Victorian Tribunal upholds importance of the Human Rights Charter in planning decision

Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758

Summary

Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758 (5 July 2023) involved the Merri-bek City Council (Council) considering, and ultimately deciding to refuse, an application to develop a block of land by Bespoke Development Group Pty Ltd (applicant). The applicant applied to the Victorian Civil and Administrative Tribunal (Tribunal) for review of the Council’s decision. The applicant sought for the Tribunal to strike out one of the Council's grounds for the refusal, as well as a separate, but related, ground argued by Dr Elisa Hill (respondent) - who lodged an objection of the development application. Both grounds objected to by the applicant related to the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) when determining applications to develop land. The Tribunal decided 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 and that ultimately the tribunal will need to assess the proposal’s compatibility with the Charter” (at [115]). The Tribunal held that the circumstances did not exist to “warrant or justify” (at [147]) an action to summarily strike out of either of the grounds. The matter has moved into the next phase of filing and further hearings are scheduled from 16 to 23 October 2023.

Facts

The applicant sought the Tribunal’s review of a decision by the Council to refuse to approve a proposed development of land at 20 Dods Steet, Brunswick, Victoria (Land). The proposed development included, among other things, construction of a seven storey apartment building. The Land is located in a Mixed Use Zone which subjected the proposed development to a number of requirements, including maximum storey-height and restrictions on views into habitable room windows and private open spaces of new and existing dwellings.

The Council refused the applicant's proposed development on five grounds. Ground 4 was that the "proposal is contrary to the [Charter] which seeks to protect and promote a number of specified human rights". In particular, the Council cited section 13 of the Charter, which provides for a right of privacy and reputation and section 17, which provides for a right of protection for families and children.

Separately, the respondent, who lives with her two sons, Yannick (15) and her older son, Jai (19), who has “profound autism and intellectual disability” (at [9]), owns and occupies an adjoining property at 22 Dods Street (Property), also lodged a statement of grounds objecting to the proposed development. Ground 7 of the respondent’s objection claimed that “… the Tribunal is obliged to both give proper consideration to relevant human rights and act compatibly with human rights protected by the Charter when determining the permit application” (at [7]), drawing on sections 8(2) and (3), 13(a) and 17(1) of the Charter. The respondent detailed the importance of the Property and its significance to Jai. In particular, the respondent noted that Jai is “highly resistant to change” [9], “overwhelmingly reliant on [the] house and backyard” (at [9]) at the Property, and that it is “highly distressing for Jai to change his routine in any way, and this frequently results in irritable/aggressive and self-harm behaviours”.

On 27 April 2023, a practice day hearing was held to determine the future conduct of the proceedings, consider the relevance of Ground 4 in the decision to refuse the application (including whether it be struck out and to determine whether leave be granted for the respondent to amend Ground 7) and consider the applicant's request to strike out Ground 7. Leave was granted for the respondent to amend Ground 7 as it “better explained the response that the respondent relies on and refers to the Charter” (at [14]).

In June 2023, the respondent provided further and better particulars in relation to Ground 7. In particular, the respondent’s updated ground stated that:

The proposed development will limit those rights beyond the extent that is reasonable, and beyond the extent which is demonstrably justified in a free and democratic society. Accordingly the proposed development should be refused; alternatively, made subject to conditions that reduce any limits on human rights to limits that are reasonable and demonstrably justified under [section] 7(2) of the Charter (at [8]).

The applicant sought to summarily strike out both Ground 4 of the Council and Ground 7 of the respondent. In relation to Council's Ground 4, the applicant argued it was misconceived and lacking substance on the basis that, in the applicant's view, its development proposal was in accordance with the Charter and therefore the relevant Charter rights were not limited (at [104]).

Regarding the respondent's Ground 7, the applicant argued the identified rights were not limited by the development proposal, and even if they were, the ground should be dismissed as there was no reasonable "room for proper consideration of [the] Charter rights" (at [64]) and the Council "could not have reasonably acted differently or made a different decision" for the purposes of section 38(2) of the Charter. Accordingly, the applicant contended that section 38(2) of the Charter would operate to disapply section 38(1) of the Charter (which provides for the obligation on the Council to give proper consideration to relevant human rights) as it believed the Charter did not "authorise the Council … to ignore" planning law but instead "may inform the application of planning law in appropriate cases" (at [57]).

The Council considered the proposed development's impact on the rights in the Charter had to be taken into account, stating it had a responsibility to take into consideration the proposal’s “anticipated significant social effects on the immediate neighbours, namely the respondent” (at [65]). The respondent argued that only "after hearing fulsome submissions and evidence" (at [83]) could the Tribunal accurately make a consideration as to how and to what effect the Charter would have on the application, stating that "fulsome submissions and supporting evidence" would be presented by the respondent as part of a hearing (at [75]).

