The Boyse Estate v Hume CC [2007] VCAT 237

1 The application by the Department of Transport and Regional Services to be removed as a party from the proceeding and for a direction to correct the Tribunal's record in this respect is refused.

2 The application by the Department of Transport and Regional Services for a ruling that the Commonwealth is not a party to this proceeding and never has been a party, is refused.

Mr Nick Tweedie of counsel, instructed by DLA Phillips Fox

For Australian Pacific Airports (Melbourne) Pty Ltd

Ms De Ferrari of counsel, instructed by Australian Government Solicitor

1 These reasons should be read in conjunction with the Tribunal's orders dated 20 June 2005 and 31 March 2006. Where I refer to "the Commonwealth" in these reasons I am referring to the Department of Transport and Regional Services.

2 This directions hearing is held at the request of the Commonwealth to consider matters set out in its letter dated 29 January 2007 in which it requested that a direction be made removing the Department of Transport and Regional Services as a party to the proceedings pursuant to the liberty to apply granted on 31 March 2006.

3 At the directions hearing, Ms De Ferrari for the Commonwealth changed this request to one for an order to correct the Tribunal record by removing the Commonwealth as a party and a clear ruling that the Commonwealth is not and never has been a party to this proceeding.

4 This was opposed by Mr Tweedie on behalf of Hume City Council, although he indicated that he would not oppose an order giving the Commonwealth leave to withdraw from the proceedings. Mr Beaumont on behalf of the applicant, The Boyse Estate, neither supported nor opposed the Commonwealth's application except to say that it was outrageous and unreasonable that the Commonwealth was making such an application at this stage, 14 days before the hearing was listed to commence, but notwithstanding this the applicant would consent to an order that the Commonwealth have leave to withdraw from these proceedings with no other order being made. Mr Finanzio on behalf of Australian Pacific Airports (Melbourne) Pty Ltd stated that he had nothing to say.

5 The status of the Commonwealth as a party was raised in my order dated 20 June 2005, which joined Australian Pacific Airports (Melbourne) Pty Ltd as a party. My reasons set out the background to this application for review and the specific request currently before me, and it is useful to quote them in full:

[1] This application for review is made pursuant to section 77 of the Planning and Environment Act 1987 against the refusal by the responsible authority to grant a permit for a cool store facility on the subject land. The land is located in a Green Wedge Zone and is subject to a Public Acquisition Overlay Schedule 3 and Airport Environs Overlay Schedule 1. The proposed east-west runway for Melbourne Airport affects the northern section of the land.

[2] Under the schedule to the Public Acquisition Overlay of the Hume Planning Scheme (PAO3) the Commonwealth of Australia is included as the acquisition authority and the purpose of acquisition is for "airport purposes". The Commonwealth of Australia (Department of Transport and Regional Services) is therefore a referral authority under the Hume Planning Scheme and is liable for any compensation payable in respect of the acquisition.

[3] Melbourne Airport has been leased by the Commonwealth to Australian Pacific Airports (Melbourne) Pty Ltd. It appears from correspondence that Australian Pacific Airports (Melbourne) Pty Ltd may be responsible for acquisition for further land for the airport under the arrangements of the lease. On this basis the Department of Transport and Regional Services has indicated that it does not wish to be involved in this application for review as a referral authority, and indeed has apparently requested Hume City Council for an amendment to the planning scheme to remove the Commonwealth of Australia as a referral authority. However, as the planning scheme currently stands and until it is amended, the Commonwealth of Australia is a referral authority and is the body responsible for acquisition under the Public Acquisition Overlay. The Commonwealth may well have contractual or other relations with Australian Pacific Airports (Melbourne) Pty Ltd pursuant to the lease but these stand outside the planning scheme and the obligations arising under the Planning and Environment Act 1987.

