy and sought advice from the Committee about another alternative. In the event, the Committee advised the Minister to adopt a third option, which the Minister rejected only after consideration and with the explanation given in the Reasons.

168 Further, for the reasons I have already given,[113] the Minister's appointment of the Committee, participation in its processes, and consideration of its report is incompatible with an appearance of prejudgment. The plaintiffs disavowed the suggestion that the consultation process was an elaborate charade, and there was no evidence to support any such contention. The fair-minded observer would consider that the consultation undertaken by the Minister was genuine, and that it demonstrated that he was open to alternative positions.

169 Ground 5 is not made out. The Finalisation Decision was not affected by actual or apprehended bias.

170 Grounds 6 and 7 concern the Council's Endorsement Decision.

171 At its meeting on 23 August 2022, the Council considered whether to endorse the Surf Coast SPP. Before the meeting, the Council had received a written submission from the plaintiffs, and all but one of the Councillors had attended an oral briefing by the Council's solicitors. The Councillors had also been provided with a report to the Council on the Surf Coast SPP, prepared by the Council's General Manager, Placemaking and Environment (Officers' Report). The Officers' Report had three annexures:

(a) first, the final draft Surf Coast SPP;

(b) second, a table headed 'Annexure 2 - Objectives and matters of potential relevance', which set out the objectives identified at 3.1 to 3.5 of the Officers' Report together with matters that the Councillors may consider to be of relevance to each objective; and

(c) third, a document headed 'Annexure 3: Addendum to paper on endorsement of SPP (SPP Paper)', which provided some observations about the plaintiffs' written submission to the Council.

172 The minutes of the Council meeting of 23 August 2022 contained several references to its consideration of the Surf Coast SPP.

173 The first was a resolution, moved by Councillor Allen and seconded by Councillor Barker, that 'Council notes the receipt of the written submission of Zeally Investments Pty Ltd and Duffields Road Pty Ltd dated 17 August 2022 and the oral submissions made tonight by John Cicero, Cam Shephard and Don Welsh'.[114] The oral submissions made on behalf of the plaintiffs took around 30 minutes, and were heard before the Council moved to consider endorsing the Surf Coast SPP.

174 Second, the minutes reproduced the Officers' Report, which began with the following Executive Summary:

Parts of the Surf Coast Shire Council municipal district were declared a Distinctive Area and Landscape on 16 September 2021. The Minister for Planning must prepare a Statement of Planning Policy for a declared area. As expressed in section 46AU of the Planning and Environment Act 1987 (Vic) (PE Act), the purpose of a Statement of Planning Policy is to create a framework for the future use and development of land in the declared area to ensure the protection and conservation of the distinctive attributes of the declared area.

The Department of Environment, Land, Water and Planning (DELWP) conducted two rounds of community engagement prior to the release of the draft Surf Coast Statement of Planning Policy in November 2020 (draft SPP). The Distinctive Area and Landscape Standing Advisory Committee (Standing Advisory Committee), established under section 151 of the PE Act, oversaw a third round of consultation in relation to the draft SPP. On 14 April 2022, the Minister for Planning released the Surf Coast Statement of Planning Policy (SPP) on the Engage Victoria website. The SPP is annexed to and forms a part of this paper (Annexure 1).

On 28 April 2022, the Council received from the Minister for Planning a formal request to endorse the SPP under section 46AX(1) of the PE Act. This report relates to the Council's decision of whether to endorse or not endorse the SPP.

175 After summarising the background of the declaration of the Surf Coast declared area, the consultation process in relation to the draft SPP, and planning policy in the Spring Creek area, the Officers' Report turned to the matter for decision:

On 14 April 2022, the Minister for Planning released the SPP to the public. On 28 April 2022, the Council received from the Minister for Planning a formal request to endorse the SPP under section 46AX(1) of the PE Act. The Council may decide to either endorse or not endorse the SPP.

176 Part 3 of the Officer's Report set out the following discussion of the matter for decision:

Section 46AX of the PE Act does not specify the considerations which are relevant to the decision to endorse or not endorse a Statement of Planning Policy. And, as stated above, Council is presented with a binary choice - endorse or not endorse. It follows that Council has no power to vary or amend the SPP.

While the PE Act does not direct the Council to take any particular matters into account in coming to its decision, there are a number of objectives in the PE Act which the Council may wish to take into account. There are also more general governance principles relevant to Council decision making that are relevant to the Council's process.

3.1 Objectives of the planning framework established by the PE Act

The objectives of the planning framework established by the PE Act are set out in section 4(2) of the PE Act and include:

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

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

c) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes.

3.2 The objectives of planning in Victoria as identified in the PE Act

The objectives of planning in Victoria are set out in section 4(1) of the PE Act and include:

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

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

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

d) to facilitate the provision of affordable housing in Victoria.

3.3 The objects of Part 3AAB of the PE Act

The objects of Part 3AAB of the PE Act are set out in section 46AN of the PE Act. In the context of those objectives, a number of matters may be relevant, including:

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;

b) to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas;

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.

3.4 The content and structure of Part 3AAB of the PE Act

The decision of whether a RPE should endorse a Statement of Planning Policy is a separate step from the preparation of a Statement of Planning Policy by the Minister for Planning. The question of whether or not Council should endorse the SPP is not a question of whether the SPP could be improved or whether Council would have preferred it if the SPP had been prepared in a different way. Council is required to decide whether or not to endorse the SPP in the form prepared and provided to it by the Minister.

