Applicant v Respondent

1 On 26 March 1976 the Melbourne and Metropolitan Board of Works ('MMBW') granted an amended permit ('permit') to L Grollo Sales Pty Ltd to excavate sand from a 34 hectare site in Heatherton (Victoria). The permit was subject to a condition that the excavation be conducted in accordance with the approved working plan attached to Extractive Industry Licence 716 ('licence 716') issued under the Extractive Industries Act 1966 (condition 1). More than 30 years later, in 2007, Lantrak Developments Pty Ltd ('Lantrak') acquired the 34 hectare site, subject to the same conditions prescribed in the original permit. By 2007 commercial sand mining activities had resulted in the creation of four large pits. Since 2007 Lantrak has progressively filled these pits with landfill from construction projects in and around Melbourne.

2 By 2007 the Extractive Industries Act 1966 ('the 1966 Act') had been repealed by the Extractive Industries Development Act 1995 ('the 1995 Act'). Under the 1995 Act parties proposing to carry out an extractive industry were required to lodge a work plan in support of an application for a work authority. A work plan was required to include a rehabilitation plan. On 18 December 1999 Work Authority 383 ('WA 383') was issued in respect of a parcel of land which included the 34 hectare site the subject of the permit. In January 2012 the work plan in respect of Work Authority 383 was amended to include a rehabilitation plan ('RP'). The 1995 Act was repealed by s 41 of the Resources Industry Legislation Amendment Act 2009. This Act inserted Pt 6A: 'Extractive Industries and Other Matters' into the Mineral Resources (Sustainable Development) Act 1990 ('MRSD Act'). The RP was approved under the MRSD Act.

3 The primary issue in the present proceeding is whether condition 1 of the permit required Lantrak to comply with the RP which was included in the amended work plan for WA 383 approved in January 2012. Lantrak accepts that it is required to comply with the RP. It also accepts that, to date, it has not done so. However, it contends that its obligation to comply with the RP arises under the MRSD Act which does not confer any right on the respondent ('the Council') to enforce compliance with the RP. Lantrak further contends that condition 1 of the permit does not require it to comply with the RP.

4 The Council contends that the requirement under condition 1 to comply with the approved working plan attached to licence 716 requires Lantrak to comply with the RP. It further contends that the requirement to comply with the RP is enforceable under s 114 of the Planning and Environment Act 1987. For the reasons which follow I reject the Council's construction of condition 1. Condition 1 does not impose an obligation upon Lantrak to comply with the RP. Consequently, s 114 of the Planning and Environment Act 1987 did not confer power on the Victorian Civil and Administrative Tribunal ('the Tribunal') to make orders requiring Lantrak to comply with the RP. The Tribunal erred in granting the Council's application for orders requiring Lantrak to comply with the RP. Those orders were based on the Tribunal's erroneous conclusion that condition 1 required Lantrak to comply with the RP.

5 Although Lantrak has succeeded in challenging the enforcement orders, it is necessary to remit the proceeding to the Tribunal for further hearing. It is common ground that the Tribunal erroneously concluded that the Council had resiled from relying upon conditions 18 and 19 of the permit in support of its application for enforcement orders. The proceeding will be remitted to the Tribunal for further hearing on the question of whether conditions 18 and 19 imposed an obligation upon Lantrak to comply with the RP.

6 Section 114 of the Planning and Environment Act 1987 authorises a responsible authority to apply to the Tribunal for an enforcement order against a landowner if a use of land contravenes a condition of a permit. It is common ground that the Council is a responsible authority for the purposes of s 114. On 13 May 2019 the Council lodged an application with the Tribunal for an enforcement order against Lantrak. The application alleged that Lantrak had contravened condition 18 of the permit. The Council alleged that condition 18 required the rehabilitation of excavated land by filling, sloping, re-soiling and/or planting with protected vegetation in accordance with the RP.

