Victorian Civil and Administrative Tribunal|2010-05-12

Smith v Hobsons Bay CC (includes Summary) (Red Dot) [2010] VCAT 668 (12 May 2010)

The practice of VCAT is to designate cases of interest as 'Red Dot Decisions'. A summary is published and the reasons why the decision is of interest or significance are identified. The full text of the decision follows. This Red Dot Summary does not form part of the decision or reasons for decision.

Application of Charter of Human Rights and Responsibilities Act 2006 in a planning context

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

LAW, PRACTICE OR PROCEDURE - issue of interpretation or application

Charter of Human Rights and Responsibilities Act 2006; application of Charter; whether cl 54.04-6 of planning scheme dealing with overlooking compatible with human right to privacy; whether decision to delete a condition requiring a balcony screen would breach Charter; interpretation and application of ss 13 & 7(2) of Charter.

This decision relates to the application of the Charter of Human Rights and Responsibilities Act 2006 in a planning context, particularly the human right to privacy protected under s 13 of the Charter. An objector claims that a decision to delete a permit condition requiring a balcony screen would interfere with that right and be in breach of the Charter, and has raised this as a question of law requiring separate determination. The decision also considers, albeit more briefly, the potential impact on property rights protected under s 20 of the Charter.

the right to privacy under s 13 is qualified. A person has the right not to have his or her privacy or home unlawfully of arbitrarily interfered with.
s 7(2) of the Charter also recognises that reasonable limits may be placed on a protected right, having regard to relevant factors including the nature of the right and purpose and extent of the limitation.

In considering whether cl 54.04-6 of planning schemes, dealing with overlooking, is compatible with the human right to privacy protected under the Charter, the decision applies the 3-step process recently endorsed by the Court of Appeal in R v Momcilovic [2010] VSCA 50. Having regard to the structure of the planning regulatory framework in Victoria, the relevant clause is considered not to be either unlawful or arbitrary and, even it was, it imposes a reasonable, proportionate and justifiable limitation on the right to privacy.

In considering whether a decision to delete or modify the condition requiring a balcony screen would breach the Charter, the decision adopts and applies a somewhat similar 3-step process.

Step 1 is to consider if a human right protected under the Charter is engaged by the planning proposal for which a decision must be made. In considering this, the scope of that human right must be considered, including any specific qualifications or limitations on that right in the Charter.
Step 2 is to consider whether any particular decision or outcome would be incompatible with that human right.
If so, Step 3 is to apply s 7(2) of the Charter to determine whether any limitation or restriction on the right is justified as part of the decision. This may include a consideration of alternative decisions that have a lesser impact on the human right under consideration.

The overall objective of these steps is for the decision maker (i.e. the Tribunal in a review proceeding) to comply with s 38 of the Charter by giving proper consideration to any relevant human right as part of the decision making process.

Although the Charter right to privacy is potentially engaged in this case, any decision in relation to the condition that has proper regard to the the planning regulatory framework would not be unlawful or arbitrary. Even if there was a potential interference with the right to privacy, the proper exercise of a planning discretion in accordance with that framework will likely reflect a reasonable, proportionate and justifiable limitation on the right to privacy.

The decision also makes some general observations on the application of the Charter in a planning context. The Charter does not manifestly change the role and responsibility of the Tribunal. Implicitly, the Tribunal already considers the reasonableness of potential infringements on a person's privacy and home in its day-to-day decision making, in dealing with issues such as overlooking (as in this case), overshadowing, noise, environmental constraints and a variety of other issues and potential amenity impacts within the planning regulatory framework. That framework recognises that reasonable restrictions may be placed on the use and development of land, and that there may on occasion be reasonable and acceptable off-site impacts on others. There is an emphasis on performance based policies, objectives and guidelines that deal with a range of potential amenity impacts on a person's privacy and home. Provided these issues are properly considered, it would be a rare and exceptional case where the exercise of a planning discretion in accordance with the regulatory framework is not Charter compatible. Each case however turns on its own facts and circumstances.