3.5 The role of a Council and the overarching governance principles set out in the LG Act

As stated in section 8(1) of the LG Act, the role of a Council is to provide good governance in its municipal district for the benefit and wellbeing of the municipal community. As stated in section 8(3)(a) of the LG Act, in performing its role, a Council may perform any duties or functions or exercise any powers conferred on a Council by or under the LG Act or any other Act.

As stated in section 9(1) of the LG Act, a Council must in the performance of its role give effect to the overarching governance principles. The overarching governance principles are set out in section 9(2) of the LG Act, including:

• priority is to be given to achieving the best outcomes for the municipal community, including future generations;

• the municipal community is to be engaged in strategic planning and strategic decision making; and

• the economic, social and environmental sustainability of the municipal district, including mitigation and planning for climate change risks, is to be promoted.

These principles may be relevant to the decision of whether to endorse or not endorse the final SPP.

3.6 A methodology for considering statutory objectives

In making its decision, Council is required to undertake an exercise considering the various factors relevant to its decision based on relevant material and in consideration of the statutory framework. Annexure 2 sets out material which may be relevant to consideration of certain objectives under the PE Act and LG Act, as described in section 3.

A decision on whether or not to endorse the SPP could result in some objectives being furthered at the expense of other objectives. For example, Council might consider that to endorse the SPP would implement various objectives including (this is not an exhaustive list):

• the objective to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity (s 4(1) PE Act); and

• the objective to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas (s 46AN(b) PE Act).

Council might also consider that to endorse the SPP would not fully further the objective to facilitate the provision of affordable housing in Victoria because the SPP:

• would have the effect of restricting urban development in the Spring Creek UGZ area; and

• is inconsistent with the approach in Amendment C114.

During the Standing Advisory Committee hearings, Council in its opening submissions contended that (at paragraph 14):

Finally, because the Amending Act gives specific protection to landscapes and environmental values, it is appropriate, when determining whether the [SPP] meets the new objectives [in s 46AN of the PE Act], and [the matters which a Statement of Planning Policy must address in s 46AV of the PE Act], to place emphasis on those values. This does not mean that the objectives in s 4 of the Act become meaningless but that to the extent that the competing demands in s 4 must be resolved, the objectives in s 46AN, and the values they embody, may be emphasised. As such, it is entirely appropriate when considering preferences for future land use, or integrating competing planning considerations, that the [SPP] places "greater weight on protecting the landscapes around Torquay than on providing for the scale of population growth anticipated in Victoria in Future", and "adopts a position that there is a greater community benefit in taking this course rather than allowing for the expansion of the settlement boundary into Spring Creek".

The Standing Advisory Committee in its report of 25 June 2021 noted that "Part 3AAB does not provide any express or implied intention that the provisions of section 46AN are elevated above or override any other provision of the PE Act or the Planning Scheme" (page 43). Notwithstanding this, at the least, it is clear that the Council is required to consider various factors relevant to its decision based on relevant material and in consideration of the statutory framework. This process does not require consciously placing greater emphasis on one objective over another where there are competing objectives.

Council may consider these factors in reaching its decision.

177 Part 4 of the Officers' Report set out the options available to the Council:

The following options are available to Council under section 46AX(1) of the PE Act:

1. Council may endorse the SPP; or

2. Council may refuse to endorse the SPP.

Under section 46AX(2) of the PE Act, the Minister for Local Government may direct the Council to endorse the document.

The Council should note that under section 46AT(2)(a) of the PE Act, the declaration for the declared area will lapse if the final SPP is not endorsed by all RPEs and approved by the Governor in Council by 20 September 2022. Under section 46AT(3) of the PE Act, the Governor in Council may approve an additional period for the preparation, endorsement and approval of a Statement of Planning Policy, not exceeding two years after the declaration of the declared area took effect. If the Governor in Council approves an additional period under section 46AT(3), then under section 46AT(2)(b) of the PE Act, the declaration for the declared area will lapse if the final SPP is not endorsed by all RPEs and approved by the Governor in Council before the expiry of the approved period.

178 The Officers' Report concluded with observations about implementation of the Surf Coast SPP.

179 The annexures to the Officers' Report were not reproduced in the minutes.

180 The third reference in the minutes was the resolution of the Council to endorse the Surf Coast SPP. The resolution, moved by Councillor Pattison and seconded by Councillor Bosworth, was in the following terms:

That Council endorses the Surf Coast Statement of Planning Policy released by the Minister for Planning on 28 April 2022 in relation to the Distinctive Area and Landscape Declaration.

181 The minutes record that the resolution was carried, with six councillors voting in favour and two against.

182 While the minutes did not note the debate on the resolution, the Council meeting was recorded and later transcribed. Councillors Pattison, Bodsworth, Allen, and Barker spoke in favour of the resolution, and Councillor Wellington spoke against. Individually, these five Councillors expressed different reasons for supporting or opposing the endorsement of the Surf Coast SPP. Of the remaining three Councillors, two voted in favour and one voted against the resolution. They did not speak during the meeting and there is no evidence of their individual reasons.

Ground 6 - Was the Endorsement Decision legally unreasonable?