[4] At present, there appears to be some confusion on the part of the Department of Transport and Regional Services about its role under the Hume Planning Scheme and in the Planning and Environment Act. It is not open to the Tribunal to change this role or the provisions of the Hume Planning Scheme. Currently, the Commonwealth of Australia is a referral authority and certain obligations may flow from this. It is entirely appropriate that Australian Pacific Airports (Melbourne) Pty Ltd be made a party to this proceeding but that does not necessarily relieve the Commonwealth from its obligations under the planning scheme and the Planning and Environment Act.

[5] The key issue in this case appears to be whether the grounds of refusal set out in the notice of refusal issued by Hume City Council on 2 February 2005 are appropriate or whether the grounds of refusal should have been on the basis that the land is or will be required for a public purpose. The applicant has made it clear that the application for planning permit is being made for the sole purpose of triggering a claim for compensation pursuant to section 98 of the Planning and Environment Act 1987. As a refusal under section 99 of the Act is the trigger to both the right to claim and the liability to pay compensation, the Commonwealth's interests as the acquisition authority under the schedule to the Public Acquisition Overlay, may well be affected by this proceeding. For this reason, although the Department of Transport and Regional Services does not appear to wish to be involved in the proceeding and notwithstanding the joinder of Australian Pacific Airports (Melbourne) Pty Ltd as a party, the Tribunal will retain the Department as a referral authority and a party to this proceeding.

6 I note that the Commonwealth was not represented at the directions hearing in June 2005. It was represented at a further directions hearing before Member Rickards on 31 March 2006. At that hearing the Commonwealth indicated it did not wish to take part in the proceedings and sought to withdraw as a party. Member Rickards adopted a similar view to that set out in the Tribunal's order dated 20 June 2005 and indicated that at present it should remain as a party although there was no need for the Commonwealth to participate in the proceedings if it chose not to. Liberty to apply was given in the event that the Commonwealth wished to come back and put more detailed submissions in relation to its position seeking withdrawal. The present application by the Commonwealth responds to that direction.

7 The Commonwealth states that it has no interest in the proceedings, taking the view that it should never have been joined as a party in the first place because the Planning and Environment Act 1987 does not, as a matter of statutory construction, apply to the Commonwealth. The Commonwealth should not be named as a referral authority in Public Acquisition Overlay 3 in the Hume Planning Scheme. In support of this proposition, Ms De Ferrari relied upon:

•

The Federal Court case of Ventana Pty Ltd v Federal Airports Corporation[1] which held that the Planning and Environment Act 1987 (Vic) and the Kingston Planning Scheme did not purport to bind the Crown in right of the Commonwealth, there being nothing in the language or context of the Act to warrant a departure from the presumption that it was not intended to bind the Crown in right of the Commonwealth.

•

There was an arguable inconsistency under section 109 of the Constitution that would make the Planning and Environment Act 1987 (Vic) inapplicable to the extent of the inconsistency. The Planning and Environment Act 1987 (Vic) and subordinate planning schemes made under it are inconsistent with the Airport Act 1996 (Commonwealth) and regulations thereunder, which is the Commonwealth Act applying to airports.

•

The doctrine of intergovernmental immunities.

8 I am not prepared to make the orders sought by the Commonwealth for the following reasons.

9 The substantive proceeding before the Tribunal is not a case about whether or not the Commonwealth is properly named as an acquisition authority under the Public Acquisition Overlay in the Hume Planning Scheme. It is not a case about determining whether compensation is payable under Part 5 of the Planning and Environment Act or who is liable to pay. Rather, it is a case about whether or not a planning permit should be granted for a cold storage facility under the provisions of the Hume Planning Scheme. It may be laying the ground work for a future application for compensation under the Planning and Environment Act 1987 but compensation is not the subject matter of the present application for review.

10 The subject land is not Commonwealth owned land but is privately owned freehold land. The Commonwealth's involvement in this case and the reason why it has been included by the Tribunal as a party in the proceeding is because it is named as the acquisition authority for PAO3 in the schedule to the Public Acquisition Overlay. Pursuant to clause 45.01-3 of the Hume Planning Scheme, an acquisition authority under the Public Acquisition Overlay is a referral authority under section 55 of the Planning and Environment Act 1987. Section 83(1) of the Act provides that a referral authority is a party to a proceeding for review under the Act in the following circumstances:

(1) In addition to any other party to a proceeding for review under this Act, a referral authority is a party to a proceeding for review -

(i) the referral authority had objected to the grant of the permit; or

(ii) it was refused because a condition required by the referral authority conflicted with a condition required by another referral authority; ...