Planning and Environment Act 1987 s 80; Victorian Civil and Administrative Tribunal Act 1998 Schedule 1 cl 66; referral of question of law; Charter of Human Rights and Responsibilities Act 2006 ss 7, 13, 20, 32, 28; application of Charter; whether cl 54.04-6 of planning scheme compatible with human rights; whether decision to delete a permit condition for a balcony screen would breach right to privacy under Charter; whether interference with right to privacy unlawful or arbitrary; whether decision would be reasonable and justified; issues for Tribunal to consider under Charter.

Smith v Hobsons Bay CC (includes Summary) (Red Dot) [2010] VCAT 668

On the question of law raised in this proceeding, I decide as follows:

Insofar as it is necessary to decide the issue, cl 54.04-6 of the Hobsons Bay Planning Scheme is not incompatible with the Charter of Human Rights and Responsibilities Act 2006 . 2. A decision to maintain, modify or delete the planning permit condition requiring screening of the first floor balcony on the subject land, having regard to cl 54.04-6 and other relevant planning considerations, would not breach Mr Davey's qualified right to privacy under s 13 of the Charter, as the interference (if any) with that right would not be 'unlawful' or 'arbitrary'.

Alternatively, having regard to s 7(2) of the Charter, even if there may be an interference with Mr Davey's right to privacy, a decision to modify or delete the condition (including a decision that has the effect of not requiring a balcony screen) would be justified as a reasonable and proportionate response to the issue of possible overlooking, having regard to the planning regulatory framework within which the discretion is to be exercised and provided proper consideration is given to the relevant provisions of that regulatory framework, including cl 54.04-6.
The proceeding is remitted to Member Sibonis for final decision, having regard to the decision on the question of law.

This decision deals with a question of law relating to the application of the Charter of Human Rights and Responsibilities Act 2006 (Charter).
Gary Stooke owns land in Spotswood. Through his architect, Rodger Smith, he has obtained a planning permit from Hobsons Bay City Council for external alterations to his house, including a pergola and first floor balcony.
Mr Smith has made application on Mr Stooke's behalf to review a condition on the permit, imposed by the Council, requiring screening of the balcony to prevent overlooking of John and Sharon Davey's property next door. Through the application, he seeks to modify the permit condition and delete the requirement for a balcony screen facing Mr Davey's property to the east.
Mr Davey claims that the proposed balcony, if not screened, will be in breach of the Charter. He has raised this formally, as a question of law in the merits hearing before Member Sibonis, and he has not agreed to Member Sibonis (who is not a lawyer) deciding that question. The question of law has therefore been referred to me for separate determination.
The parties did not refer me to any case law relevant to their respective submissions on the question of law. I have nonetheless referred to a number of recent cases that set principles within which I believe the question of law must necessarily be considered.

The Charter of Human Rights and Responsibilities Act 2006 seeks to protect and promote a number of specified human rights. These rights include the following:
- a right to privacy, under s 13 of the Charter: A person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with.
- property rights, under s 20 of the Charter: A person must not be deprived of his or her property other than in accordance with law.
'Privacy' is a broad and somewhat nebulous concept that has not been defined for Charter purposes, although it may include elements of physical, geographical or information privacy. In combination with the references to 'family' and 'home' in s 13, the human right to privacy would seem to clearly extend to what has sometimes been described as 'territorial privacy', through setting limits on permissible intrusion into a person's domestic environment. It could thus cover unwanted surveillance or, in a planning context, the unwanted overlooking of a person's home[1].
It is in this context that Mr Davey claims that his right to privacy will be breached if Mr Stooke's balcony is not screened to prevent the overlooking of his property. He considers that, without screening, there will be a view from the balcony in through the pergola area on the west side of his property, the rear veranda of his home, and also into his backyard. Conversely to this issue of privacy, it is arguable that the wider property rights of Mr Stooke may be interfered with if he is deprived of the opportunity to use and develop his land as he wishes i.e. by constructing the balcony without a screen to Mr Davey's property.
The rights under both ss 13 and 20 of the Charter are therefore potentially engaged in this case, although clearly the right to privacy asserted by Mr Davey is the main human right in issue before me.
The human rights protected under ss 13 and 20 are not absolute. Section 7(2) of the Charter contains a general limitations clause, as follows:

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including -

(b) the importance of the purpose of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

VCAT can determine certain issues under the Charter when they legitimately arise in proceedings within its jurisdiction. In the exercise of its planning jurisdiction, the Charter therefore applies human rights into the decision making role of the Tribunal by two principal methods[2]:
- s 32 of the Charter requires statutory provisions to be interpreted compatibly with human rights, insofar as it is possible to do so consistently with that purpose. By reference to s 6(2)(b) of the Charter, the Tribunal is effectively bound to consider the Charter in interpreting the planning regulatory framework under the Planning and Environment Act 1987 and planning schemes.
- s 38 of the Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. A responsible authority under the Planning and Environment Act 1987 (i.e. Hobsons Bay Council in this case) is a 'public authority' for this purpose, when it decides whether to issue a planning permit or imposes conditions on the permit. In exercising its review jurisdiction over such a decision, the Tribunal stands in the shoes of the responsible authority. It is therefore also bound to consider the Charter and act compatibly with it.
I will deal with these two matters in turn.

Is the planning regulatory framework regarding 'overlooking' incompatible with the Charter?

Clause 54 of all planning schemes in Victoria (including the Hobsons Bay Planning Scheme that applies in this case) applies the ResCode provisions for single dwellings. Specifically, cl 54.04-6 sets out objectives, detailed standards and decision guidelines intended to deal with overlooking.
From Mr Davey's submission, it is not clear to what extent he is contending that this regulatory framework is incompatible with the Charter. I will nonetheless deal with the matter briefly, as it is also relevant to the second (and more direct) issue he raises; namely, whether a decision to delete or modify the permit condition requiring balcony screening would be in breach of the Charter.
In R v Momcilovic[3], the Court of Appeal recently outlined a 3-step process in order to consider whether a statutory provision infringes a Charter right:
- Step 1 is to ascertain the meaning of the provision by applying s 32 of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984.
- Step 2 is to consider, whether so interpreted, the relevant provision breaches a human right protected by the Charter.
- If so, Step 3 is to apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.
For the purpose of 'Step 1' in this case, there is no ambiguity in the meaning of cl 54-04-6 of the planning scheme. Its stated objective is to limit views into existing secluded private open space and habitable room windows of neighbouring properties. The standard set by the clause to meet this objective is that a balcony with a direct view into existing secluded private open space and habitable room windows within 9 metres (measured horizontally) should utilise one of a range of potential mitigation measures, including screening, obscure glazing, changes to sill heights etc. The option of screening the balcony therefore exists as a discretionary design response, albeit to 'limit' overlooking rather than necessarily preventing it completely. No design response is required for potential overlooking beyond 9 metres, although this may still be a relevant amenity impact requiring consideration under the decision guidelines.
Under 'Step 2', I do not consider that cl 54.04-6 infringes on Mr Davey's right to privacy under s 13 of the Charter. Section 13 only provides that a person has the right not to have his or her privacy, family or home 'unlawfully' or 'arbitrarily' interfered with, and cl 54.04-6 is neither unlawful or arbitrary. Overlooking of a neighbour's property is not of itself unlawful[4] and, indeed, the clause seeks to generally support a qualified right to privacy. The clause creates an ambit of intended regulatory discretion within which some interference with the right to privacy is allowed. However, this discretion is not arbitrary, but considered against an appropriate objective, standard and decision guidelines that are responsive to the circumstances of a particular site and particular planning decision.
To the extent s 20 may also be a relevant Charter right, I do not consider that cl 54.04-6 infringes on the property rights of either Mr Stooke or Mr Davey. Even if it affects a wider property right under the Charter at all (which it debateable), such as depriving the opportunity to reasonably enjoy one's property, s 20 only provides that a person must not be deprived of property 'other than in accordance with law'. Neither party here is deprived of any legal or proprietary interest in land, or the ability to use and develop that land in accordance with the planning regulatory framework operating in Victoria. The imposition of reasonable restrictions on the use and development of land under this framework, and in particular the ResCode provisions in clause 54 that are relevant here, is clearly in accordance with the law.
Having decided under 'Step 2' that no Charter right under ss 13 or 20 is infringed, it is unnecessary to move to Step 3. However, even if (contrary to my view) cl 54.04-6 does in some way breach Mr Davey's right to privacy under s 13 or the property rights of either party under s 20, the limit imposed on those rights by cl 54.04-6 is justified. Having regard to the matters in s 7(2) of the Charter, the obligation under clause 54.04-6 to consider the issue of overlooking and implement any appropriate mitigation measures (as part of a design response and planning decision within the broader planning regulatory framework) allows for a proportionate and reasonable response such that any interference with these rights is justified.
It follows that cl 54.04-6 of the Hobsons Bay Planning Scheme is not incompatible with the Charter.