183 In Ground 6, the plaintiffs contend that the Endorsement Decision was legally unreasonable, in that it lacked any evident and intelligible justification. The ground was set out in the amended originating motion as follows:

1. Council identified as matters which "may" be relevant to its decision whether to endorse the Surf Coast SPP:

20.1 the objectives of the planning framework established by section 4(2) of the Planning Act;

20.2 the objectives of planning in Victoria set out in section 4(1) of the Planning Act;

20.3 the objects of Part 3AAB of the Planning Act;

20.4 the overarching governance principles set out in section 9(2) of the Local Government Act 2020.

1. The Endorsement Minutes do not disclose, either expressly or by implication, that Council in fact considered any of the matters set out in paragraph 20 to be relevant to its decision whether to endorse the Surf Coast SPP.
2. Further, and in any event, the Endorsement Minutes do not disclose, either expressly or by implication, how the matters set out in paragraph 20 come to bear on Council's decision whether to endorse the Surf Coast SPP.
3. In the circumstances described in paragraphs 20 to 22 above the Endorsement Decision was legally unreasonable in that it was arbitrary and lacked any evident and intelligible justification.

184 The plaintiffs characterised the Council's decision under s 46AX(1) of the Planning Act as a evaluative one, which required it to consider the merits of the Surf Coast SPP that it was asked to endorse. They acknowledged that the decision was a binary one - to endorse or not endorse - but said that this did not relieve the Council of the need to weigh various relevant objectives in the balance.

185 The plaintiffs' argument about the Endorsement Decision focused on the minutes of the Council meeting on 23 August 2022, which the plaintiffs referred to as the 'Endorsement Minutes'. They argued that the Endorsement Minutes revealed no coherent, intelligible justification for the Endorsement Decision, but rather showed that the Council lacked any clear sense of the nature and scope of the statutory power it was exercising. The plaintiffs said that the Endorsement Minutes showed that the Council had done no more than identify a series of factors that may have been relevant, without reckoning with how those matters bore on its decision whether to endorse the Surf Coast SPP.

186 By reference to Part 3 of the Officers' Report, the plaintiffs said that the Council had failed to determine which of the various competing objectives should be given priority, and why. For that reason, the plaintiffs submitted that the Endorsement Decision was arbitrary and lacked an evident and intelligible basis.

187 The plaintiffs' argument was based on the premise that the minutes of the Council's meeting on 23 August 2022, including the Officers' Report, alone represented the Council's reasons for the Endorsement Decision. They argued that it was impermissible to refer to statements made by individual Councillors during the debate on the resolution to endorse the Surf Coast SPP. Otherwise, it would be impossible to scrutinise the rationality and hence the lawfulness of Council decision-making. The plaintiffs submitted that the mechanism for decision-making provided under the Local Government Act 2020 (Vic) confirms the primacy of the Council's resolution, and the record of that resolution in the minutes, as the Council's reasons for its decision. They referred to Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council[115] as an example of a case in which a council resolution was accepted as evidence of its reasoning process.

188 The Council's written submissions referred to provisions of the Local Government Act that prescribe its constitution and decision-making processes. The Council is a municipal council governed by the Local Government Act, a body corporate with perpetual succession,[116] and is constituted by its elected Councillors including the Mayor and the Deputy Mayor.[117] The Council drew attention to the following features of its decision-making:

(a) Where the Council is empowered to do any act, matter or thing, the decision to do the act, matter or thing is to be made by a resolution of the Council, which relevantly means a resolution made at a Council meeting;[118]

(b) A Council meeting is a meeting of the Council at which all Councillors are, subject to the Local Government Act, entitled to attend and vote to the exclusion of other persons;[119]

(c) A question before the Council at a Council meeting is determined by each Councillor present being entitled to one vote. The question will be determined in the affirmative by a majority of Councillors voting in favour of the question. Conversely, a question will be determined in the negative by a majority of Councillors not voting in favour.[120]

189 In its written submissions before trial, the Council did not dispute that the Officers' Report and Addendum recorded the Council's reasons for the Endorsement Decision.[121] However, it contended that those documents should be viewed in light of other relevant evidence, including that the Endorsement Decision was by majority resolution in accordance with the Local Government Act, that individual Councillors had also explained their reasons for voting for or against the resolution, and that the Council was not required by the Local Government Act or the Planning Act to provide reasons.

190 In oral argument at trial, the Council put forward six propositions about discerning reasons for the Endorsement Decision:

(a) First, there is no common law duty imposed on all administrative decision-makers to give reasons.

(b) Second, reasons are in some cases required by statute and can in some cases be requested under the Administrative Law Act 1978 (Vic). No such request was made of the Council in this case.

(c) Third, there are obvious logical and evidential difficulties in the provision of a single set of reasons from a multi-member body such as the Council.[122]

(d) Fourth, it can be difficult to determine reasons for decision by inference in a document-heavy decision making process.

(e) Fifth, in cases where no reasons are provided at the time of decision, inferences might be drawn about the reasons and reasoning process from the available evidence. However, the strength and precision of those inferences will depend on the evidence, the nature of the decision, the nature of the decision-making body, and all of the prevailing circumstances.

