Hudson Yards Pty Ltd v Minister for Planning [2018] VSC 277
The Supreme Court of Victoria recently considered whether the power of the Minister for Planning to call in a proceeding before the Tribunal was valid. In determining the power was valid, the Court held that a compulsory conference (mediation) was a ‘preliminary hearing’, consequently the Minister’s notice to call in the proceeding was not out of time.
The decision is significant as it broadens the timeframe for the Minister to provide call in notices. It clarifies that the Minister has the power to call in a proceeding up until the time before the final hearing rather than until the time of any compulsory conference.
Call in powers of the Minister
The Victorian Civil and Administrative Tribunal Act gives the Minister for Planning power to call in a proceeding before the Tribunal, which is considering a decision made under the Planning and Environment Act 1987. The two circumstances under which the Minister can call in a proceeding are when:
- The proceeding raises a major issue of policy; and
- The determination of the proceeding may have a substantial effect on the achievement of planning objectives.
The Minister must give notice to call in before the final determination of the proceeding, and no later than 7 days before the day fixed for the hearing.
What constitutes a hearing?
In this case the call in notice was provided by the Minister after the completion of the compulsory conference, but over seven days before the scheduled commencement of the final hearing of the proceedings.
The key issue for the Court in considering whether the call in notices were valid was whether a compulsory conference constituted a preliminary hearing or a final hearing. If it constituted a preliminary hearing, the Minister would not be out of time to call in the proceeding.
The Court held that compulsory conferences are examples of preliminary hearings. It was held that there is nothing about a compulsory conference that represented a final determination of the rights of the parties or the merits of the proceeding. Consequently the call in notices of the Minister were valid.
Implications
Matters at the Tribunal can be called in and decided on by the Minister for Planning up until 7 days prior to the final hearing of the matter even if a compulsory conference has occurred.
How we can help you?
HWL Ebsworth Lawyers has advised extensively on call in powers in relation to a range of proceedings. Please do not hesitate to contact us to discuss the implications of this decision for your potential matter.
This article was written by Mark Bartley, Partner, James Lofting, Partner, David Vorchheimer, Partner and Disha Kamal, Law Graduate.