Role of VCAT in making consent orders to give effect to settlement agreed by parties

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

PRACTICE OR PROCEDURE - consideration of systemic issues

Role of VCAT in making consent orders to give effect to a settlement in a review proceeding; extent (if any) to which VCAT required to consider or determine merits

The nature of the making of consent orders by VCAT to give effect to an agreed settlement between the parties in a review proceeding is not usually, by its very nature, the subject of detailed analysis or commentary.

This proceeding essentially concerned a review of conditions in a Work Plan Variation under the Mineral Resources (Sustainable Development) Act 1990. As a result of a compulsory conference process, the applicant and decision-maker agreed a set of revised conditions and sought a consent order to give effect to the settlement.

Two other interested authorities (VicRoads and Latrobe City Council) had been given an opportunity to participate in the compulsory conference process, and indicated their agreement to the revised conditions. However, the Council's agreement was qualified, and the Council sought to place before VCAT substantial background material that it requested VCAT to consider as a matter of record in determining the application 'on the papers'. The applicant and decision-maker responded by noting that the Council was not party to the proceeding, and reiterated their request for the consent orders to be made.

The decision discusses VCAT's role in the making of consent orders in a review proceeding. VCAT is exercising a power under s 93 of the Victorian Civil and Administrative Act 1998 to give effect to a settlement agreed between the parties, rather than itself determining the merits of the underlying decision under review. Even if VCAT must still be satisfied that the decision agreed to by the parties is the 'correct or preferable decision', that does not require VCAT to investigate or be satisfied about all of the merits issues that may have required determination had the matter proceeded to a full hearing, or to consider other issues not directly related to the settlement of the particular proceeding before VCAT.

If the settlement and proposed consent orders are within jurisdiction, reflect an agreement reached by the parties to resolve their own dispute without duress, and where the outcome is within the broad range of acceptable outcomes on the material before VCAT, VCAT should not lightly interfere. That said, the power under s 93 is discretionary, and there may occasionally be circumstances where VCAT declines to give effect to a settlement where it considers that the agreement is not within the broad range of acceptable outcomes having regard to the decision under review and the relevant regulatory regime.

In the present case, VCAT made orders to give effect to the settlement.

Department Head, Department of Economic Development, Jobs, Transport and Resources

AGL Loy Yang Pty Ltd v Department Head, Department of Economic Development, Jobs, Transport and Resources (Red Dot) [2016] VCAT 1249

By consent, and pursuant to s 93 of the Victorian Civil and Administrative Tribunal Act 1998 to give effect to a settlement of the proceeding agreed by the parties:

1. The decision under review is varied so that the conditions attached as Annexure A to these orders are substituted, in place of the conditions of approval dated 27 November 2015, as the conditions of approval of the Work Plan for Mining Licence 5189.
2. No order as to costs.

1. Through an application for review to VCAT under the Mineral Resources (Sustainable Development) Act 1990 ('MRSD Act'), AGL Loy Yang Pty Ltd ('AGL Loy Yang') sought to review certain conditions in a Work Plan Variation ('WPV') granted on 27 November 2015 in respect of its Mining Licence 5189. The approval decision was made by the Department Head, Department of Economic Development, Jobs, Transport and Resources ('Department Head').
2. Following receipt of the application for review, VCAT directed that notice of the application be given to the Roads Corporation ('VicRoads') and Latrobe City Council ('Council'). Both VicRoads, as a referral authority, and the Council, as the municipal council, had been earlier consulted about the WPV during the statutory approval process.
3. The proceeding had been listed for a multi-day hearing commencing on 18 July 2016. However, as a result of discussions and negotiations between the parties and the interested authorities, including through an extended compulsory conference process, AGL Loy Yang and the Department Head have resolved their differences and agreed a set of revised conditions set out as Annexure A to these orders. The parties therefore seek orders by consent, in accordance with minutes of proposed consent orders provided to VCAT, to give effect to this agreed position.
4. The consent of the two interested authorities is not strictly required, as they are not parties to the proceeding. VicRoads has nonetheless indicated its agreement to the revised conditions, and has co-signed the minutes of proposed consent orders.

The position of Latrobe City Council in relation to the consent orders

1. The position of the Council is a little more equivocal. In response to the minutes of proposed consent orders, the Council on 15 July 2016 made a written submission to VCAT through its solicitors. Within that submission, it stated (amongst other things):

[8] The Council has reached agreement with the other parties regarding the terms of conditions to be imposed on the WPV 'without prejudice' to its original objection to the grant of the WPV ...

[10] As the form of the conditions has now been agreed, Council does not intend to make submissions regarding how the Tribunal should exercise its powers in determining the application before it, unless the Tribunal wishes to hear from the parties. It is content for the Tribunal to deal with the matter on the papers ...