(f) Sixth, where (as here) there is no common law or statutory duty to provide reasons, a decision-making body cannot be criticised for not providing reasons, and no adverse inference should be drawn from the absence of a statement of reasons.[123]

191 Applying those six propositions to the facts of this case, the Council submitted that there was a raft of evidence from which inferences could be drawn about its reasons for the Endorsement Decision. It acknowledged that this submission qualified its earlier acceptance in its written submissions that the Officers' Report and Addendum recorded the Council's reasons for decision. The Council said that it was not possible to discern with complete confidence the reasoning of the Council as a collective body from the available body of evidence.

192 Turning to the plaintiffs' Ground 6, the Council drew a number of relevant legal principles from Minister for Immigration and Citizenship v Li.[124] It said that legal unreasonableness is a standard that is sensitive to both the statutory context and the facts of the particular case. In oral argument, the Council submitted that Endorsement Decision was unsuited to a challenge on the basis of legal unreasonableness for four reasons:

(a) First, the range of considerations that could properly be taken into account in making the Endorsement Decision were very broad, and included many issues upon which reasonable minds might differ.

(b) Second, there was no dominant consideration revealed by the statute, and no mandatory relevant considerations for the Council in reaching its decision under s 46AX.

(c) Third, s 46AX provides a binary choice - to endorse or not endorse.

(d) Fourth, there was no obligation on the Council to provide reasons for the Endorsement Decision.

193 The Council argued that the plaintiffs' submission on Ground 6 was premised on a method or style of decision-making that is inapposite to a multi-member, elected representative body such as the Council. It said that there was no proper basis to draw an inference that the Endorsement Decision was legally unreasonable in the sense alleged by the plaintiffs. In particular, the Council submitted that the contention that the Council did not engage with the relevant considerations in an intelligible or coherent way should be rejected because:

(a) There is no clear and definitive answer to the question of how various statutory objectives bore on the Endorsement Decision. It is necessarily a matter on which reasonable minds may differ.

(b) To the extent that the Council's reasons were embodied in the Officers' Report, they merely provide material from which arguments about the correctness of the Endorsement Decision may be crafted. The reasons are conceptually distinct from the Endorsement Decision and have no legal consequences in themselves. It is unsafe to assume that the Councillors were unable to form their own views with the assistance of the material provided to them, including the Officers' Report.

(c) The Officers' Report correctly identified that the Council needed to weigh the various factors, noting that the Surf Coast SPP would further some objectives but perhaps not further others.

(d) The Court should infer from the evidence about the decision-making process that all Councillors engaged in the necessary weighing of relevant and sometimes competing objectives.

194 In conclusion on this ground, the Council pointed out that legal unreasonableness as a ground of review is really concerned with identifying and rectifying abuses of power. It said that there was nothing abusive about the way it performed its role in relation to the Endorsement Decision, which it reached after an admirable process.

195 The Minister submitted that the limited nature of the power to endorse under s 46AX meant that it would be rare that such a decision will infringe the applicable standard of legal unreasonableness. Section 46AX requires the making of a binary decision - to endorse or not to endorse a statement of planning policy - which requires the decision-maker to do no more that consider the statement and accept or acknowledge that they are capable of being bound by or implementing it. The Minister argued that the function of endorsement does not require any reconsideration of the merits, or balancing of competing objectives, by any of the wide range of responsible public entities that may be called upon to endorse a statement of planning policy under Pt 3AAB of the Planning Act.

196 The Minister characterised the plaintiffs' argument on this ground as one that invited merits review. She said that the plaintiffs had not engaged with the task of establishing that the Endorsement Decision fell outside the range of acceptable outcomes. An assertion that the Council had failed to undertake a balancing of competing objectives was insufficient to satisfy the stringent standard of legal unreasonableness. Further, the Minister submitted that, to the extent that the Council was required to undertake a balancing exercise, the weight to be given to competing objectives was within the sole and exclusive discretion of the Council.

197 Endorsement of the statement of planning policy by each responsible public entity is a precondition to its approval by the Governor in Council under s 46AY. The Council was one of eleven different responsible public entities that endorsed the Surf Coast SPP, and it is curious that the plaintiffs have only impugned the Council's Endorsement Decision.[125]

198 Although endorsement is a necessary step towards the approval of a statement of planning policy, the nature of a decision to endorse is not spelled out in Pt 3AAB. Section 46AX(1) provides, in relation to endorsement of a statement of planning policy for a declared area:

The Minister must give a copy of the draft Statement of Planning Policy to each responsible public entity specified in the Statement for endorsement by the entity and the Minister responsible for that entity.

199 While the provision implicitly confers a binary discretion on a responsible public entity - to endorse or not endorse - it says nothing about how that discretion is to be exercised, the considerations to be taken into account, or how they are to be weighed. In circumstances where s 46AW requires consultation to have taken place with responsible public authorities in the preparation of a statement of planning policy, no scope is given for further input on the merits of the policy. As the Minister submitted, s 46AX(1) requires each responsible public entity to consider the statement of planning policy and to accept or acknowledge that they will be bound by it and, in some cases, be responsible for implementing it. That appears to be the purpose of the requirement for endorsement; I am unable to discern any other purpose from the language and context of the provision.

200 In that statutory context, and in circumstances where the other ten responsible public entities all endorsed the Surf Coast SPP, it could not realistically be argued that no reasonable responsible public entity could have made the Endorsement Decision. The Council made one of the two decisions available to it, and the plaintiffs did not suggest that outcome was manifestly unreasonable. Rather, they criticised the reasoning that underpinned the decision, on the basis that the Council did not reveal how it had balanced the competing objectives identified in Part 3 of the Officers' Report.