11 The responsible authority referred the planning permit application to the Commonwealth for comment pursuant to section 55 of the Act. Initially the Commonwealth chose not to provide comments additional to those of Australian Pacific Airports (Melbourne) Pty Ltd (see letter dated 12 January 2004). The responsible authority then wrote to the Commonwealth disagreeing with statements in this letter and again seeking a response to the permit application. In this letter dated 25 May 2004, the responsible authority said: "Unless the Commonwealth formally objects to the Application within the next 14 days council will assume that the Commonwealth does not object to the granting of the permit." By letter dated 4 June 2004, the Commonwealth replied as follows:

I refer to your letter of 25 May 2004 seeking the Commonwealth's comment on the application for a planning permit for the proposed development at Lots 1 and 2 Barbiston Road, Keilor.

In discussing the application with Australia Pacific Airports (Melbourne) Pty Ltd (APAM), it has come to my attention that the proposed development would constitute a "controlled activity" under Section 182 of the Commonwealth Airports Act 1996. It would be a controlled activity because, if carried out, the development would intrude into the prescribed airspace relating to a future runway for Melbourne Airport. Based on APAM's advice, it would intrude into a critical part of that prescribed airspace.

Under Section 183 of the Airports Act, a controlled activity cannot be carried out without approval, and must be assessed under the Commonwealth Airports (Protection of Airspace) Regulations 1996.

Council's consideration of the planning permit will now be subordinate to the requirements of the above mentioned Commonwealth legislation. I attach for your information a copy of the relevant parts of that legislation.

12 In its response to the Tribunal's request for information under Practice Note 2,[2] the responsible authority has indicated:

A question of law that might arise in the hearing of the Application for Review is whether the Commonwealth has actually objected to the grant of a permit on the basis that the land is required for a public purpose.

13 As noted previously, it is common ground that this application for review is setting the ground work for a claim for compensation under the Planning and Environment Act 1987. At issue is the basis of the reasons for refusal to grant a permit.[3] The reasons set out in the council's notice of refusal are as follows:

1. The location of the proposed cool stores is contrary to the recommendations of Australian Standard AS2021-2000 'Acoustics-Aircraft noise intrusion-Building siting and construction'.

2. The proposed buildings will penetrate Melbourne Airport's prescribed airspace surfaces.

3. The proposed dam will increase the likelihood of attracting birds that may impact on the safety of aircraft operations.

4. The proposal is contrary to the purpose of the Rural zone and the Core Planning Provisions for Metropolitan Green Wedge land.

5. The proposal is contrary to the Local Planning Policy Framework objectives and strategies for the Rural Areas.

6. The proposal is not appropriate in a Rural zone.

14 The applicant's grounds of review set out in the application for review are as follows:

1. The Review Site is subject to a Public Acquisition Overlay schedule 3 and an Airport Environs Overlay.

2. The Responsible Authority should have refused the Application on the grounds that the Review Site is or will be required for a public purpose.

15 Thus not only is the Commonwealth named as a referral authority under the Hume Planning Scheme but it would also have a direct interest in the outcome of the application for review based on:

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the reasons for the refusal to grant a permit;

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the grounds of review;

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information supplied by the responsible authority about the background to the application, which includes correspondence received from the two relevant referral authorities under the planning scheme (the Commonwealth under the Public Acquisition Overlay and Australia Pacific Airports (Melbourne) Pty Ltd under the Airport Environs Overlay) and the objection by Australia Pacific Airports (Melbourne) Pty Ltd as a referral authority that the proposal is contrary to the purpose of the Public Acquisition Overlay; and

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its interest as a nearby landowner[4].