1. The Council's reference to 'parties' is perhaps made in the more general sense of that word, as the Council is not formally a party to the VCAT proceeding, has no automatic status as a party under the MRSD Act, and has not been joined as a party under s 60 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act').
2. Putting the 'party' issue to one side, or even accepting that the Council has some default party status, it is sufficient to note that the Council has still nonetheless confirmed its agreement regarding the terms of the revised conditions (being the subject matter of the VCAT proceeding), and its intent not to make further submissions about that. However, its agreement is qualified in the sense that it is made 'without prejudice' and by reference to the other submissions it sought to place before VCAT.
3. Despite its qualified agreement to the WPV conditions, the Council submission then purports to make a further detailed submission more generally in relation to the WPV. That submission, including its attachments, refers to a broader based objection that the Council had made to the Department Head in July 2015 during the statutory approval process for the WPV. The Council had then expressed concern about, amongst other things, the expansion of the Loy Yang mine towards Traralgon (particularly having regard to Amendment C87 to the Latrobe Planning Scheme, and panel proceedings in relation to that Amendment), and a potential impact on the orderly development of parts of Traralgon. The Council sought further geotechnical monitoring to be carried out for subsidence and lateral ground movement to better define the consequences of open cut coal mining on the Traralgon Growth Area. The Council submission also refers to concerns arising from the outcomes and recommendations of the Technical Review Board in relation to the Urban Coal Buffer.
4. The Council submission to VCAT indicates that 'the Council is at pains to stress' that the resolution of the conditions in the current VCAT proceeding is not to be regarded as a withdrawal by the Council of its broader concerns. In particular, the Council has indicated that:

Though the conditions are resolved in the context of a conditions review, Council remains concerned that there remains a potential for the WPV to prejudice future decisions about the Urban Coal Buffer and the orderly planning of the area.

1. The Council requested that these broader concerns be noted by VCAT as a matter of record, and that its submission be considered by the VCAT members who had been constituted for the hearing, in now determining the matter 'on the papers'.
2. In partly accommodating the Council's desire to have its concerns noted, through the limited summary above, VCAT expresses no opinion about the Council's underlying concerns. In particular, the Council should have no expectation that, in giving effect to the settlement and proposed consent orders, VCAT has the information or resources to separately consider or be satisfied about the broader issues that the Council has raised. Nor does VCAT have the responsibility to be so satisfied.
3. VCAT's jurisdiction in this proceeding is essentially constrained by the application before it - a review of the WPV conditions. The two parties to the proceeding (AGL Loy Yang and the Department Head) have reached agreement regarding these conditions, and the two other interested authorities (VicRoads and the Council) have also indicated their agreement to the form of these conditions. In giving effect to a settlement in a proceeding of limited ambit, VCAT does not have an inquisitorial function to enquire into any underlying or broader issue of substance that the Council says that the resolution of the WPV conditions may not resolve.

Role and responsibility of VCAT in giving effect to a settlement

1. Given the Council submission, and the subsequent correspondence received by VCAT from the solicitors for AGL Loy Yang and the Department Head, it is perhaps useful to make some comments about the role of VCAT in giving effect to proposed consent orders to finally resolve a review proceeding - particularly in VCAT's Planning and Environment List.
2. Section 93 of the VCAT ACT provides:
   • (1) If the parties agree to settle a proceeding or any part of it at any time, the Tribunal may make any orders necessary to give effect to the settlement.
   • (2) The Tribunal's power to make an order under subsection (1) is exercisable by any member including, if the settlement is achieved through mediation conducted by a member, that member.