Would a decision to allow the proposed balcony, if not screened to prevent overlooking, be in breach of the Charter?

As indicated earlier, s 38 of the Charter makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. This is Mr Davey's primary concern in the question of law he has posed, and raises the direct application of the Charter to his circumstances, rather than its indirect application through the interpretation of planning laws.
In considering whether a particular planning decision would breach the Charter, a somewhat similar 3-step process applies:
- Step 1 is to consider if a human right protected under the Charter is engaged by the planning proposal for which a decision must be made. In considering this, the scope of that human right must be considered, including any specific qualifications or limitations on that right in the Charter.
- Step 2 is to consider whether any particular decision or outcome would be incompatible with that human right.
- If so, Step 3 is to apply s 7(2) of the Charter to determine whether any limitation or restriction on the right is justified as part of the decision. This may include a consideration of alternative decisions that have a lesser impact on the human right under consideration.

The overall objective of these steps is for the decision maker to comply with s 38 of the Charter by giving proper consideration to any relevant human right as part of the decision making process.

For Step 1, Mr Davey claims that his right to privacy under s 13 of the Charter will be breached if a decision is made by Member Sibonis in the main proceeding to delete the planning permit condition requiring screening of Mr Stooke's proposed balcony. I note that Mr Davey has relied solely upon a breach of his right to privacy under s 13. I will not therefore deal with property rights under s 20 of the Charter in this context, save to say that I do not consider any breach of s 20 arises. A decision to maintain, delete or modify the condition requiring balcony screening does not deprive either party of any property and, even if it did, it would be 'in accordance with law' under the planning regulatory framework. It would also be a reasonable and proportionate response to the issue if decided in accordance with cl 54.04-6 of the planning scheme and other relevant planning considerations arising under the Planning and Environment Act 1987 and Hobsons Bay Planning Scheme.
As a threshold issue, it is necessary to form an objective view about whether there is actual overlooking of Mr Davey's land from a town planning perspective and/or the extent of that overlooking. I understand that screening is proposed from the balcony to properties to the north and south where overlooking may be an issue, but that Mr Smith has called into question the extent of any material overlooking of Mr Davey's land to the east and the need for screening in that direction. Member Sibonis has conducted a site inspection, and there is evidence before him including photographs and other material. These are therefore factual matters for Member Sibonis to determine. It is only if he forms a view that there would be actual overlooking that there is a potential breach of Mr Davey's right to privacy at all.
As indicated, it is necessary to look at the scope of the right to privacy protected by the Charter. Earlier in these reasons, I noted that the human right to privacy would cover matters of 'territorial privacy' including, in a planning context, the unwanted overlooking of a person's home. However, from Mr Davey's submission, it would seem that he has looked at s 13 in absolute terms - i.e. that any unwanted overlooking of his property is a breach of his right to privacy and therefore can't be allowed to occur. This is not correct. As indicated earlier, the right to privacy under s 13 is itself expressed in qualified terms. The protected right is that a person's privacy must not be 'unlawfully' or 'arbitrarily' interfered with.
For Step 2, it follows that a decision to delete or modify the planning permit condition requiring screening of Mr Stooke's proposed balcony would not be in breach of the Charter if the interference with Mr Davey's privacy is not unlawful or arbitrary. This raises a number of issues in this case.
