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Coastal Estates Pty Ltd v Bass Coast SC & Ors.

Country/Territory
Australia
Type of court
National - lower court
Date
Nov 9, 2011
Source
UNEP, InforMEA
Court name
Victorian Civil and Administrative Tribunal
Seat of court
Melbourne
Judge
Dwyer .
Reference number
[2010] VCAT 1807
Language
English
Subject
Land & soil, Legal questions
Keyword
Land-use planning
Abstract
This case s an important decision in relation to the jurisdiction of VCAT in the context of proceedings under s 39 of the Planning and Environment Act 1987. The applicant was a submitter to Amendment C93 to the Bass Coast Planning Scheme. Amendment C93 to the Bass Coast Planning Scheme proposes to introduce a series of structure plans for coastal townships within the municipality, including Coronet Bay. Amongst other things, these structure plans include township boundaries, thereby dentifying undeveloped land to be considered for ezoning (to facilitate the growth of those townships. It claims it was substantially and materially affected by a failure of the panel to comply with ss 24(a), 25(1) and 161(1)(b) of the Planning and Environment Act 1987 in considering and hearing submissions and in reporting its findings on a variety of issues. Coastal Estates Pty Ltd was the owner of a large undeveloped property located to the south of Coronet Bay. The company sought to have its land identified for inclusion within the township (for the purpose of future rezoning and development). This issue was one of the various matters of dispute that was ventilated before the Panel. The Panel recommended that the land should not be identified for inclusion within the township. Coastal Estates Pty Ltd was aggrieved by this recommendation, which led it to commence the application under s 39. S 39 enables a person to seek a form of judicial review, before VCAT, in relation to the planning scheme amendment process, including processes before panels. It was argued before VCAT that s 39 enabled review of the substantive findings and reasoning of a panel, on the basis that those findings and reasoning were affected by irrelevant considerations, or were manifestly unreasonable Having conducted a detailed analysis of the provision, VCAT ultimately concluded that s 39 does not create jurisdiction for the determination of such claims. Rather, the jurisdiction of s 39 was found to be confined to procedural defects or non-compliance with a specific provision of the P&E Act (on the part of the Minister, Panel or planning authority). Aside from this issue of jurisdiction, the decision also includes a useful examination of the nature of a Panel's obligation to provide a 'fair hearing'. This includes the pointed observation that 'procedural fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. The Tribunal held that it did have jurisdiction to consider these matters under s 39 but, after examining the specific allegations, found no breach to have occurred.
Full text
COU-156709.pdf