1. In Muto v Department of Planning and Community Development,[1] the Court of Appeal noted that the VCAT Act attempts to encourage a variety of forms of dispute resolution, including compulsory conferences in mediation, and the purpose of s 93 was to facilitate settlement proceedings. The Court of Appeal indicated that the power in s 93 of the VCAT Act would have been expressed more restrictively if it were intended to confine its operation only to the settlement of disputes between private individuals. It follows that s 93 also applies to the settlement of review proceedings.
2. Section 93 refers to a circumstance where the 'parties agree to settle a proceeding'. VCAT must therefore carefully identify who are actually the parties to the proceeding whose consent is required, and be satisfied that there is an agreement between those parties to settle the proceeding.
3. Section 93 also empowers VCAT to make 'any orders necessary to give effect to the settlement'. The 'necessary orders' that VCAT might make to give effect to a settlement in a review proceeding will commonly require it to make a consequential order (albeit by consent) under s 51(2) of the VCAT Act to affirm, vary, or set aside and substitute the decision under review.
4. However, in making consent orders to give effect to a settlement in a review proceeding, VCAT is primarily exercising the power under s 93 of the VCAT Act. It is not formally determining the application on its merits pursuant to the enabling enactment that gave rise to the decision under review, but rather it is considering the appropriateness and efficacy of the settlement as a matter of justice. Nor is the VCAT member who makes the consent order taking responsibility for the merits outcome in the same way as if he or she had fully and independently considered the matter and given a reasoned decision. As s 93 expressly states, the orders are to give effect to a settlement agreed by the parties. The very nature of the agreed settlement is that it is avoiding a merits decision being independently considered and imposed by VCAT.
5. In Muto, the Court of Appeal considered that the orders properly made under s 93 were based solely on the settlement reached by the parties. The Tribunal, howsoever constituted, needed to be satisfied of the efficacy of the settlement. Where the issues involved in the proceeding involved more than mere private rights and interests, it may involve the Tribunal being satisfied of the propriety and efficacy of the orders as a matter of public interest. However, this is in reality no different from the general responsibility of any court or tribunal to exercise its judgement in order to determine whether a settlement was appropriate as a matter of justice and, therefore, whether to make the order suggested to give it effect. [The case in Muto concerned a local government disciplinary matter, and the constitution of the Tribunal, but similar 'public interest' considerations will also arise as in many review proceedings.]
6. This position is broadly consistent with other recent judicial opinion in relation to consent orders in a court, albeit not directly arising in relation to s 93 of the VCAT Act or a review proceeding. It has been held that, although a consent order may be given the same legal effect as an order made after a hearing in the court, this does not impute any finding to the court. There is no finding of fact or law by the court that resolves the controversy between the parties. Where a consent order reflects an agreement of the parties in circumstances where no exercise of judicial power is required to determine the terms of the agreement, it is the agreement of the parties that settles the terms, and the consent order merely facilitates the enforcement of the compromise.[2]
7. To take a different view in relation to a VCAT review proceeding would effectively require a hearing by default, before any consent order could be made, with all of the associated costs and delays for the parties, and resource implications for the justice system. This would run contrary to the purpose and intent of s 93. It would be contrary to the purpose and objectives of VCAT in providing a forum for timely and cost-effective dispute resolution, including the use of mediation and compulsory conferences to promote a settlement between the parties.
8. I have indicated above that a potential difference between the settlement of a civil dispute and the settlement of review proceedings is that a decision under review will often involve matters of a public character. It has been suggested by some commentators that, in making a consent order in a review proceeding, VCAT must still be satisfied that the decision agreed to by the parties is the 'correct or preferable decision' under established principles applying to merits review proceedings. I do not disagree with this proposition, provided it is seen in its proper context, and that it is not seen to reinstate, by default, a requirement that VCAT must consider and determine the merits of the proceeding, or examine all of the issues in detail, in order to give effect to a settlement.
9. The key authorities for the proposition that a tribunal in a review proceeding has the function of making the 'correct or preferable decision' ordinarily relate to decisions following a hearing, with the tribunal's underlying task being to reach the correct or preferable decision 'on the material before it'.[3] In a planning context (albeit a little different to the MRSD Act context here), it has been suggested that VCAT is entitled to grant a statutory approval where it is satisfied that the approval will result in a reasonably acceptable outcome having regard to the matters relevant to its decision.[4] VCAT need not search for the ideal outcome.
10. The power under s 93 of the VCAT Act is discretionary. However, in considering whether a proposed consent order is a preferable decision comprising one of acceptable outcomes, it is highly relevant that the agreement reflects and promotes a settlement that is obviously acceptable to the parties. In a review proceeding, where the public decision-maker whose decision is under review is a consenting party to the settlement, VCAT can also reasonably assume that the decision-maker, in giving its consent, has had appropriate regard to all of the relevant matters it was required to consider under the enabling enactment (including relevant matters of a 'public' character) and that the consent position is in conformity with the relevant regulatory regime administered by that decision-maker.
11. In most instances, in exercising the discretion under s 93 in review proceeding, VCAT need do no more than consider whether the settlement appears to be generally satisfactory and within the range of acceptable outcomes on the material before it, having regard to the subject matter of the proceeding and the broad nature of the decision under review, and that there is nothing overtly wrong or odd about it. VCAT therefore still has an important role to play in providing a 'check and balance', albeit in many cases to a relatively cursory level.
12. Where the decision under review is of a public character, as is often the case in VCAT's Planning and Environment List, VCAT may also properly consider whether the settlement has any overtly unreasonable outcomes in the public interest or for persons not party to the agreement. This is essentially the 'flipside' of the same consideration as to whether the settlement is within the range of acceptable outcomes. By reference to the decision in Muto, VCAT is still doing no more than considering the appropriateness and efficacy of the settlement as a matter of justice. VCAT is still considering whether to exercise a power under s 93 to give effect to a settlement, rather than itself determining the merits of the underlying decision under review or the proposed settlement.
13. If the settlement is within the broad range of acceptable outcomes on the material before it, VCAT should not lightly interfere, and it is not under any obligation to investigate or consider all elements of the matter in detail. This is the case notwithstanding that the settlement may not reflect the preferred decision of the member making the consent order had he or she separately decided the matter following a full hearing. As I have said, VCAT can commonly assume that the consenting decision-maker has (or should reasonably have) taken such matters into account in reaching the settlement.
14. It follows nonetheless that, in some cases, VCAT may exercise a discretion not to make a consent order to give effect to a settlement. VCAT is not a rubber stamp for any or all consent orders placed before it to finally resolve a proceeding.
15. With all of this in mind, VCAT can still make the 'correct or preferable decision' in giving effect to a consent order under s 93 of the VCAT Act in a review proceeding. It is still the preferable decision if it is within jurisdiction, reflects an agreement reached by the parties to resolve their own dispute without duress, and where the outcome is within the broad range of acceptable outcomes on the material before VCAT, without VCAT having to undertake a detailed examination of the merits of the underlying decision under review.
16. VCAT will often be assisted in making a consent order if the parties provide relevant material (along with the proposed consent order) to explain why the agreed settlement is acceptable. This is less necessary where a consent order is being made by a member following a compulsory conference, and where the member facilitating the compulsory conference will already be familiar with how the terms of settlement have been reached. However, for consent orders in review proceedings that are sought more generally 'on the papers', VCAT will often be assisted by a brief explanation that provides the key rationale for the decision-maker's agreement to change or amend its original decision.
17. However, it is not particularly helpful to VCAT if a person or party involved in a settlement seeks to unilaterally provide extensive additional material on issues beyond those that relate to the acceptability of the agreement, and requests VCAT to 'consider' that material in 'determining' the proceeding. VCAT readily accepts that a settlement commonly involves a pragmatic and sometimes uneasy compromise, and that there will often be underlying differences that remain between the parties notwithstanding that they have agreed to settle a particular VCAT proceeding. However, in exercising its discretion under s 93 of the VCAT Act, VCAT is not directly concerned with the principled or legal views that initially underscored a dispute, or surrounding disputes that do not form part of the proceeding before it, but rather with the general acceptability of the agreement that settles the particular VCAT proceeding. In the present case, the Council submission raising additional issues about the WPV 'as a matter of record' is no doubt well-intended, but it is not a matter that I give weight to in giving effect to the proposed consent orders to settle the more limited ambit of this proceeding.
18. Finally, I have earlier indicated that the Council requested that its submission be considered in determining the matter 'on the papers' by the VCAT members who had been constituted for the hearing (a legal member and a member with environmental expertise) rather than only by the member who had conducted the compulsory conference. An order under s 93 of the VCAT Act may be made by 'any member'. Where a settlement arises following a compulsory conference process, it will usually be the member who conducted the compulsory conference who is best placed to make the order to give effect to the settlement - both as a matter of administrative convenience, and because that member will also be well-placed to consider whether the settlement is within the broad range of acceptable outcomes. This is particularly the case in VCAT's Planning and Environment List where compulsory conferences in complex matters are undertaken (as in this case) by an experienced member with expertise relevant to the subject matter of the proceeding. The member who conducted the compulsory conference in this proceeding could conveniently have made the consent order to give effect to the settlement.
19. As a result of the Council submission, and the brief responses from AGL Loy Yang and the Department Head, this matter was referred to me as the member who would have presided at the hearing. However, it will be apparent from what I have said that I do not consider that this was necessary, nor have I involved in this s 93 process the other specialist member who would have been involved in the hearing, nor do I purport to determine this proceeding on its merits.

