Appellant v Respondents

2 The appellant seeks planning approval to quarry bluestone from a hill in the Shire of Moira adjacent to Blackfellows Head Creek and headwaters of Seven Creeks.

3 The appellant has sought to review before the Victorian Civil and Administrative Tribunal ("the Tribunal") the refusal of the local municipal council ("the Council") to grant a planning permit.

4 Following a six day hearing before a division of the Tribunal comprised by two members,[1] the appellant was successful on what might be called the broad land use planning issues in the case. The Tribunal accepted that there was planning policy support for stone extraction; that traffic safety concerns could be addressed; that following substantial modification of the proposal, landscape impacts were acceptable and that as the result of the same modifications the impact on native vegetation was capable of appropriate offset.

5 Nevertheless, the Tribunal was not satisfied with respect to the operational impacts of quarry activities on the surrounding environment and rejected the applicant's case as to acoustic concerns and in relation to impacts on the aquatic environment, including in particular, streams of national environmental significance.

6 The appellant complains that the Tribunal's decision demonstrates that the appellant was not accorded procedural fairness.

7 First, it is submitted the decision records that on a view conducted between the fifth and sixth days of the hearing, the Tribunal observed a defect it regarded as fatal in the application, namely a discrepancy between the application plans and the on ground conditions. The Tribunal observed a drainage line consisting of a subdued depression, which in its view was likely to materially affect the operation of a cut-off diversion drain running along the northern boundary of a secondary stockpile area.

8 The appellant complains that the alleged discrepancy between the application plans and the on ground conditions was not raised by the Tribunal at the resumed hearing of the appeal, nor was the appellant given any opportunity to address its significance, if any, for the design of the proposal. It was thus unable to address a matter ultimately regarded as highly significant to the Tribunal's conclusions.

9 The appellant further contends that in fact the application plans do show the relevant drainage line and the appellant had available to it evidence that the ground conditions would not affect the effective operation of the cut-off drain which it could have called, if this had been identified as a live issue.

10 Secondly, the appellant complains that it was misled by a statement of the Tribunal, as to the lack of need to call an additional hydrological peer review witness, in circumstances where the Tribunal ultimately concluded the design of the on-site dam proposed for the quarry was fundamentally unsatisfactory. In so doing, the Tribunal ultimately gave a number of reasons which the appellant contends, could and would have been addressed by further evidence and refinement of the dam design, if the Tribunal had not expressed itself in the way that it did during the course of the hearing.[2]

11 Thirdly, the appellant complains that the Tribunal made adverse findings as to the adequacy of the appellant's evidence in relation to acoustic impacts of the quarry, in circumstances where the appellant elected not to call acoustic evidence other than evidence relating to proposed blasting procedures, because of a statement that was understood as an indication from the Tribunal that it was unnecessary to do so.

12 The principles bearing on the Tribunal's obligations to give a fair hearing are well known.

13 The starting point is the relevant statutory framework. The Tribunal is not bound by the rules of evidence,[3] and may inform itself as it sees fit.[4]

14 Further, the Tribunal is required to conduct each proceeding before it with as little formality and determine each proceeding with as much speed as the requirements of the VCAT Act and its enabling enactments permit.[5]

15 It follows that the Tribunal is entitled to treat its observations on a view as evidence in a proceeding and not merely as an aid to understanding evidence given before it at a hearing. Indeed many cases involving urban design or landscapes impact issues may fall to be decided by a view.

16 It also follows that the Tribunal is entitled to require definition of the issues before it, both by exchange of notices of appeal and statements of grounds, and by the exchange of expert witness statements prior to the hearing.

17 All these powers are, however, subject to a further obligation, namely the obligation to accord the parties natural justice,[6] or as it is now more commonly described "procedural fairness".

18 This obligation is expressed to "not apply to the extent that this Act or an enabling enactment authorises",[7] but it is plain that the general procedural mandate contained in s.98 of the VCAT Act (and to which I have referred), is fundamentally conditioned by the need to act with procedural fairness.

