Applicant v Respondents

1 The applicant, AVC Operations Pty Ltd is the lessee of licensed premises, the Anglers Tavern, at 2 Anglers Way, Maribyrnong (the Land), situated on the banks of the Maribyrnong River. The Land has been used for the purposes of operating a hotel since the 1870s.

2 In 2022, AVC applied for an amendment to an existing planning Permit, to enable an extension of the Tavern's beer garden.[1] That Amendment Application was made to the first respondent, Maribyrnong City Council, the responsible authority under the Planning and Environment Act 1987 (PE Act).

3 Among other planning controls to which the Land is subject under the Maribyrnong Planning Scheme, it is, relevantly, subject to the Land Subject to Inundation Overlay (LSIO) because it is subject to periodic flooding associated with the Maribyrnong River.[2] The Amendment Application was referred to the second respondent, Melbourne Water, which is a determining referral authority under the Maribyrnong Planning Scheme.[3] Melbourne Water objected to the application on grounds relating to flood risk and the increased risk to patrons that it assessed as arising from the extension to the beer garden.[4]

4 The Council did not make a decision on the Amendment Application within the statutory time limit, and AVC applied to the Victorian Civil and Administrative Tribunal for review of the Council's failure to grant the amendment. The Tribunal refused the grant of an amendment to the Permit.

5 AVC now seeks leave to appeal the Tribunal's decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) on the grounds of the following alleged errors of law:

(a) the Tribunal failed to consider a substantial and clearly articulated argument advanced by AVC;

(b) the Tribunal failed to give adequate reasons; and

(c) the Tribunal made findings in the absence of evidence, or which were otherwise irrational or unreasonable.

6 For the reasons that follow, I have declined to grant leave to appeal with respect to all three grounds.

7 The Land has been used continuously for the purpose of operating a hotel since the 1870s.[5] Because of that usage prior to the introduction of the planning scheme, the Land enjoys existing use rights and no permit is required for the use of the Land for the purposes of a hotel.[6]

8 The Permit the subject of AVC's Amendment Application authorised, among other things, construction of a larger terrace to the north of the main Tavern building.[7] The Amendment Application lodged with the Council on 4 May 2022, sought first to expand the larger terrace authorised by the Permit and secondly, to increase the area in which liquor could be sold and consumed and increase the patron numbers permitted on site.[8]

9 Melbourne Water, as a determining referral authority, objected to the Amendment Application pursuant to s 56 of the PE Act.[9] Melbourne Water's grounds of objections were described as follows:[10]

1. The proposed development is inconsistent with the Planning Policy Framework relating to drainage and floodplain management.
2. The proposed development is inconsistent with the purpose and decision guidelines set out in the Land Subject to Inundation Overlay (LSIO) within the Maribyrnong Planning Scheme.
3. [sic] The proposed development is contrary to the Department of Environment, Land, Water and Planning's (DELWP) 'Guidelines for Development in Flood Affected Areas' in relation to flood safety and flood damage.

10 Melbourne Water advised in the objection that it did not support the extension of the beer garden because of the high flood risk, and its assessment that 'the high flood depths within the property and on the road' presented a risk to future patrons. Melbourne Water also found that the 'proposed building structure for the new serving/bar, cool room and toilets are not in compliance with the minimum finished floor level requirements' under the Guidelines for Development in Flood Affected Areas, which require that new buildings be a minimum of 600mm above the applicable flood level.[11]

11 On 26 October 2022, AVC applied to the Tribunal under s 79 of the PE Act for review of the failure of the Council to determine the Amendment Application in the statutory timeframe.[12]

12 If the Council had made a decision within the statutory time frame, it would have been required by s 61(2) of the PE Act to refuse the Amendment Application by reason of Melbourne Water's objection.

Decision on application

(1) The responsible authority may decide -

(a) to grant a permit; or

(b) to grant a permit subject to conditions; or

(c) to refuse to grant a permit on any ground it thinks fit.

(2) The responsible authority must decide to refuse to grant the permit if a relevant determining referral authority objects to the grant of the permit.

14 The Council's position following the application for review was that it would have refused the Amendment Application on the basis of:[13]

1. The objection received from Melbourne Water pursuant to Section 56(1) of the Planning and Environment Act 1987 having regard to Clause 44.04 (Land Subject to Inundation Overlay) of the Maribyrnong Planning Scheme.
2. The proposed intensity of the increase in patron numbers and red line area is not appropriate in this location, having regard to the purpose and decision guidelines of Clause 52.27 (Licensed Premises) of the Maribyrnong Planning Scheme.
3. The proposed amendments create an unreasonable impact of the amenity of the local community, and is not suited for a use located outside of an established activity centre, contrary to Clauses 17.02-2S (Commercial-Out-of-centre development) and 21.08-6 (Economic Development - Licensed Premises) of the Maribyrnong Planning Scheme.