16 In my view, the Commonwealth has been properly treated as a party to this proceeding by the Tribunal under two legislative heads:

a

Section 83(1)(a)(i) of the Planning and Environment Act 1987

b

Section 60 of the Victorian Civil and Administrative Tribunal Act 1998.

17 Section 83(1) of the Planning and Environment Act 1987 is quite explicit in stating that a referral authority is a party to a proceeding. This is not something that the Tribunal has any discretion about (unlike section 60 of the Victorian Civil and Administrative Tribunal Act 1998). Whilst the Commonwealth says it should not be named as an acquisition authority under the schedule to the Public Acquisition Overlay of the Hume Planning Scheme and hence should not be a referral authority under the Planning and Environment Act 1987, I do not consider it is open to me to disregard the explicit provisions of the planning scheme and the Act in this respect. If the Commonwealth wishes to challenge this aspect of the planning scheme it should pursue the request it has made to Hume City Council (as planning authority) and the Minister for Planning to amend the planning scheme,[5] or alternatively take action elsewhere to have this aspect of the planning scheme declared invalid.

18 Ms De Ferrari submitted that it is not a question of fact whether the Commonwealth is a referral authority but a question of law: it is a jurisdictional issue as to who are the parties to a proceeding. Hence on the basis that the Commonwealth is not subject to the Planning and Environment Act 1987, she submitted I should find that the Commonwealth cannot be a referral authority and consequentially cannot be a party to this proceeding. She further submitted that I could not escape making a ruling on this jurisdictional issue and on this point she referred me to the comments of Justice Morris in Buttigieg v Melton SC[6] where he said:

[28] Where one party asserts that the tribunal has jurisdiction to hear and determine a proceeding, but other persons contend that the tribunal does not have such jurisdiction, it is open to the tribunal, if not the duty of the tribunal, to determine whether or not it has jurisdiction. It is not to the point, as Mr Dreyfus submitted, that a party could go to the Supreme Court of Victoria and obtain a writ of mandamus requiring the tribunal to accept jurisdiction. A writ of mandamus requires a person or body to do their duty according to law. If it is the case that the tribunal does have jurisdiction, it should be able to determine that question and, hence, do its duty according to law, without being told to do so by a superior court.

19 However, I do not consider that a "jurisdictional" issue arises in this proceeding in the sense referred to in Buttigieg v Melton SC. Whether or not the Commonwealth is a party does not affect the Tribunal's jurisdiction to hear and determine the proceeding. This is an application for review under section 77 of the Planning and Environment Act 1987: it relates to the grant of a permit in respect of private, not Commonwealth, land. Nobody has asserted that the Tribunal lacks jurisdiction to hear and determine the proceeding. There is no order being sought that would bind the Commonwealth or direct it to do anything. The outcome of the proceeding will not be determinative of any claim for compensation under Part 5 of the Act. Such a claim will need to be determined on its own merits, and in that context the standing of the Commonwealth as a party or as an authority liable to pay any compensation payable this Part may be relevant. But I find in the context of this proceeding, whether or not the Commonwealth is a party to the proceeding is not a jurisdictional question.

20 I find as a fact that the Commonwealth is a referral authority under the Hume Planning Scheme and the Planning and Environment Act 1987 because it is named as an acquisition authority in the schedule to the Public Acquisition Overlay. I therefore find as a matter of law that the Commonwealth is a party pursuant to the provisions of section 83(1)(a)(i) of the Planning and Environment Act 1987. To the extent that the Commonwealth's response to the Responsible Authority dated 4 June 2004 may be challenged as being an objection to the grant of a permit, the proper time to argue this issue is at the substantive hearing of the proceeding on its merits. I further find that it is both unnecessary and inappropriate for me to look behind the face of the planning scheme to question whether the Commonwealth has been properly or validly included as an acquisition authority in the scheme. If the Commonwealth wishes to challenge the validity of this provision of the planning scheme on constitutional or other grounds it should do so elsewhere.