7 The application was heard by Senior Member Code on 12 and 13 March 2020. The Tribunal delivered reasons for decision and made orders on 25 June 2020. A correction order was issued on 9 July 2020. There is an issue, discussed below, as to when the Council first alleged that Lantrak's failure to comply with the RP constituted a breach of condition 1. It is common ground that pursuant to leave granted by the Tribunal following the conclusion of hearings on 13 March 2020, the Council filed an amended proposed enforcement order. This amended order alleged a breach by Lantrak of conditions 1, 18 and 19 of the permit.

8 The Senior Member concluded that Lantrak contravened condition 1 'because the use has not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in [compliance with] the Rehabilitation Plan'.[1]

9 The enforcement order made by the Tribunal includes the following:

Land restoration plan

2 By not later than 24 December 2020, Lantrak Developments Pty Ltd must prepare a report (the land restoration plan) to the satisfaction of Kingston City Council detailing the progressive restoration of the subject land to the condition, including final land form, specified in the Rehabilitation Plan. The land restoration plan must ensure compliance with condition 19 of the Permit and must include:

(a) The number of stages, including the parts of the subject land to which each stage applies.

(b) The works to be carried out in each stage.

(c) The sequence by which the works in each stage will be carried out.

(d) The date by which the works in each stage will start and be completed, providing the date for completion of works in the final stage must be not later than 25 June 2025.

Land restoration

3 Lantrak Developments Pty Ltd must start and complete the works in each stage in the land restoration plan by the dates specified in the land restoration plan to the satisfaction of the Kingston City Council.

4 By no later than 25 June 2025, Lantrak Developments Pty Ltd must complete the works in all the stages in the land restoration plan and restore the subject land to the condition, including final land form, specified in the Rehabilitation Plan.[2]

10 On 22 July 2020 Lantrak filed an application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 in respect of one question of law:

In the circumstance that condition 1 of the Permit requires that the use be operated in accordance with 'the approved working plan and the approved working proposal attached to Extractive Industry Licence no 716 issued under the Extractive Industries Act 1966', should the Permit be construed to require that the use be operated in accordance with the Rehabilitation Plan, being a plan approved under the Mineral Resources (Sustainable Development) Act 1995?[3]

The Tribunal erred in holding that condition 1 of the Permit required that the use operate in accordance with the Rehabilitation Plan.[4]

12 Lantrak's application for leave to appeal turns on a narrow point of construction. Nevertheless, the construction of condition 1 requires consideration of legislation regulating extractive industries during the period 1975 when licence 716 was granted, to January 2012 when the approved working plan for WA 383 was amended to include the RP. Before addressing the construction of condition 1, it is necessary to address the threshold question of whether Lantrak should be precluded from contending that condition 1 of the permit does not require compliance with the RP.

Should Lantrak be precluded from contending that condition 1 does not require compliance with the RP?

13 The Council submits that Lantrak should be precluded from advancing the contention that condition 1 did not require it to comply with the RP. The Council submits that Lantrak did not contend at first instance that condition 1 did not require compliance with the RP. I reject the Council's submission that Lantrak should be precluded from advancing the contention that condition 1 does not require compliance with the RP.

14 It is correct that Lantrak did not expressly contend before the Tribunal that condition 1 did not require compliance with the RP. Its failure to do so is explicable having regard to the manner in which the Council conducted the proceeding before the Tribunal.

15 The Council's application for an enforcement order under s 114 of the Planning and Environment Act 1987 was filed on 13 May 2019. The application did not allege that Lantrak had contravened condition 1 of the permit.[5] The only condition which the Council alleged Lantrak had contravened was condition 18,[6] which provides:

When ordered by the Responsible Authority any land which has been excavated shall be made available for the reception of filling and shall be sloped, re-soiled or planted with protective vegetation to the approval of the authority provided that the owner shall be entitled to carry out to the satisfaction of the Responsible Authority the operation of filling, sloping, re-soiling, and or planting with protective vegetation in accordance with the Final Reclamation Proposals approved pursuant to the provisions of the Extractive Industries Act.[7]

16 On 30 May 2019 the Council was granted leave to amend its application. The amended application maintained the allegation that Lantrak had breached condition 18.[8] The Council's statement of grounds dated 19 June 2019 alleged only a breach of condition 18.[9] The Council filed written submissions with the Tribunal on 9 September 2019.[10] The written submissions did not contend that Lantrak breached condition 1 of the permit.