15 On 13 April 2023, the Tribunal made its decision in Phelan v Port Phillip CC.[14] In that case, the Tribunal found that where land used for a hotel enjoyed existing use rights, no permission was required under the planning scheme to increase patron numbers or increase the area in which alcohol was sold or consumed. On 31 May 2023, AVC filed an application to amend the Amendment Application. The amendments were, relevantly, to:[15]

(a) remove the application for permission under cl 52.27 of the Planning Scheme[16] to use land or sell or consume liquor if the number of patrons allowed under a licence is to be increased, or if the area that liquor is allowed to be consumed or supplied under a licence is to be increased; and

(b) reduce the proposed beer garden from 698 square metres to 571 square metres.

16 The Tribunal accepted that no permission was required by AVC under the Planning Scheme to increase the area in which liquor is to be consumed or supplied, or to increase the number of patrons, if the subject land has existing use rights as a hotel or bar.[17] The Tribunal granted leave to amend as sought and proceeded on the basis of the amended application.

17 The Tribunal conducted its review under Division 2 of Part 4 of the PE Act, which provides for the making of applications for review by the Tribunal of decisions of responsible authorities. Pursuant to s 85, after hearing an application for review, the Tribunal may determine the application in a range of ways, including by directing that a permit must not be granted. In the case of an application for review of a refusal or failure to grant, or a decision to grant a permit, the Tribunal may grant the permit and direct the responsible authority to issue it, or grant the permit with directions that it must or must not contain any specified conditions.[18] Unlike the Council's position when determining an application for a permit or amendment to a permit, the Tribunal exercising its review power is not bound, where a determining referral authority objects, to refuse a permit or application. The Tribunal's powers under s 85 of the PE Act are not subject to s 56, so that its discretion is not foreclosed by an objection by a determining referral authority.[19]

18 The matter was heard over five days in July 2023. The Tribunal, constituted by Senior Member Code and Member Bennett, made orders and gave reasons on 9 August 2023.

19 In summary, the Tribunal concluded that AVC's proposal as to the extension of the Tavern beer garden did not respond appropriately to the degree of risk arising from potential flooding.[20] The Tribunal focussed on flood risk impacts and the effect of the extension to the beer garden.[21] It noted that there was no dispute between the parties that the Maribyrnong River floods and creates a flood hazard for the Land, but that the key issues were:

(a) whether increased flood risk impacts would arise from the proposed extension to the beer garden; and

(b) whether the flood risk management measures proposed in connection with the Amendment Application were acceptable having regard to flood policy and flood management guidelines.[22]

20 The Tribunal concluded that there would, if the extension was approved, be a potential increase in patrons in the beer garden of 656 patrons,[23] which meant that there would be an increased population at risk from the existing flood hazard.[24] The Tribunal did not accept that an increased population at risk was acceptable because it arose in the context of an existing use. It interpreted the Planning Scheme and flood management policy and guidelines as requiring that proposed density increases be assessed very carefully in high risk areas, and that risk must be avoided and minimised if possible.[25] The Tribunal found that the mitigation measure of evacuation relied upon by AVC in its Flood Risk Management Plan (FRMP) 'being one of the lowest approaches on the hierarchy of flood risk management', was not adequate.[26] It concluded that AVC's proposal did not respond appropriately to the degree of risk and that no permission should be granted under the LSIO, with the consequence that the Amendment Application must be refused.[27]

21 The Tribunal affirmed the deemed decision of the Council to refuse to grant the Amendment Application.[28]

22 AVC's Notice of Appeal in this Court identifies three questions of law:

1. Whether the Tribunal constructively failed to exercise its jurisdiction by failing to respond to substantial clearly articulated argument in a way that affected its decision-making process?

2. Whether the Tribunal field to give adequate reasons for its decision?

1. Whether the Tribunal made findings for which there were no evidence or otherwise acted irrationally?

23 The Notice of Appeal identified four grounds of review, however only the following three were pressed at the hearing:

(a) Ground 1: The Tribunal committed jurisdictional error by failing to consider a substantial and clearly articulated argument advanced by the Applicant;

(b) Ground 2: The Tribunal committed jurisdictional error by failing to give adequate reasons; and

(c) Ground 3: The Tribunal committed jurisdictional error by making findings for which there was no evidence, or which were otherwise irrational.

