The Charter in planning hearings

Another VCAT Charter case has appeared on Austlii. Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 probably won’t appear on anyone’s list of great Charter moments. The case is a VCAT determination of a planning application to build some new ‘service centres’ at the Pakenham bypass. The local council sat on the application too long and VCAT ruled that the centres can be built, lauding their encouragement of drivers to take a break and dismissing their impact on the local Growling Grass Frog population, although the tribunal felt that the centres were a bit over the top in their plans for multiple food outlets and separate drive through facilities.

 The facts don’t exactly scream Charter, nor do the main parties, neither of whom have rights under Charter s. 6(1):

6(1) Only persons have human rights. All persons have the human rights set out in Part 2.

Note Corporations do not have human rights.

But the objectors to the plan included two families (human beings, I assume) who owned nearby land, one of whom – the Hockings – brought a Senior Counsel to the hearing. David Denton SC raised quite a storm, arguing that VCAT had no jurisdiction due to earlier intervention by the Commonwealth on behalf of the frogs (an objection made six days into the planning hearing), spending an entire day cross-examining the applicant’s ecology expert on the subject of those frogs (to little effect, according to VCAT) and accusing him of improperly withholding information.

The Charter comes in because Denton also raised a slew of objections about the conduct of the hearing, complaining that the VCAT members had made an unaccompanied visit to the bypass site, that the order of proceedings left him having to address the court while unaware of the other parties’ submissions and that Tribunal invited written submissions on its preliminary views four days into the hearing. The Tribunal found that these procedures were all authorised by various sections of the VCAT Act:

80(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

97 The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

98(1) The Tribunal- (a) is bound by the rules of natural justice; (b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; (c) may inform itself on any matter as it sees fit; (d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

129(1) If the presiding member considers it desirable for the purposes of a proceeding, the Tribunal may- (a) enter and inspect any land or building either in the presence of, or without, the parties.

But Denton argued that the Charter had changed the rules:

Mr Denton argued in his right of reply that the Tribunal had failed to provide for his client a fair trial within the meaning of Section 24, thereby breaching the requirements of the Charter Act. The thrust of Mr Denton’s case here was that the Charter Act has “moved the goalposts” in terms of what constitutes a fair hearing, and it was no longer possible for the Tribunal to reply on Sections 80(1), 97 and 98 of the VCAT Act 1998 or on the General Procedures Practice Notes.

Denton is right that the Charter has moved the goalposts on fairness. But that doesn’t mean that the relevant legislation can’t be relied upon. Re-interpreted maybe. And, at least where the Tribunal is exercising an adminstrative function (arguably in determining a planning application in lieu of Cardinia SC, but I doubt that the conduct of the hearing itself is an administrative function), maybe the Tribunal will have to change how it exercises its discretion (although some of the above sections would appear to provide the Tribunal with a s38(2) defence.) 

VCAT didn’t consider the operative provisions of the Charter but instead dismissed Denton’s claims on their merits, largely by finding (somewhat self-servingly, but not unconvincingly) that it had “bent over backwards” to accommodate Denton’s various objections, doing a further accompanied site visit and offering rights of reply and the like. The Tribunal rejected Denton’s claim that accompanied site visits are verboten under Charter s. 24(1):

[I]n my experience the parties in most Tribunal hearings: do not share Mr Denton’s misgivings about the Member carrying out unaccompanied inspections; but in fact are supportive of unaccompanied inspections on the basis of their confidence in the Member, together with this more flexible arrangement usually being more convenient and involving less costs for the parties.

I’m not convinced that that’s a big point. The Tribunal indeed put a lot of store in the absence of supporting voices worldwide for Denton’s claims of unfairness:

It was also telling that Mr Denton was not able to provide me with any previous tribunal or court decisions to substantiate his case, despite Section 32(2) of the Charter Act. I note that when I raised this with Mr Denton during his right of reply, he put to me that in my management of the hearing I had prevented him from researching and obtaining such cases. This was disputed by Mr Gobbo in his closing address. It is absolutely clear to me that our Directions of 7 March 2008 gave Mr Denton nine clear days (even if he had not already done so) up to 17 March to research any relevant case law. Accordingly I am unimpressed by Mr Denton’s assertion that this scope for researching relevant cases was constrained by the Tribunal. If the goalposts have shifted for the fair running of planning appeal hearings as was asserted by Mr Denton, then it seems curious that Mr Denton did not provide me with any guideline decisions to this effect from one of the several other comparable overseas jurisdictions where a human rights charter has been introduced

Procedural craziness aside, I’m dubious at treating Charter s. 32(2) – a provision that simply permits, and perhaps encourages, interpreters to look to the views of the world’s courts – as some sort of precondition for making a Charter argument. A law or practice can breach the right to a fair hearing even if a bunch of lawyers or all of the world’s courts think the rule is quite dandy. But nevertheless it seems clear that the Tribunal was quite frustrated by Denton’s various arguments, including the Charter ones, and didn’t see much merit in them at all. These proceedings can scarcely be lauded as evidence of the Charter’s contribution to litigation or any sort of human rights culture or dialogue.

In this regard, it’s interesting to note that the Mental Health Review Board has attempted to head off these sorts of drawn out and unedifying debates about the Charter via a Practice Direction, insisting on pre-hearing notice:

Where a party intends to:


  • raise at a hearing a Charter issue or argument relevant to the determination which the Board must make in the particular case; and/or
  • make application to the Board for referral of a Charter issue or argument to the Supreme Court, 


that party shall give to the Executive Officer and any other party no later than by the close of business five days before the date fixed for the hearing a notice…

The notice must be accompanied by ‘a brief statement of facts, issues and contentions’ setting out ‘in no more than  few sentences’ an outline of the argument, an explanation of its relevance to the Board’s determination, skeleton arguments and references to documents and authorities to be relied upon. Indeed, the first attempt of the Mental Health Law Centre to make its s30(4) argument in the recent Board case was rejected by the Board for failing to be sufficiently clear on how the Charter factored in to the argument.

I must admit that when I first saw the MHRB’s practice note, I was quite ambivalent about it, fearing that it would chill Charter arguments in the MHRB in the same way that Charter s. 35(1) and s78B of the Judiciary Act seem to be chilling Charter arguments in the regular courts. The Charter is potentially so broad in application that it calls for spur-of-the-moment references. Moreover, I also thought it odd for a body to attempt to restrict how anyone relies on a particular statute before it, especially a fundamental one like the Charter. But now, having read this new VCAT decision, I can see the merits of a more rigid approach!

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