19 In turn this obligation is to be understood as a flexible one responsive to the circumstances of the case.[8]

20 The obligation does not require that a tribunal always undertake a view in a particular manner or at a particular time in relation to the hearing of a case.

21 It also does not require that the hearing necessarily be reconvened after a view is undertaken.

22 It does, however, require that the parties have a fair opportunity to meet the cases adverse to them, upon which the Tribunal ultimately adjudicates.

23 This duty has an additional sensitivity because the Tribunal is an expert tribunal.

24 It is well accepted that an expert tribunal is intended to utilise its expertise in evaluating the evidence before it, but if it identifies a material consideration, not identified by the parties, but bearing on its probable decision, it must give the parties an opportunity to address the matter.

25 In Keller v Drainage Tribunal[9] Murray J described the underlying expert role of a predecessor to the Tribunal as follows:

It is well established that a tribunal, of which some or all of the members are experts in a particular field, may use its expertise in interpreting and weighing evidence and reaching conclusions on technical matters...[10]

26 Thus when an expert tribunal does no more than utilise its general expertise, that will be in the contemplation of the parties. If, however, it goes beyond this and uses specialist knowledge of particular factors of relevance, these must be disclosed to the parties.[11]

27 Likewise the Tribunal is not entitled to make a finding of material fact, based on evidence collected by it on its own inquiry, not disclosed to the parties, and which none of the parties have had the opportunity of investigating, testing or answering.[12]

28 In Keller's case the Tribunal found that the filled area around the appellant's swimming pool constituted a perched water table resulting from the nature of the fill. Such water table was in turn found to comprise a nuisance.

29 His Honour accepted that the conclusion reached was formed on the basis of evidence before the Tribunal and by using its expertise.

30 Nevertheless, the possibility of a perched water table had not been adverted to by the parties at the hearing. The Tribunal thus made findings of fact not adverted to by either party, and reached conclusions of law on a basis not anticipated by the parties. Murray J held that in the circumstances the Tribunal had not accorded the parties a fair hearing.

31 In Rosebud Village Pty Ltd v Amos & Anor[13] Young CJ applied the principles stated in Keller to a decision of the planning division of a predecessor to the current Tribunal. In the Rosebud Village case, the Tribunal, after conducting a hearing and a view, refused a permit for a residential subdivision on the ground of potential effect on future residents, of major electricity transmission powerlines. That ground of objection was not raised by notices of objection lodged with the responsible authority and was not in turn raised by the parties at the hearing.

32 Young CJ held that there was a lack of natural justice, despite the fact that "there was a general question asked in relation to the transmission lines". His Honour was satisfied that the issue was one "thought up, as it were, by the Tribunal itself". In the circumstances the Tribunal had not given the affected party a fair opportunity to address the determinative issue in the case.

33 In the present case, it is clear that the operational adequacy of the proposed quarry in respect of water management, was an issue in the proceeding. Further, the Council's legal representative cross-examined the appellant's design engineer as to the proposed manner of operation of the cut-off drain running along the northern side of the stockpile area and the nature of the surface level of that area.

34 The cut-off drain was intended to divert water flowing from the north, around the stockpile area and into the quarry storage dam. It thus both reduced surface water flow through an area which might cause sedimentation, and fed water from a natural catchment into the storage dam.

35 Despite the fact that the operation of the cut-off drain was the subject of exploratory questioning, it was never, however, contended that the depression comprising a drainage line from the north west constituted a material problem in respect of the proposed design. Upon viewing the property, however, the Tribunal concluded:

(a) that the drainage line observed by it was not indicated on the design drawings; and

36 In these circumstances, and although the judgment is necessarily one of fact and degree, it seems to me the Tribunal was bound to raise a matter it regarded as determinative with the parties before deciding the case adversely to the appellant.

37 Although the adequacy of the design was generally an issue, neither the factual basis of the Tribunal's conclusion, nor the significance of its consequences, were raised at the adjourned hearing. There was no opportunity given to the appellant to subject the Tribunal's conclusions to "test and evaluation".[14]

38 It is also apparent that had the Tribunal's observations and its conclusions as to the consequence of those observations been raised at the hearing, the appellant would have addressed the issue squarely with evidence.