24 A preliminary issue relevant to AVC's proposed grounds of appeal was that the Tribunal was unable to provide a transcript of the hearing as there was no recording of the hearing due to a technical error.[29] AVC made a request for the notes of the presiding Members, which was refused.[30]

25 Affidavits of witnesses who were involved in the hearing before the Tribunal were tendered in which they gave evidence of the oral arguments that were put to the Tribunal. The witnesses were:

(a) Ms Briana Pudel, solicitor who appeared for Melbourne Water;[31]

(b) Mr Jack Chiodo, town planning advocate who appeared for the Council;[32]

(c) Ms Emma Peppler and Mr Rupert Watters, counsel who appeared for AVC.[33]

26 Ms Peppler and Mr Watters exhibited copies of their speaking notes to their affidavits as contemporaneous records, subject to the qualifications that they did not assert that every word in the notes was said,[34] nor that they were read verbatim.[35]

27 The primary question in this appeal is raised by the first question of law and first ground of appeal. It is whether the Tribunal adequately addressed an argument made by AVC as to the potential for a FRMP to be imposed as a condition of granting the amendment to the Permit, which would serve as an appropriate risk management tool for the existing use, in circumstances where if the amendment was not approved, patron numbers could be increased without any need for planning permission and thus there would be no potential to impose conditions to manage risk. AVC referred to this latter scenario of what might occur if the amendment was not granted as an 'uncontrolled intensification of the land use'.[36]

28 Taking into account the unavailability of the transcript, there is also a factual question to be determined as to how the relevant argument was articulated to the Tribunal, and the scope of that argument.

29 The next issue, raised by the second question of law and ground of appeal, is whether the Tribunal's reasons were adequate in addressing the argument relating to the risk of an uncontrolled intensification of the land use if the Amendment Application was not granted.

30 Finally, the third proposed ground of appeal involves consideration of whether:

(a) the Tribunal in fact made a finding that there was a real risk that a population of 1,420 people attending the Tavern could be exposed to a material flood risk as a result of factors identified by AVC in its ground of appeal; and

(b) if that finding was made, there was no evidence for the finding, or the finding was irrational.

31 I have also considered, for completeness, whether the relevant finding made by the Tribunal properly characterised, which is somewhat different to the way in which the finding was characterised by AVC, was supported by evidence or otherwise irrational.

32 Section 148(1) of the VCAT Act provides, relevantly, that 'a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding'.

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

34 The requirement that the Court be satisfied that the appeal has a 'real prospect of success' has been interpreted to mean that leave may only be granted if the Court is satisfied that the appeal has a real, rather than a fanciful, prospect of success.[37]

The relevant provisions of the planning framework

35 Applications may be made for a planning permit pursuant to s 61 of the PE Act. Section 72(1) provides for amendments to permits, as follows:

A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

36 Permissions were required for the amendment under several provisions of the Planning Scheme. The permission relevant to the Tribunal's decision was that required under clause 44.04 of the scheme, relating to the LSIO overlay.

37 The purposes of the LSIO are identified in that clause as follows:

Purpose

To implement the Municipal Planning Strategy and the Planning Policy Framework.

To identify flood prone land in a riverine or coastal area affected by the 1 in 100 (1 per cent Annual Exceedance Probability) year flood or any other area determined by the floodplain management authority.

To ensure that development maintains the free passage and temporary storage of flood waters, minimises flood damage, responds to the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.

To minimise the potential flood risk to life, health and safety associated with development.

To reflect a declaration under Division 4 of Part 10 of the Water Act, 1989.

To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.

To ensure that development maintains or improves river, marine, coastal and wetland health, waterway protection and floodplain health.

38 Clause 44.04-2 identifies the works for which a permit is required, including a deck.

39 The decision guidelines are set out in clause 44.04-8, and provide for matters which must be considered by the responsible authority, before deciding on an application. They are, as relevant to the Amendment Application, as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

• The Municipal Planning Strategy and the Planning Policy Framework.
• Any local floodplain development plan.
• Any comments from the relevant floodplain management authority.
• The existing use and development of the land.

• Alternative design or flood proofing responses.
• The susceptibility of the development to flooding and flood damage.
• The potential flood risk to life, health and safety associated with the development. Flood risk factors to consider include:
  • The frequency, duration, extent, depth and velocity of flooding of the site and accessway.
  • The flood warning time available.
  • Tidal patterns.
  • Coastal inundation and erosion.
  • The danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.
• The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

40 The Tribunal also noted the general decision making guidelines in the Planning Scheme which apply to all applications, and in particular the following guidelines:[38]

• Any significant effects the environment, including the contamination of land, may have on the use or development.

• The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

41 The Planning Policies in the Planning Scheme which were relevant to the Amendment Application were clause 13.01-S1, Natural hazards and climate change, and clause 13.03-1S, Floodplain management. The relevant aspects of clause 13.03-1S included the following:

• Respond to the risk associated with climate change in planning and management decision making processes.

• Integrate strategic land use planning with emergency management decision making.
• Direct population growth and development to low risk locations.

• Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.

42 The Tribunal also accepted that the Department of Environment, Land, Water and Planning (DELWP) Guidelines for Development in Flood Affected Areas issued in 2019, (adopted by the Department of Transport and Planning) which could, pursuant to s 60(1A)(g) of the PE Act, be considered by the Council in assessing the Amendment Application, were relevant. The DELWP Guidelines were uncontroversially described by the Tribunal as providing 'an assessment framework and method to assist decision-makers in considering development proposals within flood affected areas.'[39] Most relevantly, Part 3 of the DELWP Guidelines (which deals with assessing development proposals) identifies key objectives for floodplain managers. Objectives 1 and 2 are as follows:[40]

Objective 1 - Safety:

Protect human life and health and provide safety from flood hazard.