17 On 12 March 2020, the first day of hearing, a solicitor appearing for the Council provided the Senior Member with amended written submissions. At the time of doing so he submitted:

The contraventions and the context remain exactly as we put previously but we've added further detail, and they're marked as tracked changes.[11]

18 Paragraph 5 of the amended submissions referred to condition 1 together with conditions 10, 12, 14, 16, 17, 18 and 19. The amended submissions did not contend that condition 1 required Lantrak to comply with the RP. Having referred to each of the conditions set out above, the solicitor appearing for the Council submitted:

So it's conditions 18 and 19 that we say are relevant for your context in dealing with this proceeding, sir.[12]

19 On 18 March 2020, following the completion of the hearing on 13 March 2020, the Senior Member granted the Council leave to file an amended proposed enforcement order.[13] The amended order alleged for the first time a contravention of condition 1, together with conditions 18 and 19 of the permit. Condition 19 provides:

(a) Within six (6) months of the issue of the Extractive Industries Licence by the Minister of Mines relating to the land the subject of this permit, the Applicant will place before the Responsible Authority detailed proposals for the progressive reclamation at the expense of the Applicant of the land the subject of this determination.

(b) The land will be reclaimed by the Applicant at its own expense to the satisfaction of the Responsible Authority and in carrying out such reclamation the Applicant will diligently and promptly comply with the reasonable requirements of the Responsible Authority.

(c) The proposals to be placed before the Responsible Authority pursuant to paragraph (a) of this condition shall include detailed proposals setting out the time at which each stage of the reclamation work shall be completed and the Applicant shall adhere to all work time-tables included in the proposals for reclamation as approved by the Responsible Authority or such other time-tables as may from time to time be approved by the Responsible Authority.[14]

The amended order did not simply amend the relief which the Council was seeking. It significantly altered, following the conclusion of the hearings, the basis upon which the relief was being sought by alleging a contravention of condition 1.

20 The Tribunal's reasons do not address the issue of the construction of condition 1 which is at the heart of the present proceeding. This issue was not addressed by the Council and Lantrak during the hearing in the Tribunal on 12 and 13 March 2020. The failure of either party to do so reflects the absence of any allegation by the Council during the course of the hearing that condition 1 of the permit required Lantrak to comply with the RP.

21 The construction of condition 1 involves a question of law. Lantrak's failure to expressly contend before the Tribunal that condition 1 did not impose upon it an obligation to comply with the RP is explicable by reason of the manner in which the Council conducted its case. Special circumstances must exist before a party will be permitted to advance on appeal a point not taken at first instance. The failure of the Council to have alleged until after the completion of the hearing that condition 1 required compliance with the RP constitutes a special circumstance. Further, it is in the interests of justice for Lantrak to be permitted to contend that condition 1 does not require compliance with the RP.[15]

22 Section 4(1) of the 1966 Act conferred upon the Minister for Mining the power to issue a licence for the carrying out of an extractive industry on any private land for a period not exceeding 15 years. It is common ground that on 27 November 1975 the Minister issued licence 716 to L Grollo Sales Pty Ltd for the extraction of sand. On 26 March 1976 the MMBW issued amended planning permit TP76218 pursuant to the Town and Country Planning Act 1961.[16] The permit was granted to L Grollo Sales Pty Ltd in respect of 34 hectares of land situated on the eastern side of Old Dandenong Road, Heatherton. The permitted use under the permit was sand excavation. Condition 1 of the permit provided:

The use hereby permitted shall be operated at all times in accordance with the approved working plan and the approved working proposal attached to Extractive Industry Licence No. 716 issued under the Extractive Industries Act 1966.[17]

23 Licence 716 as originally issued is not in evidence. However, licence 716 as amended on 26 August 1981 is in evidence.[18] The amended version of the licence records that the licence was transferred to Pioneer Concrete (Vic) Pty Ltd on 10 October 1977.[19] It is common ground that for many years post 1981 sand was excavated from the land which was subject to licence 716 and the permit. This resulted in four large pits. Lantrak acquired the land subject to licence 716 in 2007 for the purpose of storing clean fill earthen materials generated from development excavation.[20]

24 The 1966 Act was repealed by the 1995 Act. Under the 1995 Act the licensing system under the 1966 Act was replaced with a system under which the right to carry out an extractive industry was subject to the Minister for Energy and Resources granting a work authority. Any person proposing to apply for a work authority was required by s 17 of the 1995 Act to lodge a work plan with the Secretary of the Department of Energy and Resources.

25 The 1995 Act was repealed by s 41 of the Resources Industry Legislation Amendment Act 2009. Section 20 of this Act inserted pt 6A, 'Extractive industries - Work authorities and other matters' into the MRSD Act. Clause 2 of sch 7 of the MRSD Act provides:

Despite the repeal of the old Act, a work authority granted under that Act and in force immediately before the repeal of the old Act, continues in force as if it were an extractive industry work authority granted under this Act.

26 On 18 December 1999 the Minister granted Pioneer Concrete (Vic) Pty Ltd WA 383 under the 1995 Act.[21] Clause 1 of WA 383 stated that it applied to the land described in permit TP76218 and the approved work plan as Crown allotment 4 and 4A. The total area of land covered by WA 383 was 59.70 hectares.[22] On 6 October 2004 the Department approved the transfer of WA 383 from Pioneer Concrete to South East Melbourne Recycling Pty Ltd.[23] On 1 July 2009 the Department approved the transfer of WA 383 from South East Melbourne Recycling to Lantrak.[24] On 31 December 2009 the Department approved a variation to WA 383 to add a schedule of conditions of work.[25] Clause 23.1 of the conditions required Lantrak to ensure that progressive rehabilitation of disturbed land be carried out as soon as possible.[26] Clause 23.3 required Lantrak to ensure that the final rehabilitation be in accordance with the approved work plan.[27]

27 In November 2011 Lantrak submitted a rehabilitation plan for 'Work Authority 383 east Old Dandenong Road, Heatherton'.[28] On 18 January 2012 a delegate of the head of the Department of Energy and Resources stamped the RP as 'Work plan variation approved'.[29] The variation was approved under s 77HB of the MRSD Act.

28 The introduction to the RP includes the following:

WA383 is separated into two parts by Old Dandenong Road with the eastern landholding owned and occupied by Lantrak Developments Pty Ltd ('Lantrak'). The western portion is owned and occupied by Delta Group ('Delta').[30]

The land which is the subject of the permit is approximately 34 hectares. The land which is subject to WA 383 includes the 34 hectares as well as a further 25.7 hectares on the western side of Old Dandenong Road, owned by the Delta Group.[31]

29 The RP states that WA 383 'was established by the amalgamation of Extractive Industry Licences 716, 698, 1328 and 1632 (EIL1362 [sic] cancelled) and operated by Hanson Constructions Materials Pty Ltd (formerly Pioneer Construction Materials Pty Ltd)'.[32] Licences 698 and 1328 governed the extraction of sand from land on the western side of Old Dandenong Road. Licence 716 governed the extraction of sand on the 34 hectares on the eastern side of Old Dandenong Road.