1. Having reviewed the proposed WPV conditions annexed to the minutes of proposed orders, and material before VCAT that is relevant to this particular proceeding, I consider that the proposed consent orders are within VCAT's jurisdiction, and that the settlement that the parties and other interested authorities have reached is within the range of acceptable outcomes having regard to the subject matter of the decision under review. In reaching this conclusion, I have assumed that the Department Head, in consenting to the settlement, has taken into account all relevant matters under the relevant regulatory regime, including relevant matters of a public character.
2. Based on the information available to VCAT, I consider it is appropriate to give effect to the settlement, and to make the consent orders proposed.

These conditions shall apply to the Approved Work Plan as varied on:

1. Definitions:
   • 1.1 'Risk Assessment and Management Plan' means the Risk Assessment and Management Plan the Licensee is required to conduct in accordance with condition 1A of the Schedule of Conditions to Mining Licence No. 5189.
   • 1.2 'WPV' means the Work Plan Variation lodged on 5 October 2015.
   • 1.3 'Trigger Action Response Plans' means the Trigger Action Response Plans set out in section 5.5 of the WPV.
   • 1.4 'Department Head' bears the same meaning as that term is defined in section 4(1) of the Mineral Resources (Sustainable Development) Act 1990.
   • 1.5 'FIRM' means the Licensee's Fully Integrated Risk Management assessment matrix in the form contained in Appendix 1 to the WPV.
2. Proposed developments (Schedule 15 - 4)
   • 2.1 The Licensee must undertake works in accordance with the statements of current practices described in WPV, unless the current practice is specifically stated to change in the future within the WPV. Sections of the WPV that include statements of current practices where a departure from that practice in the future is not specifically mentioned include, but are not limited to:

1. Table 1.3.2.1 Key changes in this work plan variation 2. Section 3.3 Mine development

1. Section 3.4 Site infrastructure.

1. Section 3.4.1 Ash system and disposal 2. Section 3.4.2 Fencing and security 3. Section 3.4.3 Parking 4. Section 3.4.4 Roads 5. Section 3.4.5 Fire service system 6. Section 3.4.6 Surface drainage 7. Section 3.4.7 Drainage 8. Section 3.4.8 Overburden runoff system

1. Section 3.5 Risk Management approach 2. Section 4.3 Revised mine development plan 3. Section 4.3.9 Overburden on the Northern Batters 4. Section 5.3 Assessment of Geotechnical and Hydrogeological risks 5. Section 5.3.1 Ground Control Management Plan 6. Section 5.3.4 Undertaking regular Loy Yang Mine geotechnical stability analysis. 7. Section 5.3.7 Permanent Batter design 8. Section 5.4.2 Assessing overburden dump stability. 9. Section 5.4.3 Excavation controls

1. Section 5.5 Geotechnical and hydrogeological risk controls

1. Section 7.5 Environmental Auditing

1. Section 8.3 Identification of affected community 2. Section 9.3 Systems and procedures
2. Extent of extraction (Schedule 15 - 4(b))
   • 3.1 The Licensee shall not:

1. extend the mine development (Extraction Limit), or permit the mine development (Extraction Limit) to be extended, beyond the areas approved for mining in the WPV; 2. excavate the mine crest, or permit the mine crest to be excavated, outside of the Extraction Limit into the Coal Operational Area as shown on Figure 10 of the WPV as part of: 1. mining, or 2. rehabilitation or any other ground disturbance works, unless the licensee first provides the Department with evidence that the proposed rehabilitation or other works comply with the Aboriginal Heritage Act 2006, including any requirement for the preparation of a cultural heritage management plan.