• Applies to all development proposals.

• Proposals that are unable to meet the safety objective will be rejected.

Objective 2 - Flood damage:

Minimise flood damage to property and associated infrastructure.

• Applies to building proposals.
• The objective is usually satisfied by setting floor level requirements as a condition of the permit.

Ground 1: Failure to consider a substantial and clearly articulated argument

43 AVC's first proposed ground of appeal identified in its Notice of Appeal contended that the Tribunal committed jurisdictional error by failing to consider a substantial and clearly articulated argument advanced by it, and thereby constructively failed to exercise jurisdiction.[41] The argument was said to be made in response to the main basis of Melbourne Water's objection to the Amendment Application, which was that the grant of the amendment would result in an increase in the potential population at risk from flooding. AVC contended in written and oral submissions that in assessing any risk arising as a result of the grant of the permit application, the Tribunal should take into account:

1. The fact that [the] Applicant could already lawfully intensify the use to allow more people on site without the need for further planning permission and would likely be able to increase the maximum number of patrons permitted by its liquor licence under the Liquor Control Reform Act 1998.
2. The potential for the imposition of conditions requiring a Flood Risk Management Plan (FRMP) to mitigate risk to both the population of the existing Hotel and to any increased population.[42]

44 It is contended by the particulars to the grounds of appeal that in making its decision, the Tribunal accepted that planning permission was not required to increase patron numbers and that an application to increase patron numbers under the liquor licence had good prospects of success; and that a FRMP could be an appropriate (and the only economically justifiable) risk management tool for an existing use. The ground of appeal then states:[43]

Notwithstanding the submissions of the Applicant and its findings in relation to the potential for patron numbers [on] the site to be increased without the grant of the amendment, the Tribunal failed to consider the potential for the intensification of use if the amendment application were refused and the potential risk associated with such an intensification if it occurred and what effect that would have on the population at risk and the level of risk to which that population was exposed and how that might compare to the risk if the amendment were granted.

The judicial review principles relating to failure to respond to a substantial and clearly articulated argument

45 A failure by a decision maker to respond to a substantial, clearly articulated argument relying on established facts is recognised to be a legal error, being a constructive failure to exercise jurisdiction or a failure of procedural fairness.[44]

46 Although some references to the principle refer only to the obligation to respond to a 'substantial, clearly articulated argument', without referring to the requirement that the argument rely upon 'established facts',[45] the authority identified for the principle remains Dranichnikov, where it was relevant that in making the specific argument, reference had been made to material and evidence which had been presented to the first instance delegate and the reviewing tribunal.[46] It is clear from the authorities that the argument must at least be one which arises on the material before the decision-maker.[47]

47 Not every submission will constitute a matter on which a Tribunal must make findings.[48] Nor can it be concluded from a failure to refer to a particular submission in a decision-maker's reasons that the submission was not considered.[49]

48 The High Court has observed, in the context of decision making under the Migration Act 1958 (Cth) by a Minister who receives representations from a person whose visa is cancelled:[50]

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

49 Although the statutory context for the Tribunal's decision making is different in material respects, this observation does accurately express the caution required in applying this ground of appeal to decisions of the Tribunal. In particular there is a need to appreciate - in assessing whether submissions to the Tribunal are sufficiently substantial and clearly articulated - that this ground of review is a species of constructive failure to exercise jurisdiction, or of failure to accord procedural fairness. Only substantial arguments, clearly put to the Tribunal, call for such consideration that an absence of the consideration will have the effect that the Tribunal has failed to exercise its jurisdiction.

50 The standard of consideration of substantial arguments required of an administrative decision maker has been variously expressed, including as an 'active intellectual process'[51] or requiring 'proper, genuine and realistic' consideration.[52] The authorities also caution, however, that in applying these qualitative standards, a reviewing Court must be cautious not to slide 'into an examination of whether the outcome of the decision making was justified or correct'.[53]

51 More generally, in considering this ground of review, as with the other grounds of review discussed below, the Court must not construe the Tribunal's reasons minutely and with an eye attuned to error.[54]

What were the submissions which were put to the Tribunal?

52 As noted above, the Notice of Appeal contended that the argument made to the Tribunal which it did not consider, was that it should take into account:[55]

1. The fact that [the] Applicant could already lawfully intensify the use to allow more people on site without the need for further planning permission and would likely be able to increase the maximum number of patrons permitted by its liquor licence under the Liquor Control Reform Act 1998;
2. The potential for the imposition of conditions requiring a Flood Risk Management Plan (FRMP) to mitigate risk to both the population of the existing Hotel and to any increased population.