201 This argument was based on the flawed premise that the Council's reasons were embodied in the Officers' Report that was reproduced in the minutes of the Council's meeting of 23 August 2022. The premise was flawed because the Council's resolution endorsing the Surf Coast SPP did not refer to or adopt the Officers' Report. While it provides evidence of the matters that were considered by the Council in reaching the Endorsement Decision, it was not a statement of reasons for that decision.

202 The Council was not obliged to give reasons for the Endorsement Decision, either at common law or under the Planning Act or the Local Government Act. In contrast with cases such as East Melbourne Group Inc v Minister for Planning[126] and Bald Hills, the Council did not voluntarily provide a statement of reasons for the Endorsement Decision. There is therefore no question of the Council being confined to its statement of reasons, as was the Minister in East Melbourne Group.

203 In the absence of a formal statement of reasons, it may be possible to infer the reasons of an individual decision-maker from evidence that is probative of those reasons. That evidence will likely include the material that was before the decision-maker. In this case, I have the evidence that was before the Council when it was considering the Endorsement Decision, which included the Officers' Report.

204 However, the Council is a multi-member body that makes its decisions by resolution.[127] In this case, the Endorsement Decision was made by a majority resolution. Six Councillors voted in favour of the resolution, of whom four spoke at the meeting, each providing different reasons for their decision to vote in favour. Two Councillors voted against, with only one of those expressing her reasons for opposing the resolution during the debate. It is not possible to discern one single, unified set of reasons for the Endorsement Decision from that evidence. It is evident from the debate that different Councillors reached different conclusions about the weight to be given to the competing considerations. Those conclusions appear to me to be matters about which reasonable minds could reasonably differ.

205 At best for the plaintiffs, the Officers' Report represents some evidence of the Council's reasoning process. However, it was not, and was not intended to be, a statement of reasons for the Endorsement Decision, and I could not find error based on the Officers' Report alone.[128]

206 The plaintiffs' complaint that the Endorsement Decision was arbitrary is not sustainable, in light of the decision-making process that the Council in fact undertook. It received a written submission and heard oral submissions made on behalf of the plaintiffs. It had before it the final draft Surf Coast SPP, and the Officers' Report that identified the range of relevant statutory objectives that Councillors might take into account. I have viewed the video recording of the Council meeting on 23 August 2022, and reviewed the transcript of the debate, which do not sustain any suggestion that the Council acted capriciously or arbitrarily in making the Endorsement Decision. I accept the submission for the Council that its decision-making process was admirable, and that Endorsement Decision involved no abuse of the Council's power under s 46AX of the Planning Act.

Ground 7 - Did the Council misunderstand the law?

208 The plaintiffs also complained that the Council had misunderstood the law it was to apply in making the Endorsement Decision, as set out in Ground 7 of the amended originating motion:

1. The Endorsement Decision was affected by jurisdictional error because in making the Endorsement Decision, Council proceeded on the basis that:

24.1 "The question of whether or not Council should endorse the SPP is not a question of whether the SPP could be improved or whether Council would have preferred it if the SPP had been prepared in a different way";

24.2 "The Decision for Endorsement is not a decision as to whether in all respects the Council approves the SPP" whereas section 46AX(1) of the Planning Act required Council, as a responsible public entity, to determine whether to give support to the Surf Coast SPP.

1. Accordingly:

25.1 Council misunderstood the law that it was to apply in making the Endorsement Decision;

25.2 further or alternatively, Council constructively failed to exercise its jurisdiction by failing to determine whether to give support to the Surf Coast SPP.

209 At its heart, the plaintiffs' complaint underpinning this ground was that the Council was wrong to treat its decision whether to endorse the Surf Coast SPP as no more than a rubber stamping exercise. They relied on two particular statements in the Endorsement Minutes - that is, the Officers' Report reproduced in the minutes of the Council meeting on 23 August 2022. Those statements were:

(a) 'The question of whether or not Council should endorse the SPP is not a question of whether the SPP could be improved or whether Council would have preferred it if the SPP had been prepared in a different way'; and

(b) 'The Decision for Endorsement is not a decision as to whether in all respects the Council approves the SPP'.

210 The plaintiffs submitted that these statements revealed a misconception as to the nature and scope of the Council's power under s 46AX(1). By reference to the Macquarie Dictionary definition of 'endorse', the plaintiffs said that 'endorsement' in s 46AX(1) connoted authorisation. They also relied on the context of Pt 3AAB, in particular s 46AZJ, which states that a statement of planning policy must not be inconsistent with a range of other legislation and instruments unless the responsible Minister 'gives a specific written endorsement to the planning Minister authorising the inconsistency'. While the plaintiffs accepted that the decision whether to endorse a statement of planning policy is a binary decision, they said it is also a decision whether to authorise or give support to the policy, and requires more than merely formally acknowledging the statement and its contents. This authorisation and support was, the plaintiffs said, critical to the implementation of the statement of planning policy by responsible public entities.

211 The Council rejected the suggestions that it had misconceived the law and had done no more than rubber stamp the Surf Coast SPP. It said that it was patently clear from the evidence that the Council made its endorsement decision after engaging in an intellectual process which revealed an active consideration of the contents of the final draft SPP, its statutory task, and relevant considerations.