Under the dichotomy that exists in planning between 'development' and 'use', the permit and permit condition under consideration in this proceeding technically relate only to the construction of the balcony, and not its use, yet it is the use of the balcony that might arguably lead to an overlooking of Mr Davey's property. Mr Stooke's use of his land for normal residential purposes is 'as of right'. However, given the objective and standards of cl 54.04-6 of the planning scheme dealing with overlooking (discussed above), the use of the balcony and its potential impacts are still a relevant planning consideration in determining what decision should be made about the development of the balcony. It would be unduly simplistic, in my view, to ignore the future use of the balcony in considering whether a human right to privacy is breached by a purely 'development' based decision.
Secondly, the possible overlooking of Mr Davey's property is not of itself unlawful. It will often be a function of topography or an outcome of built form that the ability to look into someone else's property is unavoidable. Possible charter issues aside, the overlooking of another person's land does not offend any statute that I am aware of. Similarly, in terms of the common law, the occasional overlooking of a neighbour's property from a window or balcony would not be unlawful unless it comprised constant 'watching' or surveillance to an exceptional extent that amounted to an actionable nuisance[5]. It follows that the interference with Mr Davey's right to privacy from overlooking is not unlawful simply by reason of a possible decision to allow the balcony without a screen. It cannot be presumed that Mr Stooke intends to harass Mr Davey through constant surveillance amounting to nuisance. Indeed, for the purposes of a planning decision in an orderly society, I would have thought the contrary would be presumed.
Furthermore, the possible overlooking of Mr Davey's property is not an 'unlawful' interference with his right to privacy to the extent it is envisaged by the law as a possible outcome of the application of relevant planning considerations including cl 54.04-6 of the planning scheme - a law which itself complies with the Charter[6].
Moreover, the interference with Mr Davey's right to privacy is not 'arbitrary' if it results from the reasonable exercise of an intended regulatory discretion, considered against relevant planning scheme policies and provisions including the appropriate objective, standard and decision guidelines in cl 54.04-6 that deal specifically with overlooking. A decision to maintain, modify or delete the condition is not random and arbitrary, particularly given cl 54 generally requires that decisions take account of the particular circumstances of a particular site. The decision would thus be 'governed by clear pre-existing rules where the circumstances and procedures adopted are predictable and foreseeable to those to whom they are applied'[7]. Mr Davey also has had third party rights of objection, enabling him to participate in the way in which the discretion under cl 54.04-6 may be applied in his case, and he is a participant in the current review process.
It follows that there may be some overlooking of Mr Davey's property from the proposed balcony, if unscreened, that would still not amount to an unlawful or arbitrary interference with Mr Davey's right to privacy. In such event, there will be no breach of s 13 of the Charter evident from this 'Step 2' stage of the analysis. I am unable to finally determine this, although it would seem quite likely that this is the case. It is a matter for Member Sibonis, and I do not presume to decide the planning merits of the main proceeding. Member Sibonis may decide a screen or some other mitigation measure on the balcony is required, and maintain the condition imposed by the Council. However, if he is satisfied from the evidence and his site visit that the potential for overlooking is perceived (rather than real), or only to a relatively minor extent or of less sensitive areas of Mr Davey's property, he may form a 'merits' view that the balcony screen is not required. In considering this, it will be relevant for Member Sibonis to consider the matters in cl 54.04-6, including whether the potential overlooking is of secluded private open space or habitable room windows, and whether it is within 9 metres horizontal distance of the balcony. A decision properly considering and applying these factors, along with any other relevant planning considerations and decision guidelines, would not breach s 13 as there would be no 'unlawful' or 'arbitrary' interference with Mr Davey's qualified right to privacy.