30 The question for determination in the present proceeding is whether the phrase 'the approved working plan and the approved working proposal attached to Extractive Industry Licence No. 716' imposes an obligation upon Lantrak to comply with the RP. The Council submits that the practical result which the drafter of condition 1 intended to achieve was to ensure that the use and development of the land subject to the permit was carried out in accordance with the approved working plan under licence 716. The Council submits that the reference in condition 1 to compliance with the requisite approvals under the 1966 Act is a reference to compliance with 'those same approvals, transitions, renewed and renamed under the 1995 Act'.[33] The Council submits that 'in all likelihood' licence 716 was renewed as WA 383 and that 'the approved working plan and approved working proposal under the Licence continued life as the approved work plan under the Work Authority'.[34]

31 Lantrak accepts that it is bound to comply with the terms of the RP. It accepts that the responsible Minister under the MRSD Act has power to enforce compliance with the RP.[35] However, it submits that the RP is not an approved working plan attached to licence 716. As such, it submits that its failure to comply with the RP is not a breach of condition 1 of the permit. I accept this submission. I reject the Council's contention that the phrase 'the approved working proposal attached to Extractive Industry Licence' in condition 1 of the permit should be read as a reference to the approved working plan under WA 383, such that condition 1 required Lantrak to comply with the RP ('the Council's construction').

32 The meaning of a planning permit is to be ascertained primarily from the terms of the permit itself.[36] The meaning of planning permit is to be determined objectively. The inquiry is as to the meaning that the terms of a permit would convey to a reasonable person.[37] A planning permit has an enduring nature. It is not personal to the permit applicant but rather is a public document operating for the benefit of third parties. As a general rule a permit should be construed without reference to extrinsic evidence, save for a document or thing expressly or impliedly incorporated into the permit.[38] A planning permit should be construed, not as a document drafted with legal expertise, but to achieve practical results.[39] Nevertheless, a permit should be construed so as to produce a harmonious result and to give meaning to every word of its provisions.[40]

33 The text of condition 1 does not support the Council's construction. Condition 1 requires the permitted use of sand extraction to be operated at all times in accordance with the approved working plan and approved working proposal attached to licence 716. The text of condition 1 supports a finding that when the permit was granted the MMBW was aware of the terms of the approved working plan and the approved working proposal. The permitted use is to be operated 'at all times' in accordance with the approved working plan and the approved working proposal attached to licence 716. Objectively construed, condition 1 would convey to a reasonable person that the permitted use had to be operated in accordance with the approved working plan and approved working proposal attached to licence 716.

34 The Council's construction requires an ambulatory reading of condition 1 such that the requirement to comply with the approved working plan attached to licence 716 required compliance with the RP which formed part of the amended working plan attached to WA 383 on 18 January 2012. I do not accept that the text of condition 1 should be read in an ambulatory fashion. The words in condition 1 are not used in a generic sense.[41] Rather, the words have a specific meaning to be understood by reference to the approved working plan and approved working proposal which was attached to licence 716.

35 An approved working plan in respect of a licence granted under the 1966 Act is not co-extensive with an approved work plan in respect of a work authority granted under the 1995 Act or the MRSD Act. There was no requirement under the 1966 Act for a rehabilitation plan to form part of an approved working plan. On the other hand, the 1995 Act made express provision for work plans to include a rehabilitation plan. Section 17(1) and (3) provided:

(1) A person who proposes to apply for a work authority to carry out an extractive industry must lodge a work plan with the Department Head.

(3) A work plan must contain the prescribed information and must include a rehabilitation plan for the land.

36 The RP approved in January 2012 was approved under the MRSD Act. Division 2 of pt 6 regulates work plans and extractive industry work authorities. Section 77G(1) and (3)(d) provide:

(1) A person who proposes to apply for an extractive industry work authority to carry out an extractive industry must lodge a work plan with the Department Head.

...

(3) A work plan must -

...

(d) include a rehabilitation plan for the land proposed to be covered by the work authority ...