212 Further, the Council submitted, the statements relied on by the plaintiffs did not reflect any misconception of the Council's statutory task. It characterised the statements as attempts to assist the Council in distilling relevant principles to guide their decision-making, consonant with its statutory task.

213 In relation to the meaning of 'endorsement' in s 46AX(1), the Council contended that the word connoted some level of acceptance short of approval or authorisation. Further, it said that substituting some other word or phrase for 'endorsement' was unhelpful in determining whether the Council had fulfilled its statutory function of deciding whether to endorse the Surf Coast SPP. It said that it was simply not open on the evidence to find that the Council had acted as a rubber stamp, given the careful and comprehensive consideration it in fact gave to the Endorsement Decision.

214 The Minister took a different approach to this ground, contending that the Council's function under s 46AX(1) was limited, and did not amount to authorising or giving support to the Surf Coast SPP. She said that if the legislature had intended s 46AX(1) to require responsible public entities to authorise a statement of planning policy, it would have said so - as it had done in s 46AZJ.

215 In the Minister's submission, it would introduce significant inconvenience and unworkability to interpret s 46AX(1) as requiring every responsible public entity and relevant Minister to interrogate the merits of a statement of planning policy provided for endorsement. The Minister referred to the strict time frame for the approval of a statement of planning policy, reinforced by the subsequent introduction of a 28 day time limit for an endorsement decision under s 46AX.[129]

216 There are three reasons why this ground is not made out.

217 First, and most significantly, it is absolutely clear from the evidence that the Council did not approach the Endorsement Decision as a rubber stamping exercise. To the contrary, it gave the Surf Coast SPP thorough and careful consideration, including receiving substantial written and oral representations from the plaintiffs. The Officers' Report provided Councillors with a balanced assessment of the issues, directing their attention to relevant statutory objectives and other matters, and suggesting a methodology for considering them, without recommending which decision the Council should make. The resolution by which the Endorsement Decision was made was passed following a debate, during which individual Councillors expressed a range of views about the matters that influenced their vote. The Councillors evidently took their responsibility seriously, and there is not the slightest hint that they thought they could endorse the Surf Coast SPP without giving it proper consideration.

218 Second, the statements that the plaintiffs said revealed a misunderstanding of the law did not form part of any statement of reasons for the Endorsement Decision. Rather, the statements were part of the advice given to the Council by Council officers as to the question for its decision. The Officers' Report was not adopted by the Council to explain its decision, and it is not possible to say whether or in what way statements made in it influenced the votes of each individual Councillor.

219 Third, I am not convinced that the statements carry the meaning attributed to them by the plaintiffs, when they are read in the context of the Officers' Report as a whole. It was the case that the Council could either endorse the Surf Coast SPP, or refuse to endorse it. The plaintiffs accepted that the decision to be made under s 46AX(1) is a binary one. At that stage of the process, it was not open to the Council to suggest changes to the Surf Coast SPP, or to provide qualified endorsement. The Officers' Report correctly advised the Council that the question was whether the Surf Coast SPP was acceptable, not whether it was perfect in every respect. It went on to provide a framework for the Councillors to make that judgment for themselves, by reference to relevant statutory objectives. The Officers' Report did not advise the Council that endorsement was a mere formality or box-ticking exercise.

220 In light of those conclusions, it is not necessary to consider the finer shades of meaning of 'endorsement' in s 46AX(1). The plaintiffs have not shown that the Council did not fulfil its statutory function in making the Endorsement Decision.

222 The plaintiffs have not shown any error on the part of the Minister in relation to the Finalisation Decision or by the Council in making the Endorsement Decision. As a result, no question of consequential invalidity arises in relation to the Governor in Council's approval of the Surf Coast SPP on 25 October 2022.

223 I will make orders dismissing the proceeding, after hearing the parties on the question of costs.

[1] An area of 15.6 hectares occupied by a school was rezoned from Farming Zone to Special Use Zone.

[2] Now called the Department of Energy, Environment and Climate Action or DEECA.

[3] Planning and Environment Act 1987 (Vic) (Planning Act), s 1.

[4] Victoria, Parliamentary Debates, Legislative Assembly, 14 December 2017, 4528 (Richard Wynne, Minister for Planning) (Second reading speech).

[6] The urban growth boundary was introduced in 2002 by the Victorian Government in a strategic planning document titled Melbourne 2030: Planning for sustainable growth.

[9] Planning Act, s 3 (definition of 'declared area').

[12] Planning Act, s 3(1) (definition of 'public entity').

[13] Planning Act, s 3(1) (definition of 'responsible public entity').

[14] Section 46AX has since been amended by the Building and Planning Legislation Amendment Act 2023 (Vic), with effect from 1 March 2023.

[19] Planning Act, s 46AZD. The procedure for the ratification of a protected settlement boundary amendment to a planning scheme is provided in ss 46AZE, 46AZF, and 46AZG.

[21] 'Declaration of the Surf Coast as a distinctive area and landscape' in Victoria, Victoria Government Gazette, No G38, 19 September 2019, 1980-3.

[23] Declaration, 1980-1, as provided by s 46AO(2)(d)(ii) of the Planning Act.

[24] Declaration, 1983, as required by ss 46AO(2)(c) and 46AP(2) of the Planning Act.