Having decided under 'Step 2' that no right to privacy under s 13 would be breached by a decision to maintain, modify or delete the relevant condition, it is unnecessary to move to Step 3. However, even if (contrary to my view) a decision to modify or delete the condition (including a decision that has the effect of not requiring a balcony screen) may in some way interfere with Mr Davey's right under s 13, I consider that the interference would be justified. It is therefore worth looking at Step 3 as an effective fall-back position to the primary view I have expressed.
Under Step 3, having regard to the matters in s 7(2) of the Charter, a decision to delete or modify the permit condition requiring screening may still be a justifiable interference with the right to privacy. I have set out the full text of s 7(2) earlier in these reasons. It is perhaps important to note that, for a decision to reasonably limit or restrict a human right, the limitation must be demonstrably justified by the party asserting the reasonableness of the limitation, and will commonly require cogent evidence commensurate with the issue in question[8]. [Here Member Sibonis has had evidence on the issue of overlooking, submissions from the parties (including the submission of the architect Mr Smith supporting the modification of the condition), and has conducted a site inspection]. The limitation must also be reasonable, in the sense of being a proportionate and non-excessive response to the issue in question.
From the material already on the Tribunal file, it is clear that this is not a clear-cut case where the potential for overlooking is so extreme that no Council or Tribunal, acting reasonably, could come to a view that screening of the balcony was not required[9]. If this was the case, a decision not to require screening would be manifestly unreasonable, and would not fall within the general limitations clause in s 7(2) of the Charter.
As with most planning matters before the Tribunal, this is a case that falls for the exercise of discretion. This exercise of discretion must have regard to relevant planning considerations, including the policies and provisions of the Hobsons Bay Planning Scheme, and here also including specific provisions such as cl 54.04-6 dealing with overlooking. Although a person's right to privacy in his or her home is fundamentally important, and this is now reinforced by the Charter, the effective application of the planning regulatory framework in Victoria is also important. That framework seeks to balance public and private rights, and seeks to provide for the fair, orderly and sustainable development and use of land by imposing certain restrictions on the use and development of land that most would consider justified in a free and democratic society. The planning framework specifically attempts to deal with overlooking, and thus expressly recognises the right to reasonable privacy. Given it would be impossible to prevent all possible overlooking in an urban built environment, the framework provides a balance in dealing with competing rights and interests by introducing mechanisms to limit overlooking of secluded private open space and habitable room windows, particularly within 9 metres.
Having regard to the relationship between the right to privacy and the potential outcomes envisaged by this planning framework, I consider that any decision to modify or delete the relevant permit condition that may be reasonably open to Member Sibonis on the evidence and submissions before him would fall within the general limitations clause in s 7(2) of the Charter. Any decision that properly considers all relevant planning considerations, including in this case cl 54.04-6 of the Hobsons Bay Planning Scheme, would in my view represent a reasonable, proportionate and justifiable limitation on Mr Davey's right to privacy.
It follows that a decision to delete or modify the planning permit condition requiring screening of Mr Stooke's proposed balcony would not be in breach of the Charter. As I have indicated, the ultimate 'planning merits' decision is one properly left to Member Sibonis.