53 AVC in its written submissions in this Court described the relevant argument somewhat differently, as follows:[56]

... the proper approach was to consider and compare flood risk under two future scenarios:

1. First, a 'controlled intensification' scenario in which the Amended Application was granted, and conditions imposed which required the preparation and implementation of flood management measures; and
2. Second, an 'uncontrolled intensification' scenario in which the Amended Application was refused, but the number of patrons allowed on the Land was increased in any event and there were no enforceable requirements to have flood risk management measures in place.

The evidence as to the submissions made to the Tribunal

54 It was contended that this argument was made both orally and in writing to the Tribunal. As noted above, AVC faced the difficulty, in establishing what was said in oral submissions, that the Tribunal had not recorded the hearing due to technical error. It was necessary to consider the affidavits of those present at the hearing for the purpose of considering what was said in oral submissions. As the nature of the argument put to the Tribunal is a central consideration in applying this ground of review, and because the respondents did not accept that the argument as described in the Notice of Appeal or submissions was the argument actually put to the Tribunal, it is necessary to consider the evidence as to the submissions that were made by AVC in some detail.

55 The aspects of the written submissions on behalf of AVC at the hearing which were relied on by AVC were as follows:[57]

1. ... it needs to be emphasised that the Subject Land is already developed for a Hotel and will continue to be used for the purposes of a Hotel regardless of whether the Amended Application is successful or not.
2. This simple fact is critical because it means the refusal of the Amended Application will not remove the risks about which the Council and Melbourne Water express concern. To the contrary, it simply means that the existing use will continue subject to the existing conditions.
3. To the extent it might be put that refusing the Amended Application would at least prevent an increase in patrons in a location subject to flood risk or prevent the entrenchment of the use, even this is unclear. The only constraint on patron numbers is that imposed by the liquor licence which is in turn driven by physical capacity. The Applicant considers that, even if the beer garden is not expanded, there may be scope to accommodate more patrons within the existing beer garden and buildings.
4. In this context, the Amended Application provides potential benefits to both the proponent and the community because, while it would enable the Tavern to accommodate more people on site (or the same number in greater comfort), it also provides the opportunity to impose conditions which more effectively manage flood and amenity risks. In particular, the Proponent is amenable to conditions which would:

1. Require the preparation and implementation of a flood risk management plan ('FRMP') which would, among other things, require the closure of the Tavern on days of a minor flood risk (and anything above a minor flood risk). This approach mimics, but is arguably more conservative than, that taken with many uses which do not operate when the bushfire risk is extreme or Code Red.

56 The submissions later reiterated that the Land was already developed in a way that means there are a potentially large number of people on site during operating hours, and no specific planning conditions to manage the flood risk associated with that situation, so that there would be a benefit in imposing a condition on any permit which required the preparation and adoption of a FRMP to manage the risk for the beer garden and the Tavern building.[58]

57 With respect to the oral submissions made at the hearing, the evidence of Ms Peppler was that she made submissions as to flooding, and Mr Watters addressed the remaining matters and made opening and closing submissions. Her handwritten notes of Mr Watters' opening submission include the following:[59]

Refusal will not mitigate/limit:- intensification; - existing risk

...

'Controlled intensification'

1700 under BCA: theoretical maximum

...

Are real benefits with allowing controlled intensification

Beer garden = may enable more people

Intent is more people: but that's acceptable given risk conditions

58 Ms Peppler also exhibited the speaking notes she had prepared for the hearing. Her evidence was that the oral submissions she made in the hearing closely resembled the content of the speaking notes.[60] The speaking notes included, most relevantly, the following:

We submit:

1. It is the case that the proposal will not change the level of existing flood risk for the site: ie the proposal does not alter the existing likelihood of flooding

2. But - the proposal would have an impact on the risk of consequences of the flooding: a positive impact though, and not a negative impact

3. Because to approve the proposal secures a more certain and improved outcome in terms of the consequences of the flooding - and therefore we say in fact has a beneficial impact on the existing level of risk (cf increasing the risk)

....

Number of people, and how risk relates to no of people:

1. We say theoretical increase in number of people, does not increase risk - because risk is likelihood x consequences - and here FRMP means no one is on site when water inundated.

FRMP means patrons are not exposed to the hazard.

1. Also not a use where existing numbers are consistent - may not have more people than now. Maybe everyone will just sit outside in nice weather. Or may be lesser density in larger beer garden than would be in current beer garden.

2. We also say it's not a case of x people now, and y people under approval. Can intensify existing site. Only subject to liquor approval, which does not take account of flood.

....

1. Important points for this case are:

....

1. Existing use -

2. Existing uses are the subject of different applicable planning control and policy directions

a. Is a difference between creating a new risk

1. And potentially marginally increasing - and then managing - an existing risk

59 The speaking notes indicate that in reply, the following relevant points were to be made:[61]

... can increase patrons within existing footprint.

