Planning and the Victorian Charter of Human Rights

In the recent case of McClelland v Golden Plains SC [2013] VCAT 749 the Tribunal has again considered the Victorian Charter of Human Rights and its interaction with Planning Schemes. The case concerned a permit for telecommunications infrastructure.

The Tribunal notes that with respect to privacy – the Charter is concerned with an arbitrary or an unlawful interference with privacy. The Tribunal made the following comments:

Although it is not necessary to finally decide the issue more broadly than as stated in these reasons, it is perhaps worth commenting that, given:

  • the way in which the right to privacy is qualified in s 13 of the Charter (i.e. interference with the right may not be unlawful or arbitrary);
  • the reasonable limits on the right to privacy that might be justified in a planning context by reference to s 7(2) of the Charter; and
  • the structure of the planning regulatory framework and planning schemes in Victoria–

– it would be a rare and exceptional case where a planning scheme provision was not Charter compatible, or that a planning discretion properly exercised within the limitations of the planning regulatory framework would be viewed as anything other than a lawful, reasonable, proportionate and justifiable limitation on a person’s right to privacy. Each case will however turn on its own facts and circumstances.

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