21 Land use planning in the vicinity of the Melbourne Airport has great strategic significance within Victoria's planning policy framework. There is a specific section of the Planning and Environment Act 1987 relating to the Melbourne Airport Environs Strategy Plan[7] and Melbourne Airport is referred to specifically in various contexts within the State Planning Policy Framework and the Local Planning Policy Framework of the Hume Planning Scheme.[8] The strategic significance of Melbourne Airport and the need to control use and development of land earmarked for future acquisition means that the Public Acquisition Overlay is an important planning tool to achieve a variety of strategic objectives included in the planning scheme, and indeed the objectives of planning in Victoria set out in section 4 of the Act, in particular section 4(1)(e).

22 I consider it is extremely unlikely that a Public Acquisition Overlay covering the size of the area around Melbourne Airport that PA03 does, would have been originally applied by Hume City Council or approved by the Minister for Planning without the request or consent of the acquisition authority. Ms De Ferrari stated that the Commonwealth had never requested the overlay whereas Mr Tweedie said that it had been requested by the Federal Airports Corporation when it was responsible for Melbourne Airport and there was documentary evidence of this.[9] I have no evidence about these matters before me, merely statements made in the course of argument by counsel. Nevertheless, such conflicting statements illustrate that now is not the appropriate time or place to be making rulings about whether the Commonwealth is properly named as an acquisition authority in the schedule to the Public Acquisition Overlay in the Hume Planning Scheme. Apart from evidentiary issues, the planning implications of making such a ruling, even assuming I had the power to do so, are of major significance. Any declarations about the validity of the Public Acquisition Overlay under the Hume Planning Scheme should be made by a court of competent jurisdiction with full input by all relevant parties and interested persons.

23 I cannot amend the planning scheme and I have no powers under the Planning and Environment Act 1987 to make declarations abut the validity of planning schemes. Nor do I consider it is a matter that I should make any declaration about using my power under section 124 of the Victorian Civil and Administrative Tribunal Act 1998. I consider that the provisions of section 83(1) of the Planning and Environment Act 1987 govern the situation and that in the context of this proceeding, the Commonwealth is a party pursuant to the operation of this provision.

24 However, even if I was in doubt about this, I consider that the provisions of section 60 of the Victorian Civil and Administrative Tribunal Act 1998 would entitle the Tribunal to make an order joining the Commonwealth as a party.

25 Section 59 of the Victorian Civil and Administrative Tribunal Act 1998 sets out who are the parties to a proceeding. Section 59(1)(b)(iii) includes any person joined as a party to the proceeding by the Tribunal. Section 60 of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under sub-section (1) on its own initiative or on the application of any person.

26 Whilst to date the Commonwealth has indicated a steadfast disinclination to participate in the proceeding or be involved with the permit application, nevertheless I find that the Commonwealth's interests as a named acquisition authority in the schedule to the Public Acquisition Overlay, as a referral authority and as a nearby landowner are affected by this proceeding. Simply on this basis, the Commonwealth should be a party to this proceeding so that it has the opportunity to make submissions on any matters affecting its interests. Whether it takes advantage of this opportunity is entirely a matter for the Commonwealth.

27 There is no bar to the Commonwealth being a party in a proceeding before the Tribunal. Thus far it has not indicated a desire to participate and was excused from participation in the compulsory conference directed by Member Rickards on 31 March 2006. What reasons the Commonwealth now has for seeking to extricate itself as a party, other than as a matter of principle, Ms De Ferrari declined to reveal.

28 In my view, being a party in this proceeding does no more than provide the Commonwealth with an opportunity to be heard regarding its interests.[10] Whether or not it has obligations to pay compensation under Part 5 of the Planning and Environment Act 1987 or any other obligations will not be determined by this proceeding, which is but the first step in the process of the applicant seeking compensation. Nor does inclusion of the Commonwealth as a party preclude it from taking any action elsewhere that it considers appropriate in respect of the validity or constitutionality of the Hume Planning Scheme.

29 A further reason for rejecting the Commonwealth's application in this directions hearing is that I am not persuaded that the matter of principle relied upon by Ms De Ferrari, that the Commonwealth cannot be bound by a State Act (namely the Planning and Environment Act 1987), is as straightforward in this particular case as she alleges.