1. Expanded beer garden would enable more persons in the beer garden - but doesn't necessarily follow will be more people on the site overall at any given point in time. Ultimately will depend upon what Liquor Commission determines.

60 Mr Watters exhibited to his affidavit his speaking notes for his opening and closing submissions. Relevantly the notes included the following:[62]

1. This context is critical. It is accepted that, if the Hotel did not exist, there would be reasonable arguments against allowing such a use to establish or for the imposition of strict conditions if it were to be established. That is not, however, the situation that [the] Tribunal faces. Rather, the Tribunal has to balance the risks of granting the permit which is likely to lead to a controlled intensification against the risks of uncontrolled intensification which could occur if a permit is refused.
2. Council did not dispute the capacity for uncontrolled intensification to occur.
3. Melbourne Water did put that there is no evidence that uncontrolled intensification could occur. We make the following points in response:

1. First, it is not in dispute that, because the Land enjoys existing use rights, no permit is required to increase the number of patrons allowed on site under 52.27 or to expand the area in which liquor is served. As such, there is no need for planning permission to expand the use;
2. Second, it does not appear to be in dispute that the only legal constraint on patron capacity is under the liquor licence and for liquor licensing capacity is largely an issue of physical capacity, as determined by reference to the Building Code of Australia and the physical area of the development. AVC's advice is that, having regard to those considerations, the maximum capacity of the site is 1,700 persons.

1. In this context, there is some incongruity between - on the one hand - MW's saying that, even with a FMRP in place the risks of controlled intensification are unacceptable and - on the other hand - while not asserting that uncontrolled expansion is not possible, arguing that any risk associated with it should be ignored and disregarded. In that context, we note that there is certainly no evidence to suggest that a greater number of persons could not be accommodated in the existing buildings on the Subject Land.

61 The other participants in the hearing who gave evidence had some general recollections of the submissions. In the case of AVC's solicitor, Mr Edwards, his recollection was broadly consistent with the notes made by Ms Peppler and the speaking notes tendered by both Ms Peppler and Mr Watters. Ms Pudel, the solicitor for Melbourne Water, recalled Mr Watters' use of the phrase 'controlled intensification' to describe the Amendment Application but also recalled him saying that the precise number of additional patrons was difficult to quantify, and that it 'was clear that there would be more people on the site'.[63]

62 In submissions in this Court, taking into account the evidence which had been tendered, AVC contended that it 'advanced the argument that approving the proposed development would afford an opportunity to advance a level of control related to flood risk, which would not otherwise be possible ... and that this would be... a nett benefit having regard to the existing situation which includes no control over the existing operation in relation to flood and no consideration of flood related risk in relation to ... any future increase in patron numbers, whatever they might be.'[64] It was said that this argument 'necessarily requires a comparison of the risks which exist now, including the risk of uncontrolled expansion, and whether by comparison those risks are minimised or otherwise rendered acceptable by the grant of a permit subject to conditions which would regulate the flood response... what's called in the submissions controlled expansion, even if it also increased the number of patrons'.[65]

63 As is evident from the above, the way in which AVC articulated the argument which had been put to the Tribunal - first in its Notice of Appeal, then in written submissions and oral submissions on this application for leave to appeal - involved some variations. For the purposes of clarity in considering the precise ground of appeal which was put, I invited counsel for AVC during the hearing to identify in writing, taking into account all of the evidence, the argument that was said to have been made. AVC filed a document (the Summary) which described the argument as follows:[66]

The argument was that the Tribunal was required to consider a comparison between the risk of an increase in patron numbers (people present on the land) under the permit application with risk mitigation controls (referred to at times as "controlled intensification") compared to the existing risk, which included the possibility of an increase in patron numbers beyond the remit of the planning system and therefore not subject to the permit application process (referred to as "uncontrolled intensification").

It was accepted that patronage could be increased outside the planning permit process by way of an amendment to the Applicant's liquor licence, which would not require consideration of flood risk or the imposition of risk mitigation measures. This was part of the "existing risk" in the sense that it was a risk that existed under the status quo in the absence of the granting of the permit.

64 In the consideration which follows, I will refer to this argument as finally summarised by AVC as the 'risk comparison argument'.

Finding as to the arguments which were made to the Tribunal

65 Based on the evidence of each of those present at the hearing, I conclude that the argument put to the Tribunal did not involve the clear articulation of the risk comparison argument (nor the submission articulated in the Notice of Appeal or AVC's submissions, to the extent that there were differences). As a whole, the submissions and evidence did refer to the present 'scope to accommodate more patrons within the existing beer garden and buildings', subject to the only constraint being the liquor licence, which was in turn driven by physical capacity.[67] However, there was no submission that this potentially created a risk which the Tribunal was required to consider and balance against the risk arising if the Amendment Application was granted and a FRMP required.