39 It follows that I accept that the procedure adopted was unfair although I accept that this is not a case where the Tribunal carried out investigations of a type not contemplated by the parties.[15]

40 Further, although it is apparent the Tribunal was under pressure with respect to hearing time, case management considerations could not excuse the failure to accord procedural fairness.[16]

41 The further question arises whether the failure to accord natural justice which I have identified, should be regarded as vitiating the Tribunal's decision.

42 In my opinion it should be. First, it is apparent that the relevant conclusions formed part of a cumulative assessment of the competence of the application and adequacy of the design undertaken on behalf of the appellant. They were expressed in the first place in conjunction with and as an addition to other concerns.

During the course of the hearing, a number of amendments to the size of the dam and layout of the drain were submitted on the applicant's behalf. These were in response to errors observed in the drawings[17] and commentary on the capacity of the dam. The presence of such errors, particularly the direction of flow in drainage diversion lines, and hence the areas of catchment to service was of concern to us. Our site inspection however proved fatal to the application when we observed that the proposed diversion drain around the northern most stockpile area did not accord with our observations of grounds levels. In particular we observed a subdued, but nevertheless pronounced drainage line entering from the north-west corner of the site and passing through the proposed stockpile area that was not indicated on the site plans. We have little confidence that the proposed diversion lines would function correctly given these conditions.

43 Further, the Tribunal returned to the question of overflow diversion as part of its rolled up conclusions with respect to the adequacy of the design of the proposed dam.

We have concerns in respect to the proposed dam. A fundamental reservation is its purported dual function. The design of sediment treatment basins requires consideration of peak runoff/storm events, the volume of flow, settling time periods and other hydraulic and maintenance factors. None of these elements are apparent in this proposal nor were we taken to any hydraulic design parameters until we raised them. Even those that were proffered do not address all the concerns. What we were presented with was little more than a farm dam design, the adequacy of which to remove sediment was not set out. Further the proposed means of overflow and flood flow diversions are unacceptable in the level of detail and design. (My emphasis)

44 Thus, although it is true as the Council submits, that the Tribunal was clearly dissatisfied with far more than the design of the diversion drain, it is also clear both from the use of the adjective "fatal" to describe the problem identified, and from the construction of the reasons as a whole, that the perceived inadequacy in the design of the diversion drains was a very material consideration.

45 In addition, the view occurred after five days of hearing, in circumstances where the Tribunal had expressly stated that if it were of the opinion that there were material design problems with the proposed water management arrangements, it had three options open to it. The Tribunal could require additional measures pursuant to permit conditions, it could issue an interim decision and require the submission of amended plans prior to further submissions and hearing (if necessary), or it could refuse the permit application.

46 The description of the problem identified on the view as "fatal", is thus to be understood as fatal among other things to the option of an interim decision. In turn, it follows that the fact that the Tribunal identified other problems with the proposal does not rob significance from the procedural course followed in relation to the observations made by it on the view. Thus, the observations made at [44] of the decision are to be read in this light.

It is not for this Tribunal to re-design this proposal. Given the sensitivity of the environment to be protected, we would have expected some form of primary treatment to reduce or remove sediment before storage for re-use. Such a design should be supported by recognised hydraulic and water treatment design methods. While we acknowledge assertions put by Mr O'Brien that a wetland design and revised dam design could be produced to address these issues, they were not part of the amended application. The applicant had plenty of time to address these issues. We do not accept Mr Dunn's response that he relies on the Department of Primary Industry (DPI) to inform him of the issues. It is clear to us from reviewing the draft Work Plan and Mr Natoli's evidence that DPI's review of this draft Work Plan is limited to on-site operational matters. In this day and age, it is beholden on the proponent to assess the potential opportunities and constraints of a proposal having regard to the range of available information. None of these issues should have been lightly treated or come as any surprise. To assert otherwise says much about the approach taken in this application. In short we found the application sadly lacking in recognition of these needs or able to provide us with sufficient confidence that they would be dealt with by secondary consent if a permit were to issue.

