The Charter vs Ministerial rezoning

Last Friday was arguably the biggest Charter day ever. Not only did news emerge of a significant new Charter challenge (actually the second Charter challenge in the news that week), but there were also two Charter cases in a single day, both in the Court of Appeal. I wonder if days like Firday will be routine a few years from now? Not that the cases were too exciting.  Both of them were mere passing mentions of the Charter. Indeed, both were made by dissenting judges. And both cases were within the scope of Charter s. 49(2), the Charter’s overbroad transitional provision.

Nevertheless, the two cases strike me as a positive sign (and not just because I happen to think that the dissenting judges happened to be right.) The passing mentions were not mere footnotes trivialising the Charter, but instead deliberate attempts by two judges to draw attention to possible Charter issues, even if they weren’t live in the case before them. I think this is a terrific development, and a wholly appropriate approach to ‘applying’ the Charter in cases where the Charter unfortunately doesn’t apply. Given the other barriers to raising the Charter, it’s important for lawyers and others to be made aware of potential uses of the Charter in the future. Indeed, such references might be the start of a dialogue that occurs in advance of more formal Charter litigation, like declarations of inconsistent interpretation. As it happens, both involved a common rights issue, the right to notice, albeit in very different contexts.

East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217 is a planning case, involving Ministerial overrides, a topic that resonates strongly with people like me who lived in Queenland during the Russ Hinze years. In this case, a residents’ group in a well preserved and well heeled Melbourne inner suburb challenged a plan by the local iconic Hilton hotel (across the road from the MCG) to build a new 15 story tower. The plan was fast-tracked by Minister Mary Delahunty, who sidelined the usual planning processes in 2005, citing the then upcoming Commonwealth Games. It was the latter citation that caused her decision to come a cropper in the Court of Appeal, who held that it failed administrative law’s ‘Wednesbury’ unreasonableness standard, because there was no possibility of the tower being built in time for the games. I’ve got to say that I think there’s a lot to be said for the dissent of Chief Justice Marilyn Warren, who held that Minister was thinking of Hilton’s promise to refurbish the existing tower (and its implicit threat to withdraw its brand from the icon) if the planning approval wasn’t speedily approved. I would have thought the odds were good of a sucessful High Court appeal, but I’m no administrative lawyer.

Warren’s Charter point was made in relation to the section of Victoria’s Planning & Environment Act 1987, which allows the Minister to ditch the usual procedure for making amendments to a plan (supply of copies, public availability and specific notice):

20(4)The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

Warren commented:

Some additional observations may be made regarding the interpretation of s 20(4), although the ultimate determination of this case is not based on them. First, the relevant test for s 20(4) is set out in the section itself. It requires that ‘the Minister considers that compliance with [the notice] requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.’ These terms are disjunctive. The use of the word ‘or’ indicates that the Minister need only consider that either compliance with the notice requirements is not warranted or that the interests of Victoria, or any part of it, make exemption from the notice requirements appropriate. Nevertheless, it is unnecessary to determine the point for present purposes. Indeed, it was not argued at the trial or in the appeal. Moreover, and although it did not arise in this case, consideration may be required in future of the ramifications of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the application of s 20(4) of the Act.

Warren (unfotunately) didn’t identify which Charter rights she had in mind.

While Charter s. 20’s might seem to be the natural one, I’ve got my doubts about how a planning amendment could be seen as a ‘deprivation’ of property or how any such deprivation could be otherwise than ‘in accordance with the law’. Rather, the right Warren might have been referring to was this one:

18(1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.

If (if!) this right extends to participation in planning matters, then it might favour a narrower reading of s. 20(4), perhaps reading the ‘or’ as non-disjunctive (if that’s ‘possible’) or reading ‘interests of Victoria’ as limited to interests that flow directly from the planning amendment (such as the apocryphal new tower to accommodate Commonwealth Games visitors) rather than incidental benefits (such as the very real refurbishments that did charm those same visitors.) Of course, there’s Charter s. 7(2) to consider. Warren’s comments might also be relevant to future planning ministers contemplating the impact of the conduct mandate.

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