66 I conclude on the basis of Mr Watters' speaking notes and Ms Peppler's written notes of the hearing, and having regard to the evidence of Ms Pudel, that Mr Watters referred in opening submissions to the benefit of a 'controlled intensification' of existing use on the site, if the application was granted. I am not persuaded that he referred in terms to the risk of 'uncontrolled intensification' or 'expansion' of use if the Amendment Application was not granted, and the need to consider that risk. Although the term 'uncontrolled intensification' was referred to in Mr Watters' speaking notes, it was not noted in Ms Peppler's notes of the hearing, nor was it recalled by Ms Pudel (who did give evidence that she recalled Mr Watters using the phrase 'controlled intensification'). Mr Watters did not assert that he did say every word in the notes. I find on the balance of probabilities that this term was not used. That may have been because there was no clear position put that the existing use was not in any event subject to a FRMP or some similar risk management strategy; it is unnecessary for present purposes to determine why. But I am persuaded that there was no clear submission put that the Tribunal should compare risks of 'uncontrolled' increase in patron numbers as opposed to 'controlled' risk if the Tribunal granted the application on condition of a FRMP being in place.

67 The emphasis of the submissions made was that there was a benefit in granting the Amendment Application because, while it may enable more people to be accommodated on site, it also would require a FRMP to be in place to manage flood risk.

68 The argument went no further than putting that the Tribunal should consider the benefit of the FRMP being required under the Amendment Application, but not under the status quo which included possible increased patron numbers. This is consistent with:

(a) the written submissions to the Tribunal which refer to the existing risk and the potential to increase patron numbers, and the benefit of being able to require a FRMP if the Amendment Application was granted;

(b) the fact that AVC did not submit that there was no FRMP already in place, nor that it would not use one of the kind proposed, if the Amendment Application was not granted, but AVC sought to increase patron numbers (so that it would have been difficult properly to make a submission that the risk in that case would be 'uncontrolled');

(c) the scope of the evidence and material before the Tribunal which (as discussed below) did not include evidence or material enabling any assessment of what increase there may be to patron numbers if the amendment was not granted or the likelihood of that occurring, nor other information directed to enabling a meaningful comparison of that risk as compared to the risk arising if the application was granted.

69 I conclude, therefore, that the submissions were not as described in the Summary, nor as described in the Notice of Appeal and submissions of AVC (to the extent that they were different). The central focus of the submissions made was to emphasise what was described as the potential benefit of granting the Amendment Application, so that a FRMP could be required as a condition of that grant.

70 The Tribunal in its Reasons first addressed the application to amend the Amendment Application, which as noted above involved amendments including a reduction in the footprint of the proposed beer garden from 698m2 to 571m2, and removal of that part of the original application which had sought permission, pursuant to cl 52.27 of the Planning Scheme, to increase patron numbers and the area in which liquor could be consumed.

71 The Tribunal agreed with AVC and the Council that no permission was required under cl 52.27, given the existing use rights with respect to the Land for the operation of the Tavern. The Tribunal noted that the uncontested evidence was that the Tavern was established on the Land and that a hotel had been continuously operating on the Land for over 150 years. It followed the reasoning of the Tribunal in Phelan in concluding that no permission was required given the existing use rights, and observed:[68]

The activities within the scope of the existing use right (in this case, the sale or consumption of liquor) may change or intensify provided the purpose of the use as a hotel or bar continues.

We characterise the building and works in the application as facilitating change or intensification of the activities that are consistent with the purpose of the existing use.

72 The Tribunal then addressed other aspects of the Planning Scheme not relevant for present purposes and made observations as to the limited standing of certain individual respondents. It proceeded to consider issues relevant to flood risk.

73 The Tribunal commenced the discussion relating to flood risk with observations as to patron numbers, noting that the issue of patron numbers, and in particular additional patron numbers anticipated to use the extended beer garden, is relevant to flood risk impacts.

74 The Tribunal first determined whether there were likely to be additional patrons at the Tavern following construction of the extended beer garden and the quantum of that addition.[69] Following the removal from the Amendment Application of the request for permission for increased patron numbers, there was no specific information before the Tribunal as to what if any increase in patron numbers was anticipated if the expansion to the beer garden was permitted. The Tribunal ultimately concluded that it was reasonable to identify 'the potential increase in maximum patron numbers in the extension to the beer garden as 656 patrons'.[70] Its reasoning which led to this conclusion was as follows:[71]

(a) the Tavern's liquor licence was for a maximum of 764 patrons, but there was no information as to whether the current maximum of 764 patrons was met at times;

(b) the permit application originally sought to increase the maximum patron numbers from 764 to 1,564;

(c) AVC submitted that if the extension was permitted, the current liquor licence would not permit more than 764 patrons, and the outcome would be an ability to accommodate up to 764 patrons at more comfortable and less dense levels;

(d) there was, however, a reasonable inference to be drawn that AVC intended to seek a liquor licence variation to increase maximum patron numbers, based on four matters:

(i) The original application had sought an increase to 1,564 patrons based on an extension to the beer garden of 698m2, which indicated an intention on AVC's part to seek a liquor licence variation to increase maximum patron numbers if the Amendment Application was allowed.