1. undertake any activities, or permit any activities to be undertaken, outside the Extraction Limit within the Coal Operational Area as shown on Figure 10 of the WPV, other than as set out in the WPV;

1. increase the area of land covered by the external overburden dump as described in Figure 4A of the WPV, or permit this area of land to be increased, other than as set out in the WPV; 2. dump overburden, or permit the dumping of overburden, above the northern batters other than the overburden already in place and rehabilitated at the date of approval of the WPV.
   • 3.2 For avoidance of doubt, Mine Development Areas shown in Figure 9 of the WPV are as indicated in Revision 5 dated 25 September 2015.
2. Sequence of open cut extraction (Schedule 15 - 4(c))
   • 4.1 No later than twelve (12) months from date of approval of the WPV, the Licensee shall provide to the Department a schedule of works the Licensee will commence or complete in Stage C, Table 4.3.1.1 of the WPV that includes:
     1. mine plan milestones and dates by which milestones will be completed;

1. major components of the mining sequence and mine structures;

1. details of all geotechnical/hydrogeological/environmental investigations;

1. reviews of mining hazards risk assessments and reports in relation to risk assessments; 2. details of any alteration(s) to, or development of, control systems related to aquifer depressurisation and groundwater management, including those that have consequences for groundwater licencing and- the environment; 3. details of alteration(s) to mine risk management control systems including, but not limited to, fire or depressurisation systems; and 4. progressive rehabilitation works.
   • 4.2 No later than six (6) months prior to the commencement of each of Stages D and E, Table 4.3.1.1 of the WPV, the Licensee shall provide to the Department a schedule of works the Licensee will commence or complete in that stage that includes:

1. mine plan milestones and dates by which milestones will be completed, and alterations to mining compared with the then current stage; 2. major components of the mining sequence and mine structures;

1. details of geotechnical/hydrogeological/environmental investigations;

1. reviews of mining hazards risk assessments and reports in relation to risk assessments; 2. details of alteration(s) to, or development of, control systems related to aquifer depressurisation and groundwater management, including those that have consequences for groundwater licencing and the environment; 3. details of alteration(s) to mine risk management control systems including, but not limited to, fire or depressurisation systems; and 4. progressive rehabilitation works.
   • 4.3 The schedules referred to in:
     1. Conditions 4.1 and 4.2 shall include the proposed timing of commencement and completion of each major work, major investigation, and major review;
     2. Condition 4.2 shall include a description of any alterations to the schedule of works the Licensee provided in respect of a previous stage.
   • 4.4 The licensee must update the Risk Assessment and Management Plan to include an assessment of the risks and the controls for the activities set out in condition 4.1 and 4.2 prior to commencing any of the works in Stages C, D and E.
   • 4.5 If at any time, the licensee proposes to alter the proposed mine plan, design or operation as set out in Stages C, D and E of the WPV, or the contents of the Schedules required by Conditions 4.1 and 4.2, then if the alteration increases the risk to the environment, public safety or public infrastructure to level eight (8) or greater using FIRM, the licensee must first:
     1. conduct a risk assessment in respect of any alteration(s) and provide the risk assessment to the Department; and
     2. state in a risk management plan the measures that will be used to mitigate and control all risks identified in the risk assessment, and the timeframes for implementation of these measures, and provide the Department with a risk management plan that is to the satisfaction of the Department Head.
   • 4.6 The Licensee must:
     1. implement the measures outlined in the risk management plan provided under condition 4.5(b), within the stated timeframes;
     2. inform the Department as soon as possible if it proposes to not implement a measure outlined in the risk management plan within the stated timeframe, or proposes to change a measure outlined in the risk management plan, and give reasons for the non-implementation or change, and outline the alternative measure the Licensee proposes to implement to address the risk identified in the risk assessment, and the timeframes for implementation of the measure. Any alternative measure the Licensee proposes must be to the satisfaction of the Department Head.
   • 4.7 The Licensee must provide the Department with results of trials conducted in relation to ash disposal as described in Section 4.3.6 of the WPV when they become available.
   • 4.8 The Licensee must not undertake ash disposal as described in Section 4.3.7 of the WPV within the internal overburden dump until it has obtained written approval from the Department Head.
   • 4.9 When seeking the Department Head's approval, the Licensee must:
     1. have obtained all necessary approvals; and
        1. provide evidence of those approvals to the Department Head three months prior to the date it proposes to commence ash disposal.
   • 4.10 The Licensee must not commence a Sheepwash Creek diversion detailed in Section 4.3.8 of the WPV until it has provided the Department a clear and detailed design of the diversion stage and the preventative monitoring systems relating to stability and the environment in respect of the diversion stage, to the satisfaction of the Department Head.
2. Ground Control Management Plan (Schedule 15 - Parts 2, 3 - 6)
   • 5.1 The Licensee shall:

1. continue to produce the Ground Control Management Plan (GCMP) specified in Section 5.3.1 of the WPV in order to assist it to comply with Schedule 15, Part 2, (3) - (6) of the Mineral Resources (Sustainable Development) (Mineral Industries) Regulations 2013; 2. review the GCMP at least annually as stated in Table 5.3.1.1 of the WPV, or more frequently than annually if required by the Department Head.