[25] 'Extension to the period of declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes', in Victoria, Victoria Government Gazette, No G36, 10 September 2020, 1723.

[26] 'Declaration of Surf Coast as a distinctive area and landscape', in Victoria, Victoria Government Gazette, No G37, 16 September 2021, 1985-8.

[27] Distinctive Areas and Landscapes Standing Advisory Committee, Advisory Committee Report: Part 1 - Surf Coast Statement of Planning Policy, 25 June 2021, iii-iv.

[28] References to the 'PE Act' are to the Planning Act.

[29] Set out at [27] above.

[30] (1998) 194 CLR 355 (Project Blue Sky).

[31] Project Blue Sky, [94]-[98] (McHugh, Gummow, Kirby and Hayne JJ).

[32] [2011] FCAFC 94; (2011) 197 FCR 177, [18]-[20], [25], [28] (Rares and Katzmann JJ), [74], [77], [81], [94], [98] (Flick J) (Kutlu).

[33] Referring to TVW Enterprises Ltd v Duffy (No 2) [1985] FCA 251; (1985) 7 FCR 172, 179; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382; [2010] FCA 591, [44]-[45] (CEPU v QR Ltd).

[34] Planning Act, s 46AZB(2); cf Pt 3, Divs 1-2 and s 39(1)-(5).

[35] Referring to Kutlu, [37] (Rares and Katzmann JJ).

[36] Referring to CEPU v QR Ltd, [44].

[37] [2014] UKSC 56 (Moseley).

[38] Moseley, [37] (Lord Reed, Lady Hale and Lord Clarke agreeing).

[39] Moseley, [39]-[41] (Lord Reed, Lady Hale and Lord Clarke agreeing).

[40] Referring to Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247 (Dixon CJ, McTiernan, Taylor and Windeyer JJ).

[41] Referring to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [45] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [30]-[31], [33], [35], [38]-[39], [51] (Kiefel CJ, Gageler, Keane and Gleeson JJ); and the recent summary of the principles in EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 713, [28].

[42] Cf Planning Act, s 20(5), considered in Tok Holdings Pty Ltd v Minister for Planning [2021] VSC 470, [80]-[92].

[43] Tok Holdings, [81], rejecting reliance on the common law duty of fairness embraced by Lord Wilson in Moseley, [24]-[25] (Lord Kerr agreeing).

[44] Moseley, [38] (Lord Reed, Lady Hale and Lord Clarke agreeing).

[45] Cf Moseley, [39] (Lord Reed, Lady Hale and Lord Clarke agreeing).

[46] The plaintiffs made an initial written submission to the Committee dated 29 January 2021, a 75 page written closing submissions dated 16 April 2021, and a further 22 page written closing submission dated 28 April 2021.

[47] Amended originating motion, [8]. The impugned conclusions are set out at [91] below.

[48] Amended originating motion, [9].

[49] Amended originating motion, [10].

[50] Referring to Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [11] (Kiefel CJ), [52] (Gageler J), [84] (Nettle and Gordon JJ), [135] (Edelman J); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21, [17].

[51] Referring to Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2012) 237 FCR 1, [12] (Allsop CJ).

[52] Department of Environment, Land, Water and Planning, Surf Coast Statement of Planning Policy: Settlement Background Paper (Draft background paper, November 2020).

[53] Department of Environment, Land, Water and Planning, Victoria in Future 2019 (Report, July 2019).

[55] Referring to Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153], [171]-[175]; Arnold v Minister Administering the Water Management Act 2000 [2013] NSWLEC 73, [129].

[56] Economic expert witness statement of Justin Ganly dated 12 October 2022 (Ganly report).

[57] Justin Ganly, Economic Expert Witness Statement - Draft SPP and landscape controls to implement Surf Coast DAL (Report, 4 March 2021).

[60] Expert planning witness statement of Rob Milner dated 24 October 2022 (Milner report).

[66] Referring to Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 685 (Deane J, Evatt J agreeing); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, [4] (Gleeson CJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [103] (Crennan and Bell JJ); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366 (Deane J); Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307, [84] (Jagot J, Nicholas J agreeing).

[67] Referring to EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409, [120].

[68] Mackenzie, [153], [171]-[174].

[69] Reasons, [47], set out in context at [48] above.

[72] In the sense discussed in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70; Minister for Immigration and Citizenship v SZIAI [2009] HCATrans 165; (2009) 259 ALR 429, [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, [36].

[73] FRA is an acronym for 'future residential area'.

[75] See [21], [25] and [26] above.

[76] Referring to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Duffy CJ and Dixon J); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Saraswati v R [1991] HCA 21; (1991) 172 CLR 1.

[77] Referring to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177-8; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [71]-[72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[78] Referring to MZAPC, [2], [39], [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [100]-[101] (Gordon and Steward JJ), [164] (Edelman J).

[79] Referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[80] Referring to Reasons, [39]-[43].

[83] Referring to Anthony Hordern, 7 (Duffy CJ and Dixon J); Nystrom, [59] (Gummow and Hayne JJ); Plaintiff S4/2014, [43]; Saraswati, 23 (McHugh J, Toohey J agreeing).

[84] Planning Act, s 4(1)(a) ('the ... sustainable use, and development of land'), s 4(1)(b) ('the protection of natural ... resources and the maintenance of ecological processes and genetic diversity'), and s 4(1)(d) (conserve and enhance ... areas ... which are of ... aesthetic ... or special cultural value).

