Application of Charter to Planning Schemes, Decisions and Considerations

Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010)

A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter.  VCAT also held that a local council does not act in a way that is incompatible with the Charter when exercising its discretion to maintain, modify or delete a planning permit condition requiring the overlooking of premises to be mitigated.


Gary Stooke obtained a planning permit from Hobsons Bay City Council, authorising a pergola and first floor balcony to be added to his premises.  His architect, Rodger Smith, applied to VCAT to delete a condition of the permit.  The condition required a screen to be built on the balcony to prevent it overlooking an adjacent property, owned by John and Sharon Davey.

During the merits hearing, Mr Davey alleged that the proposed balcony, if not screened, would breach his right to privacy under s 13 of the Charter.  The issue was referred to Deputy President Dwyer for separate determination.


Deputy President Dwyer considered whether cl 54.04-6 of the Hobsons Bay Planning Scheme, which dealt with overlooking, infringed a Charter right.  In doing so, the Deputy President utilised the 'three-step process' set out by the Court of Appeal in R v Momcilovic [2010] VSCA 50.

The first step was to ascertain the meaning of cl 54.04-6 by applying s 32 of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).  Clause 54.04-6 provided for screens and other discretionary mitigation measures for balconies with direct views into existing secluded private open space and habitable room windows within 9 metres.  The Deputy President held that cl 54.04-6 was unambiguous.

The second step was to consider whether cl 54.04-6 breached a human right protected by the Charter.  The Deputy President found that cl 54.04-6 did not permit an unlawful or arbitrary interference with Mr Davey's right to privacy under s 13 of the Charter.  Rather, it created an ambit of regulatory discretion within which some interference with the right to privacy was allowed.  Deputy President Dwyer held that the discretion was not arbitrary, but was to be considered against appropriate guidelines that were responsive to the circumstances of a particular site and a particular planning decision.

The Deputy President also considered whether cl 54.04-6 infringed the property rights of Mr Stooke or Mr Davey, in contravention of s 20 of the Charter.  It was held that any imposition of reasonable restrictions on the use and development of their land was clearly in accordance with the law, and therefore not in breach of s 20.

Given that neither ss 13 or 20 of the Charter were infringed, the Deputy President stated that it was unnecessary to consider the third step of the process outlined in Momcilovic; that is, whether the limit imposed on the rights was justified under s 7(2) of the Charter.  Nonetheless, the Deputy President held that if those rights were breached, the limits imposed by cl 54.04-6 were justified, as consideration of any overlooking, and the implementation of mitigation measures, allowed for a proportionate and reasonable response.

The Deputy President then considered the application of s 38 of the Charter.  The issue was whether the Council or VCAT, in approving the proposed balcony without a screen, would act in a way that was incompatible with s 13, or, in making the decision, would fail to give proper consideration to the right to privacy.

A similar three-step process applied to the resolution of this issue.  Deputy President Dwyer held that the scope of the right to privacy was limited, as s 13 only disallows unlawful or arbitrary interference with that right.  Such interference did not occur in this case.  The possible overlooking of Mr Davey's property was found not to be unlawful.  There was no evidence of any intended nuisance.  Nor would any potential interference have been arbitrary.  A decision to delete or modify the planning permit condition was only permitted after the reasonable exercise of a regulatory discretion, based upon the particular circumstances of the particular site, and to which Mr Davey had third party rights of objection.  Accordingly, the Deputy President held that an unscreened balcony and some overlooking of Mr Davey's property were unlikely to establish a breach of s 38 of the Charter in the main proceedings.  Again, it was unnecessary to consider the third step, but the Deputy President held in any case that any limitation upon Mr Davey's right to privacy under s 13 was reasonable and proportionate.

The matter was referred back to Member Sibonis for final decision, having regard to the decision made by the Deputy President on the question of law.

Consideration of the Victorian Charter

Deputy President Dwyer made two noteworthy comments about the application of the Charter more generally.  The Deputy President stated that consideration of the Charter in circumstances of potential interference with a person’s privacy or home is ‘not something manifestly different to what is already required to be considered by a Tribunal member making a planning-based decision.’

The Deputy President also commented that despite each case turning on its own facts, it would be a ‘rare and exceptional case’ where a planning scheme provision was not compatible with the Charter, or where a planning discretion was not properly exercised within the limitations of the planning regulatory framework.  This is a result of the qualifications on the right to privacy in s 13 of the Charter, the general limitations clause in s 7(2) of the Charter, and the structure of the planning regulatory framework and planning schemes in Victoria.

The decision is at

Brad Barr is a Law Graduate with Allens Arthur Robinson