1. Submit the GCMP to the Department annually.
   • 5.2 The GCMP shall include an individual review of each mine domain as shown in Figure 23 of the WPV. In this review the Licensee shall:

1. define and attach the geological, hydrogeological, geotechnical and environmental characteristics and risks specific to each mine domain in accordance with the GCMP and any other relevant management plans ("Domain Specific Mine Stability Review"); 2. prepare and maintain a mine stability risk register that identifies, assesses, and categorises the risks to public safety, public infrastructure, the environment and rehabilitation arising out of the operations of each mine domain and the consequential impact(s) on mine/ground stability ("Mine Stability Risk Register").

1. indicate whether there is any need to review the applicable independently facilitated risk assessment approved by the Department Head (which at the date of these conditions is the risk assessment approved on 19 May 2016, but noting that this document may be updated from time to time). Any review of the previously approved risk assessment shall include input from relevant experts in respect of each risk identified in the Mine Stability Risk Register ("Mine Stability Risk Assessment"). Any revised Mine Stability Risk Assessment must: 1. take into account works the Licensee will undertake in current and future mine stages, including rehabilitation and closure/post-closure; 2. detail the management strategies and controls the licensee will implement to address each risk identified in the Mine Stability Risk Register, taking into account works the Licensee will undertake current and future mine stages, including rehabilitation and closure/post-closure; 3. outline the timeframe for implementation by the Licensee of each management strategy and control; and 4. be prepared in accordance with applicable guidance material or practice notes, and otherwise be consistent with good industry practice.

1. determine Trigger Action Response Plans for each mine stability risk rated as level 8 or greater in a Mine Stability Risk Assessment using FIRM. Implement the measures in each Trigger Action Response Plan by the timeframe stated in the Trigger Action Response Plan for the implementation of each measure; and 2. to the extent relevant take account of any analysis prepared for the purposes of condition 5.10(b).
   • 5.3 The Licensee shall inform the Department as soon as possible, and in any event within one month, if it:

1. proposes to not implement a management strategy and/or control outlined in the Mine Stability Risk Assessment within the stated timeframe, or proposes to change a management strategy and/or control outlined in the Mine Stability Risk Assessment and give reasons for the non-implementation or change, and outline the alternative management strategies and/or controls the Licensee proposes to take to address each risk identified in the Mine Stability Risk Register and the timeframes for implementation of each management strategy and/or control; 2. does not implement a management strategy and/or control outlined in the Mine Stability Risk Assessment within the stated timeframe, or has changed a management strategy and/or control outlined in the Mine Stability Risk Assessment, and give reasons for the non-implementation or change, and outline the alternative management strategies and/or controls the Licensee implemented to address each risk identified in the Mine Stability Risk Register;

1. does not implement a measure in a Trigger Action Response Plans by the timeframe stated in the Trigger Action Response Plan for the implementation of each measure.
   • 5.4 The Licensee shall review and address the contents of the Mine Stability Risk Register, Domain Specific Mine Stability Review, and Mine Stability Risk Assessment when updating the Ground Control Management Plan, noting that the Ground Control Management Plan must also contain other matters as set out in section 5.3.1 of the WPV.
   • 5.5 The Licensee shall not exceed the approved mine depths set out in Figure 15 of the WPV, and must provide evidence to the Department of the maximum depth of the mine floor by 30 June of every second year after the approval of the WPV.
   • 5.6 The Licensee must:

1. design a written stability monitoring program for the period of the licence ("Stability Monitoring Program") relevant to public infrastructure within two (2) kilometres of the mine crest in consultation with the Department, VicRoads and Latrobe City Council, and implement that Stability Monitoring Program; 2. deliver a final Stability Monitoring Program to the Department within twelve (12) months of the date of the approval of the WPV. If the Licensee does not agree to monitor an area of specific interest, nominated by VicRoads or Latrobe City Council, the basis for that decision needs to be set out in the Stability Monitoring Program;

1. obtain the written approval of the Department Head to the Stability Monitoring Program; and

1. provide VicRoads and Latrobe City Council with copies of the approved version of the Stability Monitoring Program, within 14 days.
   • 5.7 In giving its approval under condition 5.6(c), the Department Head must take into consideration, but is not bound by, any comments made by VicRoads and/or Latrobe City Council with respect to the Stability Monitoring Program.
   • 5.8 If any material amendment is proposed to the Stability Monitoring Program, the same process set out in the conditions 5.6(a), 5.6(c), 5.6(d) and 5.7 shall apply. The licensee must notify Latrobe City Council and VicRoads of any changes made to the Stability Monitoring Program that are not material.
   • 5.9 The Licensee must ensure that the Stability Monitoring Program:

1. identifies the impact(s) of mining on ground conditions within two (2) kilometres of the current and future mine crest (the "Stability Monitoring Zone") including, without limitation: 1. the Geotechnical Risk Zone (shown on Figure 23 of the WPV); 2. the Urban Coal Buffer (shown in Figure 10 of the WPV); 2. identifies the geotechnical risks to assets listed in Table 5.3.3.1 Asset Identification of the WPV, and any other like assets that may be identified in the future within the Stability Monitoring Zone; and

1. where reasonably practicable, 1. includes displacement monitoring instrumentation that is designed to provide information which provides a sound indication of ground movement in the Stability Monitoring Zone; and 2. takes into consideration any additional available sources of information that inform whether ground movement has occurred or is likely to occur in any part of the Stability Monitoring Zone;

