A minister's capitulation can have devastating effects on an individual.
THERE is a common conception that our Western traditions, founded in Magna Carta, ensure equality of the individual with the state. Equality in this context is taken to mean that the individual cannot be pushed around by the state and has equal access to the rule of law.
This is an important tradition because the state, supported by the vast resources of the taxpayer, a large bureaucracy and with access to its own publicity machine, has huge advantages over the individual.
There is nothing equal in this dynamic. The modern state, even in a democracy such as ours, has assumed powers that can and do crush individuals. This enormous power comes into full play when the political status quo is threatened.
Recently, I emerged from retirement as a lawyer to act pro bono in the case of a woman who was central to what has become known as the Minister for Planning's backflip in relation to Phillip Island. In September 2011, the minister notified the consultants to my client in writing that he had exercised his power under the Planning Act to rezone certain land on Phillip Island to residential. In fact, on September 8 I believe he signed what can rightly be described as a formal legislative document confirming the amendment to the Bass Coast Planning Scheme and in that document provided his reasons for doing so. One of his reasons was that " . . . the views of parties are reasonably known through the consultation process".
He and his staff knew that my client would act on that advice to buy the land in question for a large amount of money. Locals kicked up a fuss as was their right, but the minister stuck to his guns and even went on radio on September 16 to strenuously defend his decision. On September 20, one of his staff advised my client's consultant that the minister's approval would be formally gazetted on September 22. On September 21 my client heard on the radio that the minister had revoked his approval, with the result that the funding arranged by my client fell through. Consequently, she is facing financial ruin.
What attracted me to the case were the persistent suggestions of impropriety on my client's part, with the implication that she had persuaded the minister to act improperly.
Suspicion of impropriety is being generated by virtue of the fact that the retired politician Robert Maclellan introduced my client to an officer of the department in late August 2011 to determine whether a decision would be made by September 8. This was long after the evaluation was complete and presumably a recommendation had already been made to the minister by the department.
What has escaped attention is that the statement of claim issued in this case contains allegations indicating aggressive political representation to and by senior members of the Victorian government and the Liberal Party to pressure the minister to rescind his decision.
In the public debate, no mention is made of the fact that the application to the minister to rezone the land in question went through a lengthy and rigorous process of evaluation at multiple levels of government, and involved volumes of technical submissions from professionals, including environmental scientists to property demographers and economists.
No mention is made of the fact that Section 36(1) of the Planning Act makes it mandatory for the minister's approval to be gazetted. This legislative requirement exists specifically to prevent the very situation that has now occurred. There is a serious legal issue to be tried here because the law suggests the minister does not have the power to withdraw his approval.
No mention has been made of the fact that several approaches were made to the minister, through his lawyer, to mediate prior to issuing proceedings.
State resources are being deployed to establish some mischief on the part of my client so as to detract attention from the mysterious forces that persuaded the minister to capitulate and overthrow six months of extensive work by his department.
The individual cannot match the resources of the state, with the result that my client now faces bankruptcy, with the risk that the serious allegations she made will escape judicial scrutiny. Her penury will be the price she will have to pay to preserve the political status quo.
Frequently Asked Questions about this Article…
What happened in the Phillip Island rezoning case and why should property investors care about a minister's backflip?
In the article the minister for planning initially used power under the Planning Act to rezone land on Phillip Island to residential in September 2011, then revoked that approval days later. Everyday investors should care because approvals that look final can be reversed, which can collapse funding arrangements and leave buyers facing major financial harm.
How can a revoked ministerial approval affect my property investment or funding arrangements?
A revoked approval can destroy the basis for loans, contracts and investor plans— in the article the investor’s funding fell through after the minister’s revocation, leaving her at risk of financial ruin. This shows regulatory reversals can wipe out anticipated value and create insolvency risk for buyers who acted on an earlier approval.
What is 'gazettal' under the Planning Act and why does Section 36(1) matter for investors?
The article explains that Section 36(1) of the Planning Act makes it mandatory for a minister’s approval to be gazetted. Gazettal is the formal publication of the decision and, according to the piece, that requirement exists to prevent last‑minute withdrawals—meaning an approval that is properly gazetted may be legally protected from unilateral revocation.
Are there legal remedies if a planning approval is withdrawn after I acted on it?
The article notes a serious legal issue to be tried and describes a statement of claim and pro bono legal action on behalf of the investor, so legal proceedings can be a response. Investors should understand that remedies may exist but can be complex, costly and uncertain—seek specialist planning and litigation advice specific to the jurisdiction and facts.
How can investors do due diligence to reduce the risk of regulatory or political reversals on property deals?
The article highlights that applications went through lengthy evaluation and technical submissions involving environmental scientists, demographers and economists. Practical due diligence includes verifying the stage of ministerial approvals (including whether gazettal has occurred), reviewing departmental reports, checking public consultations and getting legal advice before committing large sums.
Can political pressure or lobbying cause a planning decision to be rescinded?
Yes. The article alleges aggressive political representation and pressure from senior government and party members persuaded the minister to rescind his decision, illustrating that political influence can play a role in planning outcomes and create unpredictable risk for investors.
What warning signs might indicate a planning approval is at risk of being overturned?
According to the article, warning signs include sudden public controversy, media statements by the minister contradicting earlier positions, late lobbying or approaches by political figures, and inconsistent communications from ministerial staff about gazettal dates. Investors should watch for these red flags and verify official documentation.
Why is it hard for an individual investor to fight a state decision, and what does that mean for my investment risk?
The article stresses the imbalance between the individual and the state—the state has taxpayer‑backed resources, a large bureaucracy and a publicity machine, making legal and public challenges difficult and expensive. For investors this means regulatory and political risk can be costly to contest, so those risks should be considered and mitigated in investment planning.
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