Mr Davey also contends that certain other persons would be in breach of the Charter if the balcony is ultimately constructed without a screen, including Mr Smith for having submitted the architectural plans to the Council. I do not consider that a breach arises in such circumstance - indeed, Mr Smith probably enjoys a right to freedom of expression. In any event, the Charter does not create any additional right to legal action for breach of the Charter, and ordinary legal remedies apply. The Tribunal's role in this proceeding is to focus on the matters under ss 32 and 38 of the Charter outlined above, and to make a decision that takes into account and respects the human rights protected by the Charter.

The Charter is now an important feature of Victorian law and the Tribunal must have proper regard to the human rights protected under it. In the Planning List of the Tribunal, this will often require a Tribunal member to consider the potential interference with a person's privacy or home. However, this is not something manifestly different to what is already required to be considered by a Tribunal member making a planning-based decision. Implicitly, the Tribunal considers the reasonableness of potential infringements on a person's privacy and home in its day-to-day decision making, in dealing with issues such as overlooking (as in this case), overshadowing, noise, environmental constraints and a variety of other issues and potential amenity impacts within the planning regulatory framework. That framework recognises that reasonable restrictions may be placed on the use and development of land, and that there may on occasion be reasonable and acceptable off-site impacts on others. There is an emphasis on performance based policies, objectives and guidelines that deal with a range of potential amenity impacts on a person's privacy and home.
Although it is not necessary to finally decide the issue more broadly than as stated in these reasons, it is perhaps worth commenting that, given:
- the way in which the right to privacy is qualified in s 13 of the Charter (i.e. interference with the right may not be unlawful or arbitrary);
- the reasonable limits on the righto privacy that might be justified in a planning context by reference to s 7(2) of the Charter; and
- the structure of the planning regulatory framework and planning schemes in Victoria-

- it would be a rare and exceptional case where a planning scheme provision was not Charter compatible, or that a planning discretion properly exercised within the limitations of the planning regulatory framework would be viewed as anything other than a lawful, reasonable, proportionate and justifiable limitation on a person's right to privacy. Each case will however turn on its own facts and circumstances.

My more limited decision on the specific question of law in this case is set out in the order that accompanies these reasons. I propose to refer the matter back to Member Sibonis to finally decide the proceeding, after considering this decision on the question of law.

[1] I will deal further with this issue later in these reasons

[2] following Metro West v Sudi [2009] VCAT 2025 per Justice Bell P at [33]

[3] [2010] VSCA 50 (Court of Appeal) at para 35.

[4] I will deal further with this issue later in these reasons.

[5] Raciti v Hughes (unreported, Young J, NSW Supreme Court, 18 October 1995), referred to in the Privacy Law and Policy Reporter at [1996] PLPR 8 , following Bernstein v Skyviews [1977] 1 QB 479.

[6] generally following Human Rights Committee's 'General Comment 16' on article 17 of the International Covenant on Civil and Political Rights (ICCPR) upon which s 13(a) of the Charter was based - see the discussion in Director of Housing v Sufi [2010] VCAT 328 per Justice Bell P at [63]-[74]

[7] following R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148 at [34] and [92], referred to in Director of Housing v Sufi [2010] VCAT 328 per Justice Bell P at [74].

[8] following DAS v Victorian Human Rights and Equal Opportunity Commission [2009] VSC 381 per Warren CJ.

[9] e.g. tantamount to 'Wednesbury' unreasonableness under established administrative law principles.

Human Rights and Responsibilities Act 2006

Environment Act 1987

Civil and Administrative Tribunal Act 1998

Legislation Act 1984

Smith v Hobsons Bay CC

At a glance

Court

Decision date

Source

Judgment (47 paragraphs)

Smith v Hobsons Bay CC (includes Summary) (Red Dot) [2010] VCAT 668 (12 May 2010)

Smith v Hobsons Bay CC (includes Summary) (Red Dot) [2010] VCAT 668 (12 May 2010)

Parties

Legislation Cited (4)