1. specifically monitors areas extracted beyond the Potential Loy Yang Mine Development (1997) line, and identifies any areas potentially at greater risk due to that extraction, and includes an assessment of those risks (likelihood and consequence); 2. identifies all potential risks, and assesses the likelihood and consequences of all impacts and risks referred to in this clause 5.9 , and outlines the relevant provisions of the Risk Assessment and Management Plan and the Ground Control Management Plan that address those risks and recommendations for changes to the frequency and location of current and future monitoring; 3. includes monitoring of risks to public safety, public infrastructure and the environment; and 4. provides for regular review (at no greater than two yearly intervals) of the Stability Monitoring Program including consultation with the Department, VicRoads and Latrobe City Council in accordance with the process outlined in condition 5.6.
   • 5.10 The Licensee must:

1. provide the Department with reports produced based on the results of the monitoring undertaken in accordance with the Stability Monitoring Program. All such reports must be to the satisfaction of the Department; 2. provide the Department with an analysis of the results of the Stability Monitoring Program related to risks to public safety, public infrastructure and the environment, including but not limited to, an analysis of the surveys and reports outlined in Table 5.4.1 of the WPV;

1. ensure the Stability Monitoring Program includes a schedule of data, reports and analyses that the Licensee will produce based on results of the monitoring undertaken in accordance with the Stability Monitoring Program, including the timeframes for providing the reports to the Department, VicRoads, and Latrobe City Council;

1. provide to VicRoads data and reports in accordance with the Stability Monitoring Program, or as agreed between the Licensee and VicRoads; and 2. provide to Latrobe City Council at least annually reports and analyses in accordance with the Stability Monitoring Program, or as agreed as between the Licensee and the Latrobe City Council.
2. Rehabilitation Plan (Schedule 15 - 6(a))
   • 6.1 Within three (3) months of the date of approval of the WPV, the Licensee shall provide the Department with a detailed plan that is to the satisfaction of the Department Head for rehabilitation of areas extracted beyond the Potential Loy Yang Mine Development (1997) extraction limit as shown on Figure 9 of the WPV. This plan shall:
     1. show and describe rehabilitation works to be undertaken in areas extracted beyond the Potential Loy Yang Mine Development (1997) extraction limit as shown on Figure 9 of the WPV and;
     2. state the timing of those works.
   • 6.2 The Licensee must complete the rehabilitation works stated in the plan provided under condition 6.1 no later than 24 months after the date of approval of the WPV to the satisfaction of the Department Head.
   • 6.3 No later than twelve (12) months from the date of approval of the WPV, the Licensee shall:

1. Complete a Mine Rehabilitation Risk Review that identifies and analyses the significant or higher risks, including but not limited to fire and mine stability risks, for achievement of the Rehabilitation Plan at section 6 of the WPV and provide to the Department a Mine Rehabilitation Risk Review that is to the satisfaction of the Department Head; 2. review the Rehabilitation Plan at section 6 of the WPV after the Licensee considers the options for short, medium and long term rehabilitation of the Loy Yang mine that will be provided by the Hazelwood Mine Fire Inquiry in March 2016; and

1. provide the Department with a report on the outcomes of the Rehabilitation Plan Review referred to in condition 6.3(b) that is to the satisfaction of the Department Head.
   • 6.4 The Licensee shall at least six months prior to the completion of each of Stages C, D and E described in Table 4.3.1.1 of the WPV:
     1. complete a further Mine Rehabilitation Risk Review that identifies and analyses the significant or higher risks, including but not limited to fire and mine stability risks, for achievement of the Rehabilitation Plan at section 6 of the WPV; and
     2. provide the Department with a report on the outcomes of the further Mine Rehabilitation Risk Review that is to the satisfaction of the Department Head.
   • 6.5 The Licensee shall prior to the commencement of Stages D and E of Table 4.3.1.1 of the WPV:

1. develop and review control measures for risks including, but not limited to, fire and mine stability risks, identified in Mine Rehabilitation Risk Reviews required by Conditions 6.3 and 6.4; 2. set out the specific actions and timing of commencement of those actions to implement rehabilitation risk reduction including, but not limited to, planning for rehabilitation, progressive rehabilitation works, and any relocation of infrastructure affected by the rehabilitation works, consistent with managing rehabilitation risks for each mine domain noted in the Risk Assessment and Management Plan as significant or higher; and

1. provide the Department with proposed control measures, proposed actions and proposed timing of works to address risks identified in the Mine Rehabilitation Risk Reviews required under condition 6.3 and 6.4. The proposed control measures, proposed actions and proposed timing of works must be to the satisfaction of the Department Head.
   • 6.6 The Licensee shall:

1. prior to the commencement of Stage D of Table 4.3.1.1 of the WPV, in consultation with stakeholders, develop and provide the Department with detailed rehabilitation objectives consistent with Section 6.2 of the WPV and closure acceptance criteria; 2. prior to the completion of Stages D and E of Table 4.3.1.1 of the WPV, review the detailed rehabilitation objectives and closure acceptance criteria provided to the Department pursuant to condition 6.6(a), consider the outcomes of reviews and resultant actions arising from implementing Conditions 6.3 and 6.4, and provide the Department with the amended detailed rehabilitation objectives and closure acceptance criteria; and