[85] Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263, [41]; see also Wu Shan Liang, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[86] It is therefore unnecessary to determine whether the Minister did so because he was acting as a planning authority and was bound by s 12(1)(a) to implement the objectives of planning in Victoria, or simply because he considered those objectives to be a relevant consideration.

[87] See Reasons, [30], [39], [41]-[42], [45].

[89] The plaintiffs did not pursue Ground 4, which alleged a failure to take into account housing affordability: see Transcript, 8 August 2023, 8:5-7.

[90] The full text of these statements is set out at [143]-[147] below.

[91] This article was not referred to in the amended originating motion, but was the subject of evidence and argument at trial.

[92] The statements described in paragraphs 18.2 and 18.3 were the Minister's media release of 30 October 2018 and the Geelong Advertiser article of 16 March 2019. Particulars of allegation 18.9 referred to Ministerial Brief MBR045737, signed 27 March 2022, Attachment 4 (Spring Creek Slide Pack - Options Risk and Benefits Analysis).

[93] Referring to Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [11]-[14] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

[94] Referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [71]-[72] (Gleeson CJ and Gummow J).

[95] Referring to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438, [68] (McHugh J); Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, [20] (Kiefel, Bell, Keane and Nettle JJ), [59] (Gageler J); McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504, [23] (Spigelman CJ).

[96] Jia Legeng, [63] (Gleeson CJ and Gummow J).

[97] Referring to Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86, [29]. In that case the Minister conceded that the decision was 'infected by apprehended bias', and the parties had made a joint submission that the decision should be quashed on that basis. In oral argument the plaintiffs also referred to Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources [2023] FCA 809, [171]-[176].

[98] Referring to Jia Legeng, [72] (Gleeson CJ and Gummow J).

[99] Referring to Jia Legeng, [122] (Kirby J).

[100] [2023] FCA 86, noting that Asset Energy was a case involving apprehended, not actual, bias.

[101] Referring to Ebner, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[102] Referring to Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1999) 170 CLR 70, 87 (Mason CJ and Brennan J).

[103] Referring to Isbester, [59] (Gageler J); QVFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65, [38] (Kiefel CJ and Gageler J).

[104] Referring to Jia Legeng, [63], [102] (Gleeson CJ and Gummow J), [187] (Hayne J); Hot Holdings, [50] (Gaudron, Gummow and Hayne JJ), [70] (McHugh J).

[105] Referring to Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95, [160].

[106] Referring to Re MacTiernan; Ex parte Coogee Action Coalition Inc [2005] WASCA 109, [83] (McClure JA, Wheeler and Pullin JJA agreeing); McGovern, [22]-[23] (Spigelman CJ).

[107] Referring to British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, [44] (French CJ).

[108] Referring to Jia Legeng, [102] (Gleeson CJ and Gummow J).

[109] Re MacTiernan, [83] (McClure JA, Wheeler and Pullin JJA agreeing). See also McGovern, [22]-[23] (Spigelman CJ).

[110] See the media releases of 27 September 2018 and 30 October 2018, set out at [143] and [144] above.

[111] Planning Act, s 46AT; see further [76] above.

[112] Planning Act, ss 46AZD(2), 46AZE(3).

[113] See [163] above.

[114] Mr Cicero is a partner of Best Hooper, solicitors for the plaintiffs; Mr Shephard is a director of Zeally Investments Pty Ltd, the first plaintiff, and Mr Welsh is a director of Duffields Road Pty Ltd, the second plaintiff.

[115] [2020] VSC 512, [87], [92], [94], [105], [108], [116].

[116] Local Government Act 2020 (Vic), s 14(1).

[117] Local Government Act, ss 12 and 13(2).

[118] Local Government Act, s 59.

[119] Local Government Act, s 61(1).

[120] Local Government Act, s 61(5).

[121] The Addendum was Annexure 3 to the Officers' Report, described above at [171(c).

[122] Referring to IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, [64]-[65] (Kirby J); Khabbaz v State Planning Commission (2023) 254 LGERA 165, [181] (Bleby JA).

[123] Referring to Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173, [25], [36] (French CJ, Bell, Keane and Gordon JJ).

[124] [2012] HCA 61; (2013) 249 CLR 332, [22], [25], [30], [66], [76] (Li).

[125] The other responsible public authorities that endorsed the Surf Coast SPP were Barwon Water; Southern Rural Water; the Corangamite Catchment Authority; the Great Ocean Road Coast and Parks Authority; Parks Victoria; the Head, Transport for Victoria; VicTrack; the City of Greater Geelong; the Victoria Planning Authority; and the Secretary within the meaning of the Conservation, Forests and Lands Act 1987 (Vic). Five separate Ministers responsible for these public entities also endorsed the Surf Coast SPP: the Minister for Water, the Minister for Environment and Climate Action, the Minister for Transport Infrastructure, the Minister for Local Government, and the Minister for Planning.

[126] [2008] VSCA 217; (2008) 23 VR 605.

[127] Local Government Act, ss 12, 13, 59.

[128] Plaintiff M64/2015, [25] (French CJ, Bell, Keane and Gordon JJ).

[129] Planning Act, s 46AX(3), introduced by the Building and Planning Amendment Act 2023 (Vic).