37 The absence of any requirement under the 1966 Act for an approved working plan to include a rehabilitation plan compared with the express requirement under the 1995 Act and the MRSD Act for approved working plans to include rehabilitation plans supports a finding that a work plan under the MRSD Act is not co-extensive with a working plan under the 1966 Act.

38 A planning permit is a public document which operates for the benefit of third parties. The Council's construction produces a result which is not disclosed by the text of condition 1. A member of the public unaware of the 1995 Act and the MRSD Act would not understand the reference in the permit to the approved working plan attached to licence 716 as also referring to the amended work plan for WA 383 approved in January 2012 which included the RP. The Council's construction is based on legislation and documents not referred to in condition 1. The Council's ambulatory construction produces a result which would be incomprehensible to a member of the public reading condition 1 of the permit.

39 If I am wrong, and condition 1 should be read in an ambulatory fashion, the Council has failed to establish a nexus between the approved working plan attached to licence 716 and the amended work plan incorporating the RP which forms part of WA 383.

40 Licence 716 was issued to L Grollo Sales Pty Ltd on 27 November 1975.[42] Section 4(1) of the 1966 Act prescribed a maximum duration of 15 years for a licence. A licence holder was entitled to seek renewal of a licence under s 17(1) within 12 months prior to the expiry of the licence. Pursuant to s 17(2) a licence could be renewed for a period not exceeding 15 years.

41 Absent an application for renewal of licence 716, the licence expired on 27 November 1990. There is no evidence of any application for renewal of licence 716 having been made or granted. Assuming the licence was renewed for a further period of 15 years, it would have operated from 27 November 1990 to 27 November 2005. The 1966 Act was repealed by the 1995 Act. Pursuant to cl 1.11 of sch 2 of the 1995 Act a licence in force immediately before the commencement of the Act had effect as if it were a work authority under the 1995 Act. If licence 716 had been renewed for a period of 15 years commencing 27 November 1990 it would have continued as a deemed work authority under the 1995 Act until its expiry on 27 November 2005. There is no evidence of any application for renewal of licence 716 having been made prior to 27 November 2005.

42 WA 383 was granted by the Minister for Energy and Resources on 18 December 1999 as a result of an application made under s 19 of the 1995 Act. The land which is subject to WA 383 includes the 34 hectares of land described in permit TP 76218 on the eastern side and 25.7 hectares of land on the western side of Old Dandenong Road, Heatherton. However, it does not follow that licence 716 was renewed as WA 383.

43 I reject the Council's submission that licence 716 was 'in all likelihood' renewed as WA 383. There is no evidence of any application for renewal of licence 716. There is evidence of a discrete application having been made and granted under s 19(1) of the 1995 Act for WA 383 on 18 December 1999. If, contrary to my primary conclusion, condition 1 is construed as having an ambulatory effect, there is no basis for concluding that the reference in condition 1 to an approved working plan attached to licence 716 should be read as an approved work plan under WA 383.

44 The Senior Member erred in concluding that Lantrak contravened condition 1 of the permit 'because the use has not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in the Rehabilitation Plan'.[43] Condition 1 does not require Lantrak to comply with the RP.

The Council did not resile from reliance upon alleged contravention of conditions 18 and 19

45 As regards the Council's allegation that Lantrak contravened conditions 18 and 19, the Senior Member stated:

I have also already set out conditions 18 & 19 of the Permit which also relate to rehabilitation requirements. The Council ultimately does not rely on any alleged contravention of those conditions, so it is unnecessary to further consider them.[44]

46 It is common ground that there is no basis for the Senior Member's conclusion that the Council did not rely on Lantrak's alleged contravention of conditions 18 and 19. In these circumstances, the appropriate course is to remit the proceeding to the Tribunal for further hearing on the question of whether Lantrak has contravened conditions 18 and/or 19.