1. prior to the commencement of Stage D of Table 4.3.1.1 of the WPV, use the outcomes of the Domain Specific Mine Stability Review to inform the rehabilitation plan end use concept and provide the Department domain specific mine rehabilitation closure plans.
   • 6.7 The detailed rehabilitation objectives, closure acceptance criteria, amended detailed rehabilitation objectives and amended closure acceptance criteria ("Objectives and Criteria") to be provided by the Licensee pursuant to condition 6.6(a) and (b) must be to the satisfaction of the Department Head.
   • 6.8 The Licensee must provide the Department updates annually (by the 30 June each year when a rehabilitation trial has commenced or is in progress during the previous 12 months) on the progress, outcomes and recommendations of the rehabilitation trials as described in Section 6.2 of the WPV and development of rehabilitation objectives and closure acceptance criteria under condition 6.6(a) and (b).
   • 6.9 The Licensee must review prior to the completion of each of Stages C, D and E of Table 4.3.1.1 of the WPV, in consultation with, and to the reasonable satisfaction of, the Department and the relevant water authorities, the water quantity requirements for the lake filling described in Section 6.4.4 of the WPV. This review shall consider available weather and rainfall data and models. Outcomes of this review are to be considered in requirements of Conditions 6.6, 6.7 and 6.8.
   • 6.10 The Licensee must ensure that all exposed coal is covered by non-combustible inert material, and vegetated where applicable, within fifteen (15) years of the date of ceasing mining of coal.
   • 6.11 The Licensee must:
     1. by no later than the completion of Stage C of Table 4.3.1.1 of the WPV, obtain and provide evidence to the Department that it has obtained the necessary licences and/or contracts for the quantity of water that will be applied to achieve the key objectives set out in section 6.2 of the WPV;
     2. not represent, submit or state that, approval by the Department Head of the WPV represents the granting of a right to the Licensee to use water from aquifer or surface sources for the purposes of mine rehabilitation.
2. Water Resources (Schedule 15)
   • 7.1 The Licensee must, prior to rehabilitation works that may impact on Latrobe Catchment water resources, including lake filling and diversion of flows from waterways, develop a Water Resources Risk Assessment in consultation with the West Gippsland Catchment Management Authority. The Water Resources Risk Assessment must be to the satisfaction of the Department Head. The Water Resources Risk Assessment must, as a minimum:
     1. Include local catchment, and regional assessment of risks to surface water and groundwater resources, and natural ecosystem services; and
     2. Be undertaken in accordance with Action 6.8 of the Gippsland Region Sustainable Water Strategy.
   • 7.2 Findings and recommendations from the Water Resources Risk Assessment required by Condition 7.1 shall be incorporated into the Mine Rehabilitation Risk Reviews required by Conditions 6.3 and 6.4, and development of rehabilitation objectives and closure acceptance criteria required by conditions 6.6 and 6.7.
   • 7.3 The Licensee must, prior to any works on Sheepwash Creek, develop a Waterway Management Plan in consultation with the West Gippsland Catchment Management Authority. The Waterway Management Plan must be to the satisfaction of the Department Head, and must demonstrate that there shall be no net loss to waterway habitat, water resources, or system discharges caused by the loss of Sheepwash Creek and its catchment.
3. Fire Risk
   • 8.1 The Licensee shall:
     1. provide the Department with the final Fire Risk Management Plan specified in table 9.8.1 of the WPV by 31 December 2015. The final Fire Risk Management Plan must be to the satisfaction of the Department Head.
     2. provide the Department with reports of the annual or more frequent reviews of the Fire Risk Management plan set out in table 9.8.1 of the WPV. The reports must be to the satisfaction of the Department Head. The Licensee must complete the annual or more frequent reviews of the fire risk management plan in conjunction with reviews of the Ground Control Management Plan, Environmental Site Plan and Emergency Management Plan and any other relevant management documents referred to in the Risk Assessment and Management Plan.
4. Approval of materials submitted to the Department by the Licensee
   • 9.1 If the Licensee submits material (including a measure, review, plan or report) in compliance with a condition of this approval, and that submitted material is required to be to the satisfaction of the Department or Department Head, then within 28 days of the date of the submission, the Department or Department Head (as applicable) must:
     1. Indicate whether that submitted material is, or is not, to the satisfaction of the Department or Department Head; or
     2. Request further information from the Licensee arising from or in connection with the material and necessary, in the opinion of the Department or Department Head, for him or her to reach a state of satisfaction.
   • 9.2 If the Department or Department Head requests further information from the Licensee, within 28 days of the receipt of that further information, the Department or Department Head (as applicable) must:
     1. indicate whether the submitted material together with any further information is, or is not, to the satisfaction of the Department or Department Head; or
     2. request any further information from the Licensee arising from or in connection with the material or further information and necessary in the opinion of the Department or Department Head, for him or her to reach a state of satisfaction.

[1] [2013] VSCA 85.

[2] See, for example, Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16 per French CJ, Kiefel, Bell, Gageler & Keane JJ, following in part Newcrest Mining Ltd v Thornton [2012] HCA 60 per French CJ. It should be noted that both were civil proceedings. The decision in Atwells relied on a civil procedure rule in NSW, directly concerning consent orders, which is somewhat analogous to s 93 of the VCAT Act.

[3] Rozen v Macedon Ranges SC [2010] VSC 583, [176] per Osborn J, and the cases there cited, and Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589 per Bowen CJ and Deane J