The fundamental question for the Tribunal was not whether the grounds identified in the Charter were applicable (and therefore could be considered by the Council to have made its decision in relation to the application) but whether Ground 4 and Ground 7 were, as a result of referencing the Charter, “misconceived or lacking in substance”, in accordance with section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) for the purposes of striking out, and summarily dismissing Grounds 4 and 7 (at [30]).

Decision

The Tribunal held that “it is a high bar to establish that part or all of a proceeding should be struck” (at [31]). The Tribunal stated that it “will only strike out part of a proceeding in circumstances where it is clear … that the part which strike out is sought is absolutely hopeless, clearly untenable or so obviously unsustainable in fact or law that on view could it justify relief” (at [100]). The Tribunal stated that “[t]he 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" (at [114]). Ultimately, the Tribunal determined that it was not persuaded that “circumstances exist that warrant or justify a strike out of Ground 4 or Ground 7” (at [147]).

The Council's Ground 4

The applicant contended that Ground 4 should be struck out "on the basis that it is misconceived or lacking in substance" (at [34]). In particular, the applicant, in respect of section 13 of the Charter, submitted that:

a. the Charter only limits interferences that are unlawful or arbitrary;

b. a lawful interference is one that is authorised by law that is adequately accessible and formulated with sufficient precision to enable a person to regulate their conduct by it; and

c. "arbitrary" in this context has been held to mean interference "which … are capricious, unpredictable or unjust … or unreasonable … "(at [40]).

Regarding section 17, the applicant submitted that Jai, the respondent's son, was no longer a child for the purposes of section 17, and that the development proposal would not "separate the respondent's family or prevent them from being a family for the purpose of section 17(1) of the Charter" (at [41]).

The applicant further submitted that even if the development proposal was contrary to the Charter (alleged by the Council) "that of itself is not grounds for refusal under planning law" (at [46]) and " … the Charter does not override planning law" (at [47]).

The Council, relying on submissions from the respondent, contended the development proposal would impact on the respondent's son's enjoyment of their backyard and that this enjoyment was protected by the Charter and must be considered (at [68]). The Council also argued that "there was no basis for striking out the Grounds" (at [73]) relying on previous cases, including Divas Properties Pty Ltd v Glen Eira CC [2010] VCAT 1874 which accepted that "section 17 of the Charter applies to the Tribunal in considering whether a permit should be granted for a development" (at [72]).

In making its decision, the Tribunal summarised "the applicant contends that Ground 4 should be struck out because the Charter rights were not limited and because 'Charter contrariness' is not itself a proper ground of refusal" (at [104]). The Tribunal, having regard to the information presented, was not persuaded that the Charter rights relied on for Ground 4 "are not relevant to the planning decision-making before the Tribunal", that "the Charter rights relied upon … are not limited by the proposal", nor that "if the Charter rights relied upon by the Council and the Respondent are limited by the proposal, that that limit under planning law is reasonable and demonstrably justified having regard to the matters set out in section 7(2) of the Charter" (at [136]). Accordingly, and these arguments were not a basis to strike out Ground 4 (at [137]).

The respondent's Ground 7

Regarding the respondent's Ground 7, the Tribunal summarised "[t]he Applicant also contends that Ground 7 should be struck out because the respondent has not articulated how any of the Charter rights asserted require the Tribunal to depart from the conventional assessment of amenity impacts that is undertaken through the Scheme" (at [105]).

The Tribunal had regard to the applicant's claims that Ground 7 was not framed in such a way that it identified how any of the rights in the Charter would lead the Council to depart from “a conventional assessment of the amenity impacts of the proposal” (at [36]) by reference to policies and provisions. The applicant had also claimed that section 17 did not apply as Jai was over the age of 18 and therefore not a child, and that the development would not separate or otherwise prevent the respondent and her children from being a family.

Relying on Certain Children v Minister for Families and Children (No 2) [2017] VSC 251, the respondent highlighted that the "threshold for identifying the engagement of a Charter right is low" (at [77]) and accepted that "… she bears the onus of identifying the Charter rights that are engaged and establishing those rights will be limited" (at [80]). The respondent also submitted that this submission and assessment is "properly done at the merits hearing" (at [80]) and the application of section 13 would be "further explained in submissions and through evidence at the merits hearing" (at [85]). With regard to section 17, the respondent contended the effect was broader that the notion of separation "as a consequence of the proposal, and that she may call evidence in support of her position" (at [88]).

The applicant made further submissions that for the purposes of sections 8(2) and (3) of the Charter, "discrimination" was given the meaning in the Equal Opportunity Act 2010 (Vic) (Act) and may be direct or indirect discrimination. The applicant raised that the respondent is responsible for proving that the “requirement, condition or practice disadvantages persons with an attribute, not simply one particular person with a particular attribute” (at [43]), noting that personal belief was not sufficient for the purposes of the Act.

