Unchain St Kilda (the applicant) argued at VCAT for a declaration that the St Kilda Triangle development plan is invalid. The applicant’s arguments can be divided into five categories and these are summarised below.

The applicant contended that the council’s approval of the development was invalid because it was not displayed for public comment. While the original plan was displayed, a later plan was not. The tribunal compared both the similarities and differences of the two plans and found that the second plan was not an entirely new plan, but merely an update of the original.

The applicants contended that further notice and opportunity to make submissions was required unless there is a clear contrary legislative intent. It was also found that when viewed together, a series of plans and schemes formed a comprehensive set of requirements overriding the presumption of additional duty. There was therefore no denial of natural justice.

The applicant failed to establish that the development had been unlawfully approved. The Council (not the Manager, City Development) approved the Development Plan. Even if the Manager required a formal delegation in order to implement that “conditional approval” through a “final approval” of the revised version of the Development Plan in August 2008, the tribunal was satisfied that such delegation was sufficiently and properly granted.

The applicants argued that there was no valid approval of the Development Plan because the Council failed to properly consider the consistency of the plan with the Planning Scheme. The tribunal found that the Planning Scheme did not have to actually be adopted, rather that its merely had to be considered, which it duly was. Similarly, the applicants failed to show that the Council failed to properly consider local planning policies as required by cl 4 DPO-1. The tribunal emphasised that in coming to this decision he did not consider the merits or demerits of the development. Further, the applicants failed in their argument that the changes to the development plan were uncertain. The tribunal found that although some conditions could have been clearer, none are void for uncertainty as they all have an ascertainable meaning. Finally, minor non-compliance with conditions did not invalidate the Development Plan given the intent and purpose of each condition has been met.

The applicants argued that no Council acting reasonably could have approved the development, having regard to the planning schemes and plans, known as the ‘Wednesbury unreasonableness’ principle. The tribunal approved of this principle but reiterated that for it to apply it must be more than that the decision is a poor one that is not preferred. For VCAT to intervene, the tribunal felt that the Council’s approval must lack any plausible justification that no reasonable body of persons could have reached them (East Melbourne Group Inc v Minister for Planning [2005] VSC 242). The facts here did not reach this high threshold. Hence, the applicants’ argument failed on this ground.

While not a landmark case in itself, this case provides an explanation of the primary grounds for administrative review of a decision and demonstrates how difficult it can be to prove that the decision making process was flawed.

• The full decision is available on Austlii

• unChain St Kilda - details of about the Applicant in this case and the unChain St Kilda campaign