47 Ultimately, the Tribunal had a discretion as to which of the options identified by it as the hearing progressed, would ultimately be pursued. It does not follow from [44] quoted above that the appellant must have lost its appeal, whether or not the perceived problems with the northern cut-off drain were ventilated with the parties or not. If such problems had been ventilated and the applicant were able to satisfactorily address them, it is impossible to conclude that the Tribunal might not have given it the further opportunity to address other problems by way of an interim decision.

48 Once a material failure to accord procedural fairness is identified, it will ordinarily be difficult to conclude that it may not have affected the decision.[18] This is not a case in which it can be concluded the denial of natural justice could have had no bearing on the outcome.

49 The appellant also seeks to agitate two further complaints. In each instance it is asserted statements by the Tribunal misled the appellant as to the need to call further evidence addressing a particular issue. Having read the transcript as a whole, I am not persuaded of the factual bases of these complaints. It seems to me that the forensic choices made by the appellant were ultimately made in a context where it was apparent the issues concerned were both live and contested. Accordingly, these further complaints fail.

50 Nevertheless, it follows from the success of the first ground of appeal, that the appellant is entitled to have the adverse decision of the Tribunal set aside. It seeks to do so on a basis which in effect preserves its success on other issues.

51 In my view the whole of the decision should be set aside and the matter should be remitted for hearing in accordance with law by a differently constituted tribunal.

52 It will then be a matter for the parties and the Tribunal to resolve the manner in which the issues are litigated at the further hearing.

53 It is inappropriate to seek to sever issues by order of this Court. This Court is not the tribunal of fact and it may be there are questions of relationship between issues and relative weight of issues for the Tribunal to consider upon the further hearing. The Tribunal may ultimately be confronted with questions of balancing considerations, in deciding what is the decision which best gives rise to net community benefit and sustainable development.

54 Further, as a matter of procedure any further amendment of the proposal by another tribunal would be inhibited if the application is regarded as having crystallised for certain purposes e.g. visual impact, at the time of the first Tribunal decision. In so saying, I should not, of course, be taken to be expressing an opinion one way or the other as to the appropriateness of any further amendment of the proposal.

55 Lastly, it seems to me that public confidence in the Tribunal's decision making process requires the matter as a whole to be re-determined by a fresh tribunal.

[1] A town planner and an environmental scientist with expertise in hydrology.

[2] The principles governing cases of this type are carefully and comprehensively elaborated in the judgment of Redlich JA in Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181.

[3] Or any practice or procedure applicable to courts of record, except to the extent it adopts those rules, practices and procedures.

[8] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, per Mason J 555; per Wilson J 601; Brannan J 612; per Deane J 633.

[9] [1980] VicRp 43; [1980] VR 449.

[10] See R v Milk Board [1944] VR 187; Moxon v Minister of Pensions [1945] KB 490; [1945] 2 All ER 124; R v Industrial Appeals Court; Ex parte Maher [1978] VicRp 12; [1978] VR 126, 142 et seq; R v Brewer; Ex parte Renzella [1973] VicRp 36; [1973] VR 375; Perre Bros. v Citrus Organisation Committee (1975) 10 SASR 555, 562 per Wells J; Spurling v Development Underwriting (Vic.) Pty Ltd [1973] VicRp 1; [1973] VR 1, esp 11 per Stephen J.

[11] Spurling v Development Underwriting (Vic.) Pty Ltd (above), 10 per Stephen J; R v Industrial Appeals Court; Ex parte Maher (above), 143.

[12] Slapjums v City of Knox [1978] VicRp 35; [1978] VR 325, 341.

[13] (1989) 58 LGRA 403.

[14] Sheedy Simmons v Mornington Peninsula Shire Council (1996)

17 AATR 239, 240.

[15] Cf. Torrington v Shire of Bulla (1981) 57 LGRA 181.

[16] Cf. Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146.

[17] Notably directions of flow indicating diversions of water flow up slopes rather than down slope.

[18] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145.