Urban planning and administrative law
🏙️ Urban Planning and Administrative Law –
📌 1. What is Urban Planning?
Urban planning involves the regulation and development of land use, building construction, and infrastructure in urban and regional areas. It aims to balance:
Economic growth,
Environmental protection,
Social equity, and
Public interest.
In Victoria, urban planning is governed by:
Planning and Environment Act 1987 (Vic),
Local planning schemes, and
Oversight by authorities like local councils and the Victorian Civil and Administrative Tribunal (VCAT).
📌 2. What is the Role of Administrative Law in Urban Planning?
Administrative law governs the process of urban planning decisions, ensuring:
| Principle | Explanation |
|---|---|
| ✅ Legality | Authorities must act within statutory powers (ultra vires doctrine). |
| ✅ Procedural fairness | Affected parties must be given a fair hearing, especially in permit objections. |
| ✅ Proper purpose and relevance | Decisions must consider relevant planning controls and policies, not personal or irrelevant factors. |
| ✅ Reasonableness and rationality | Discretion must be exercised logically and reasonably. |
| ✅ Judicial/Tribunal Review | Planning decisions are subject to review by VCAT or judicial review by the Supreme Court (Order 56). |
📚 3. Key Victorian Case Law – Urban Planning and Administrative Law
🔹 Case 1: Save Our Suburbs Inc v Yarra City Council [2008] VCAT 1678
📌 Facts:
A community group challenged Yarra City Council’s approval of a high-density development, arguing inadequate consultation and failure to consider neighborhood character.
⚖️ Held:
VCAT ruled that while councils have discretion in planning, they must consider the planning scheme, including neighbourhood character, height limits, and amenity impacts.
✅ Significance:
Demonstrates how administrative law principles (like relevance of considerations) apply to planning permit decisions.
Reinforces that councils must justify decisions with reference to planning instruments.
🔹 Case 2: Winky Pop Pty Ltd v Hobsons Bay CC [2007] VCAT 2343
📌 Facts:
A developer challenged the council’s failure to make a decision within statutory timeframes, claiming constructive refusal of the planning permit.
⚖️ Held:
VCAT confirmed that failure to decide within time allows applicants to appeal as if the application was refused.
Tribunal stressed that timely decision-making is a procedural requirement under the Planning and Environment Act.
✅ Significance:
Shows administrative law enforcing procedural obligations in urban planning.
Prevents councils from stalling development through inaction.
🔹 Case 3: Hookey v Moorabool Shire Council [2013] VCAT 1261
📌 Facts:
An applicant was denied a permit for a residential development. They alleged bias in council decision-making due to local councillors' personal interests.
⚖️ Held:
VCAT held that procedural fairness had been compromised due to apprehended bias.
Emphasised the "no one shall be a judge in their own cause" principle (nemo judex in causa sua).
✅ Significance:
Applies bias rule in administrative decision-making within urban planning.
Councils must avoid even the appearance of bias when making development decisions.
🔹 Case 4: Responsible Authority v A & B Investments Pty Ltd [2005] VCAT 1102
📌 Facts:
A developer began construction contrary to planning permit conditions.
The Council issued an enforcement order.
⚖️ Held:
VCAT upheld the order, noting that compliance with permit conditions is essential.
Non-compliance amounted to unauthorised development.
✅ Significance:
Reinforces legality principle: all development must strictly comply with statutory and permit conditions.
Highlights VCAT’s enforcement powers under the Planning and Environment Act.
🔹 Case 5: Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSC 493
📌 Facts:
The Council sought Supreme Court judicial review of VCAT's decision to approve a large mixed-use development.
Alleged VCAT misinterpreted planning scheme provisions.
⚖️ Held:
Supreme Court found that VCAT had acted within jurisdiction and had given due regard to the planning controls.
Judicial review did not allow merits reassessment.
✅ Significance:
Clarifies the limits of judicial review: courts only examine legal errors, not planning merits.
Courts defer to VCAT on planning judgments, provided procedural and legal standards are met.
🧾 Summary Table
| Case | Issue | Administrative Law Principle | Outcome |
|---|---|---|---|
| Save Our Suburbs v Yarra CC | Ignoring planning policies | Relevance of considerations | Decision scrutinised |
| Winky Pop v Hobsons Bay CC | Delay in decision | Timely administrative action | Developer allowed to appeal |
| Hookey v Moorabool SC | Bias in decision-making | Procedural fairness / Bias | Decision invalid |
| Responsible Authority v A & B Investments | Breach of permit | Legality / Enforcement | Enforcement upheld |
| Boroondara CC v 1045 Burke Road | Council review of VCAT decision | Scope of judicial review | VCAT decision upheld |
🎯 Conclusion
Urban planning decisions are a key site for administrative law principles in action. In Victoria:
Local councils and VCAT must act within the limits of their statutory authority,
Follow fair procedures,
Consider relevant planning controls, and
Provide opportunities for public input where required.
Administrative law ensures that urban planning processes remain transparent, fair, and legally accountable.
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