Land Proprietors Oppose Amendment in Relation to Planning Schemes
W Everton Park Pty Ltd v Minister for Planning [2021] VSC 465 (5 August 2021)
The Minister for Planning amended the Victoria Planning Provisions and all planning schemes in Victoria in relation to the Public Conservation and Resource Zone 'PCRZ'. Lindsay and Paula Fox, the registered proprietors of their own private land extending into the PCRZ opposed such amendment on various grounds. The Court, in making its orders, relied on Planning and Environment Act 1987 (Vic).
Facts:
In August 1983, Lindsay and Paula Fox became the registered proprietors of a block of land (the Fox land) in Portsea, Victoria. W Everton Park Pty Ltd, became the registered proprietor of an adjoining block of land in June 1995. The beach boundary of the Fox land moves with the natural movement of the mean high water mark over time. The Register was then corrected by the Registrar of Titles to show the beach boundary of the Fox land almost 50 metres further to the north-east than had previously been recorded. Such correction did not affect the zoning of the land under the Mornington Peninsula Planning Scheme. The ‘beach land’ that was newly shown remained within the PCRZ. On 28 March 2014, the Minister for Planning amended (Amendment VC115) the Victoria Planning Provisions (VPPs) and all planning schemes in Victoria in relation to the PCRZ.
The Minister exempted himself under s 20(4) of the Planning and Environment Act 1987 (Vic) (Planning Act) from the notification requirements of ss 17, 18 and 19 of the Planning Act in relation to Amendment VC115. A decision pursuant to s 4C of the Planning Act, to approve Amendment VC115 was also made by the minister. The effect of these is that developments of land in the PCRZ would in future require a permit. Where there is no public land manager for the land, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries. The Fox parties seek declarations that both the Exemption Decision and the Amendment Decision are invalid and of no legal effect because the Minister had regard to irrelevant considerations in exercising his power. They further assert that the Exemption Decision was for improper purposes and that the amendment did not comply with the Ministerial direction under s 7(5) as to form and content of planning schemes. The Fox parties further or alternatively seek a declaration that the Amendment Decision involved an ‘acquisition by subterfuge’ of the beach land, and damages to compensate them for that acquisition.
Issues:
I. Whether or not the Minister's decisions were invalid.
II. Whether or not the amendment conferred absolute and unreviewable power on Secretary, repugnant to Planning and Environment Act 1987 (Vic).
Applicable law:
Planning and Environment Act 1987 (Vic) s 20(4) - provides for the exemption from the notification requirements.
Planning and Environment Act 1987 (Vic) ss 17, 18 and 19 - provides for notification requirements.
Planning and Environment Act 1987 (Vic) s 4C - provides that the Minister may approve an amendment or part of an amendment to the Victoria Planning Provisions prepared by the Minister or submitted to the Minister under section 4B.
Analysis:
The nature of the amendment would require consideration of a range of matters pertinent to the management of land, of which bushfire risk would be one aspect. The amendment will generate positive environmental, social and economic benefits by ensuring that the views of the Secretary to the Department of Environment and Primary Industries, on behalf of the Crown, are considered and applied for any proposed use and development of land under the PCRZ. where no public land manager has been declared. The discretionary value judgment to be made by the Minister under s 20(4) is constrained only by the need to form an opinion about whether an exemption would be in the interests of Victoria.
The Secretary’s power to refuse consent is not a broad-ranging power to block a proposed use or development of land in the PCRZ. The assessment of the planning merits of a permit application remains a matter for the responsible authority and any referral authority specified in the planning scheme.
Conclusion:
The Court dismissed the proceeding. The Court declared that the Minister did not have regard to irrelevant considerations or overlook any mandatory relevant consideration when making the Exemption Decision. Neither the Exemption Decision nor the Amendment Decision was made for an improper purpose. The Minister had regard to the Direction, and did not fail to comply with it, in preparing and approving Amendment VC115. The power conferred on the Secretary by the amendment is not repugnant to the Planning Act. Contrary to the Fox parties' assertions, amendment VC115 did not involve an acquisition or reservation by subterfuge of the beach land.