30 Whilst Ms De Ferrari relied upon the case of Ventana in support of her submission that the Commonwealth could not be a referral authority under a planning scheme because the Planning and Environment Act 1987 and the planning scheme could not bind the Crown in right of the Commonwealth, the facts in Ventana were quite different to the facts in the present case. Ventana was concerned with Commonwealth owned land (the Moorabbin Airport). It was held that a planning permit was not required to use or develop Commonwealth land under the provisions of the planning scheme. In the present case, the subject land is private land. There is no question that the Hume Planning Scheme and the Planning and Environment Act 1987 apply to the subject land. The Public Acquisition Overlay does not affect Commonwealth land. The referral provisions in the Act operate to ensure that referral authorities are given notice of certain permit applications that potentially affect their interests. They provide referral authorities with powers to object to applications or to impose conditions and for those objections or conditions to be given effect to in decisions making by responsible authorities. Effectively, the Planning and Environment Act 1987 confers powers on referral authorities that they would not otherwise have. These powers are arguably different to an obligation to obtain a planning permit to use or develop land.

31 In my view, the issues inherent in the matter of principle raised and the orders sought by the Commonwealth are complex and would require more detailed analysis and argument to support them than was put before me at this directions hearing. However, I am not persuaded there is a need to pursue these matters at this point.

32 A hearing on the substantive merits of this application for review is due to commence on 25 February 2007. The Commonwealth has been aware of the proceeding since it was lodged in April 2005. It has been named as a party from the outset because of its referral authority status. Whilst it has not sought to actively participate, it is not unusual in the Planning and Environment List for referral authorities to be named as parties but to take no active part in the proceeding. They retain a right to do so if they wish. In the present case, nothing has been put to me, other than a statement of principle, that would explain why the Commonwealth now, at the eleventh hour, finds it so important to be extricated as a party.

33 In conclusion and for the reasons I have given, I am not prepared to make the orders sought by the Commonwealth to remove the Commonwealth as a party and to correct the Tribunal's record on the basis that the Commonwealth is not and never has been a party. Quite apart from the operation of section 83(1) of the Planning and Environment Act 1987, which I consider I am bound by, I consider it is desirable to retain an opportunity for the Commonwealth to participate in this proceeding, if it so wishes, in light of the fact that the issues which are central to the case affect the Commonwealth's interests in the way outlined.

34 No specific order has been made under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 joining the Commonwealth although I consider that strong grounds exist for making such an order, irrespective of the Commonwealth's status as an acquisition authority under the Public Acquisition Overlay and as a referral authority under the Planning and Environment Act 1987. Because of the view I have taken about the operation of section 83(1) of the Planning and Environment Act 1987, I do not consider I need make an order under section 60. However, I note that it would be open to the Tribunal either on its own volition or at the request of a party to make such an order, if that was necessary or desirable.

[1] (1997) 75 FCR 400

[2] Victorian Civil and Administrative Tribunal Practice Note No 2 Planning and Environment List PNPE2 - Responsible Authority Information, clause 1.18

[3] See section 99 Planning and Environment Act 1987

[4] Melbourne Airport has been sold to Australia Pacific Airports (Melbourne) Pty Ltd by way of a long term lease but the airport site remains a Commonwealth land (see letter dated 12 January 2004 to Hume City Council from Department of Transport and Regional Services).

[5] If the planning scheme is to be amended, this would involve either removal of the Public Acquisition Overlay around the Melbourne Airport or a change to the name of the acquisition authority for PAO3 in the schedule.

[6] [2004] VCAT 868; (2004) 134 LGERA 328

[7] Part 3C of the Planning and Environment Act 1987

[8] For example, see clause 18.04-3 and clause 21.01-3

[9] I note that in the case of Ventana Pty Ltd v Federal Airports Corporation it was held that the Federal Airports Corporation was intended to be equated with the Crown in right of Commonwealth.

[10] As a party, the Commonwealth would also have a right of appeal against the Tribunal's decision on a point of law - see section 148 Victoria Civil and Administrative Act 1998.