The applicant further asserted that for the rights in sections 8(2) and (3) to be limited, it would need to be shown that the granting of the permit would disadvantage Jai specifically because of his autism diagnosis and that even if there was a disadvantage that it would need to be shown as unreasonable. The applicant relied on its compliance with other legislative and policy requirements to highlight this was not the case.

The Tribunal agreed with the applicant's reasoning and noted that the respondent would need to produce evidence at a hearing to show that it was not only her son that would be affected by the proposal (at [134]). The respondent asserted this would be done and that it would be necessary to fully assess whether this would apply and for the Tribunal to assess whether any discrimination was unreasonable and to show that the proposal will disadvantage persons with that particular attribute, in this case, autism.

The Tribunal was of the view that "[t]he 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" (at [114]) . Accordingly, and similarly to Council's Ground 4, the Tribunal was not persuaded that the Charter rights relied on for the respondent's Ground 7 "are not relevant to the planning decision-making before the Tribunal", that "the Charter rights relied upon … are not limited by the proposal", , nor that "if the Charter rights relied upon by the Council and the Respondent are limited by the proposal, that that limit under planning law is reasonable and demonstrably justified having regard to the matters set out in section 7(2) of the Charter" (at [136]). Accordingly, these arguments were not a basis to strike out Ground 7 (at [137]).

Applicability of the Charters

As set out above, the applicant's argument regarding Council's Ground 4 was that even if the applicant's development proposal was contrary to the section 13 or section 17 of the Charter, that alone would not be enough to refuse the application under the existing mechanisms in the planning law. The applicant further argued that the Charter should not be read as being able to override the planning law.

The applicant contended that section 38(1) of the Charter, which relevantly states that "it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right" does not go so far as to allow the Council to make a decision not allowed by the planning law. The applicant argued that the Council was only able to make the same decisions in applying the relevant planning law and when applying the Charter as part of making the decision. That is, if the planning laws allowed for only one decision, the Council could not reach a different decision simply by applying the Charter as part of the decision making process.

Section 38(2) of the Charter provides that "subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision". Accordingly, the applicant submitted that where proper consideration of the Charter rights cannot be achieved as a result of restrictive statutory requirements (at [55]), including the planning laws, then section 38(1) of the Charter would not apply as a result of section 38(2), meaning the Council would not be required to give consideration to a human right, as required by section 38(1).

The respondent argued that the limitation in section 38(2) of the Charter would not release the Council from its obligations under section 38(1), as section 38(2) was only relevant "where there was no discretion provided to the decision maker under the applicable laws" (at [95]) and that planning law was "inherently discretionary" in that it allows for a range of requirements and considerations as part of determining a proposal satisfied all the relevant conditions.

The Tribunal considered the applicability of the Charter to the Council and noted that:

The Charter’s main purpose is to protect and promote human rights. It seeks to do this through … ensuring all statutory provisions are interpreted so far as I possible in a way that is compatible with human rights, and, by imposing an obligation on all public authorities to act in a way that is compatible with human rights (at [15]).

In making this observation, the Tribunal had regard to the requirements of section 6(2) of the Charter. The Tribunal was satisfied that the Council was a "public authority" for the purposes of the Charter in making a decision on the permit, and so too was the Tribunal in making a decision regarding the application before it.

Citing Certain Children v Minister for Families and Children (No 2) [2017] VSC 251, the Tribunal noted that the Court's comments were that the “threshold for identifying the engagement of a Charter right is low, that rights are to be construed in the broadest possible way and that a public authority must understand in general terms how the rights may be relevant” (at [77]).

The Tribunal was not persuaded that section 38(2) of the Charter applied and that section 38(1) would not apply, but noted that the Tribunal that hears the merits of the application might be persuaded that section 38(2) of the Charter applies in the circumstances (at [145]).

Commentary

This matter demonstrates that consideration of the Charter in the planning process may be relevant and should be considered on merit.

The Tribunal rejected the applicant's submission that the grounds raised by both the respondent and Council regarding sections of the Charter should be struck out without having been considered or supporting evidence provided. The implication being that the human rights considerations raised in these grounds were not seen to be "absolutely hopeless, clearly untenable or so obviously unsustainable in fact or law that on view could it justify relief” (at [100]), suggesting such grounds may be considered as part of assessing a development application, subject to sufficient evidence to support the reliance.

The ultimate outcome of the challenge to the development application remains to be seen as the full consideration of the grounds, including any supporting evidence, will occur as part of a merits based assessment in the next stages of the hearing.

The full decision can be read here.