Gembrook Views Estate Pty Ltd v Cardinia Shire Council – May 2017

This case concerned a developer (the Applicant) who sought declarations from the Victorian Civil and Administrative Tribunal that two agreements it made with the Cardinia City Council under s 173 of the Planning and Environment Act 1987 and the issuing of a planning permit, each restricting ownership and/or occupation of land in Gembrook to people over 55 years of age, amounted to age discrimination under sections 50 and 52 of the Equal Opportunity Act 2010.

The Applicant also claimed that the Council had authorised or assisted the discrimination by issuing the permit and requiring the Applicant to enter into the s 173 Agreements. In response, the Council claimed in that the conduct was a special measure or was not discriminatory, and that making the declarations sought was outside the Tribunal’s jurisdiction.

As this is the first time the Tribunal’s Planning and Environment List had considered the Equal Opportunity Act, the Commission intervened to make submissions on the Equal Opportunity Act framework, definitions of discrimination, the interpretation of sections 50 and 52 of the Equal Opportunity Act, the proper approach to special measures, and the potential for other exceptions to apply to the conduct.

Deputy President Dwyer dismissed the application in full, in part for want of jurisdiction, and in part on substantive and discretionary grounds.

• Jurisdictional ground: the Applicant’s declarations were about things done under the Equal Opportunity Act, not the Planning and Environment Act, and so there was no jurisdiction to hear them in the Planning List through an application under the Planning and Environment Act. Rather the Applicant could have sought an exemption under s 89 of the Equal Opportunity Act for the conduct, or applied in the Human Rights List for a breach of s 105 of the Equal Opportunity Act.
• Substantive ground: the planning documents in question were not ultra vires as claimed by the Applicant.
• Discretionary ground: there was no reason to exercise discretion to make the declarations as the situation was of the Applicant’s own making

Deputy President Dwyer did not made substantive findings about the Equal Opportunity Act in terms of whether there was a breach or not.
However, he has made a number of observations about the interaction between the Equal Opportunity Act and the planning scheme and ordered that the Principal Registrar forward a copy of this decision to the Minister for Planning for consideration.

The Commission’s submissions and the decision of the Tribunal can be found below.