1. The application for leave to appeal and the appeal is granted.

2. The proceeding be remitted to the Victorian Civil and Administrative Tribunal ('Tribunal') constituted by Senior Member Code for further hearing on the question of whether Kingston City Council should be granted an enforcement order pursuant to s 114 of the Planning and Environment Act 1987 by reason of Lantrak Development Pty Ltd having contravened conditions 18 and/or 19 of amended permit TP76218 granted by the Melbourne and Metropolitan Board of Works on 26 March 1976.

3. If Senior Member Code is not available the Tribunal shall be constituted as determined by the President of the Tribunal.

48 I shall provide the parties with an opportunity to make submissions on costs. My provisional view is that the respondent should pay the applicant's costs, including reserved costs, on a standard basis to be taxed in default of agreement.

[1] Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622, [119] ('Tribunal Reasons').

[3] Applicant, 'Notice of Appeal', 22 July 2020, [6].

[5] CB23-4, 'Application for Enforcement Order under section 114 and Interim Enforcement Order under section 120 of the Planning and Environment Act 1987', 13 May 2019.

[7] CB60, 'Melbourne and Metropolitan Board of Works Amending Permit', 26 March 1976.

[8] CB136-8, 'Letter from Russell Kennedy Lawyers to the Victorian Civil and Administrative Tribunal', 20 May 2019.

[9] CB148-9, 'Respondent's Statement of Grounds', 19 June 2019.

[10] Respondent, 'Outline of Submission on Behalf of the Kingston City Council', 9 September 2019.

[11] Transcript of Proceedings, Kingston CC v Lantrak Developments Pty Ltd (VCAT, P865/2019, Senior Member Code, 12 March 2020) T 8 L 14-16.

[12] Transcript of Proceedings, Kingston CC v Lantrak Developments Pty Ltd (VCAT, P865/2019, Senior Member Code, 12 March 2020) T 12 L 3-4.

[13] Order of Senior Member Code in Kingston CC v Lantrak Developments Pty Ltd (VCAT, P865/2019, 18 March 2020).

[14] CB60, 'Melbourne and Metropolitan Board of Works Amending Permit', 26 March 1976.

[15] Cf AIG Australia Ltd v Jaques [2014] VSCA 332; (2014) 44 VR 780, 804 [81]; Nolan v Executive Director, Land Management Policy, Department of Environment & Primary Industries [2015] VSCA 301, [48]-[55].

[16] CB58, 'Melbourne and Metropolitan Board of Works Amending Permit', 26 March 1976.

[18] CB1097, 'Application for Alteration of Conditions TC Extractive Industry Licence No. 716', 26 August 1981.

[21] CB1130, 'Extractive Industries Development Act 1995 Work Authority 383', 18 December 1999.

[24] CB1147, 'Extractive Industries Development Act 1995 Transfer of Work Authority (Section 23)', 1 July 2009.

[25] CB1141-6, 'Extractive Industries Development Act 1995 Variation of Work Authority (Section 22)', 31 December 2009.

[28] CB1164, 'Rehabilitation Plan', 30 November 2011, [1].

[31] CB1129-30, 'Extractive Industries Development Act 1995 Work Authority 383', 18 December 1999.

[33] Respondent, 'Outline of Submissions in Response', 5 February 2021, [22].

[35] See Mineral Resources (Sustainable Development) Act 1990 (Vic) pt 12 div 4.

[36] See Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, 513; Vestey v Warrnambool City Council [2008] VCAT 963, [30].

[37] Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; (2004) 137 LGERA 189, 197 [43].

[38] Wilson v Lord Howe Island Board [2019] NSWSC 724, [228].

[39] Pegasus Building Pty Ltd v Curlis [2018] VSC 484, [47].

[40] Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202; (2018) 362 ALR 359, 367-8 [34]-[35].

[41] Cf Deputy Federal Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, 145; Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77.

[42] CB1098, 'Application for Alteration of Conditions TC Extractive Industry Licence No. 716', 26 August 1981.