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What is the relevance of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) to applications for review in the planning jurisdiction?
A recent decision of the Tribunal in respect of an application to strike out grounds of review of a municipal council and objector party which were based upon incompatibility of a development proposal with rights protected under the Charter has had very real implications for the planning industry more broadly.
The Tribunal found inter alia that the question of whether Charter rights are limited by a proposed development is something that will need to be determined at a merits hearing and not something that ought be struck out in advance as being hopeless and untenable.
This of course means objectors will now be afforded the opportunity to argue the relevance of Charter grounds at a merits hearing, and to call evidence about it, rather than these grounds being struck out in advance.
At a Practice Day hearing, the Tribunal (constituted by a legal Member) in Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758, declined to strike out a ground of refusal in the Notice of Refusal of a planning permit application issued by Merri-bek City Council. That ground of refusal stated:
The Tribunal also declined to strike out a ground included within a objector party’s statement of grounds which also called upon the Charter. It stated:
Relevantly, Section 38(1) of the Charter relates to the conduct of public authorities and provides that it is unlawful for a public authority (which includes a municipal council) to act in a way that is incompatible with a human right or, in making a decision, fails to give proper consideration to a relevant human right.
In seeking to strike out the grounds relating to the Charter, it was submitted on behalf of the permit applicant that the obligations in Section 38(1) of the Charter only arise in circumstances where a right has been limited. It was further submitted that the Charter does not override planning law; rather, consideration of the Charter is to occur through the legal framework within which the decision regarding the proposal is to be made. Reliance was placed on the decision of the Tribunal in Smith v Hobsons Bay CC (Smith) in this regard.
In Smith, Deputy President Dwyer was called upon to answer questions of law that went to the compatibility of the Hobsons Bay Planning Scheme with the Charter, and, whether a decision to modify the requirement to screen a first floor balcony in the proposed development would breach the right to privacy under section 13 of the Charter. The Smith case has long been understood to stand for the proposition that (in respect of the right to privacy at Section 13 of the Charter) overlooking of another’s property is not an ‘unlawful’ interference with that person’s right to privacy to the extent that it is envisaged by planning law as a possible outcome (namely through Clause 55 of the Planning Scheme) and therefore cannot be regarded as a breach of the Charter.
While the case at hand did not deal with overlooking per se in the Clause 55 sense, it was submitted that the same approach applies to the extent that Clause 58 of the Planning Scheme addresses what is considered to be the acceptable extent of overlooking for apartment developments.
In response, the objector submitted that the grounds ought not be struck out, contending that the application of the Charter in the proceeding must instead be considered following the merits hearing of the matter, at which time fulsome submissions and supporting evidence will be presented in respect of those matters. The objector also submitted that once it was established that Charter rights are limited by the proposal, the onus then falls on the permit applicant to demonstrate that the limits are reasonable and demonstrably justified.
In making its decision, the Tribunal formed a view that the grounds were not absolutely hopeless, clearly untenable or so obviously unsustainable in fact or law that on no view they could justify relief such that they could be struck out.
At paragraphs [114] and [115] of the decision, the Tribunal remarked that:
The question of whether the Charter rights referenced are, in fact, limited by the proposal is something that will ultimately need to be assessed by the Tribunal hearing the merits of the application.
Ultimately, the Tribunal will need to assess the proposal’s compatibility with the Charter, which will involve consideration of:
- whether the Charter rights asserted are relevant to the proposal and engaged by the proposal;
- whether a Charter right that is engaged will be limited; and
- if so, whether that limit under planning law is reasonable and demonstrably justified having regard to the matters set out in section 7(2) of the Charter.
This decision bears relevance for the planning jurisdiction broadly and now means that objector parties will now be afforded the opportunity to argue the relevance of Charter grounds at a merits hearing, and to call evidence about those grounds, rather than them being struck out in advance.
Best Hooper is Victoria’s Property, Planning and Land Development Advisory Law Firm that commonly acts for landowners and developers. Should this article be of interest to you, or should you require any assistance with a current, or future VCAT appeal then please contact our office.