(ii) AVC did not deny the likelihood or possibility of such a licence variation application; it said only that such an increase is 'uncertain'.

(iii) An application for a licence variation does not require planning permission. Whether a licence is varied to allow an increase in maximum patrons is largely a function of floor area, facilities and building design, and the liquor regulator would not be taking flood risk into account in deciding a licence variation. The Tribunal anticipated that there would be good prospects for a successful licence variation.

(iv) There was no evidence of substantial changes to existing internal spaces at the Tavern, so that it was logical to infer that most of the potential increased number of patrons would be accommodated in the extension to the beer garden.

75 The Tribunal acknowledged that the patron number increase to 1,564 originally identified in the Amendment Application was unlikely given that the extension sought to the beer garden was 18% smaller. An increase to a figure 18% less than the original increase of 800 patrons (in addition to the existing limit of 764) was about 656 more patrons. This would equate to a new potential maximum of 764 plus 656 or 1,420 patrons.

76 Having made this conclusion about the potential increase in patron numbers if the beer garden was extended, the Tribunal turned to the question of whether the proposal gave rise to unacceptable flood risk impacts. It noted the submission of Melbourne Water as the floodplain management authority that the proposal involved an unacceptable outcome having regard to (i) the Planning Policy Framework and the purpose and decision guidelines in the LSIO and (ii) Objectives 1 and 2 of the DELWP Guidelines. The Tribunal considered that there were two key issues raised by the submissions:[72]

(a) whether the proposal resulted in off-site flood impacts (which it later concluded were negligible, and for that reason are not relevant to address further);[73] and

(b) whether the proposed flood risk management measures are acceptable having regard to the relevant flood management guidelines and policy.

77 Before addressing these questions, the Tribunal reviewed the LSIO, the DELWP Guidelines including the safety criteria for development, and other relevant policies and guidelines.[74] It then turned to the factual questions, and relevantly for present purposes to the question of the nature of the flood hazard that it was required to consider.

78 In assessing the flood hazard, the Tribunal referred to Melbourne Water's assessment that the proposal failed to meet the assessment criteria for flood safety in the DELWP Guidelines. It also considered the hydrology evidence of AVC's expert Mr Swan.[75]

79 The Tribunal found that the Land was 'particularly susceptible to flooding' and historically there had been numerous occasions in which flooding would have impacted the proposed beer garden area to some degree.[76] It referred to Mr Swan's evidence that:[77]

• it is expected that the waters begin to rise at the Maribyrnong gauge between 12 and 18 hours after the start of prolonged heavy rainfall;
• in a large flood event, it is expected that the minor flood level will occur 6 hours after the start of rise of the River; and
• the State Emergency Service ('the VICSES') and the Council are expected to receive 8 to 12 hours of warning of a flood peak occurring at the Maribyrnong gauge, measured from the Keilor gauge.

80 The Tribunal referred to the City of Maribyrnong Storm and Flood Emergency Plan issued by VICSES[78] (the MSFEP) which indicated that typical travel times between the Keilor and Maribyrnong gauges are between 1 and 6 hours for a Minor Flood Level; between 2 and 5 hours for a Moderate Flood Level and between 2 and 4 hours for a Major Flood Level. The Tribunal also referred to two flood events, one in January 2011 when the Maribyrnong River rose to 2.21m and caused flooding over the lower floor of the existing Tavern. The second was in October 2022, which was the third largest recorded for the Maribyrnong River and which resulted in the Tavern being cut off from all access roads.[79]

81 The Tribunal observed that the amended plans, the subject of the Amendment Application, showed the bar and amenities areas as including a 12m long bar, fridges, drinks area, a cool room, freezer room, storage room and patron toilets which would all be affected in a Major Flood Level event.[80]

82 The Tribunal then considered the flood risk management measures proposed by AVC, being to adopt the FRMP and implement it in the event of a flood occurring. There were different strategies for a flash flood (shelter in place) and for river flooding events. The Tribunal noted that, in the event of a river flood event, 'the FRMP strategy relies on people being evacuated from the hotel before the flood waters reach the subject land'.[81] The Tribunal summarised the evacuation plan as providing guidance for the responsible person or delegates to:[82]

• advise all building occupants (patrons, visitors, staff), to evacuate from the building until further notice as it may be closed for some time;
• confirm that all patrons, visitors and staff have evacuated form the building; and
• lock down the building for the duration of flooding in the vicinity of the building.

83 The Tribunal observed that AVC relied on the evidence of its hydrology expert Mr Swan to the effect that by evacuating the patrons, it is possible to mitigate the flood risk to people to an acceptable level, if not eliminate it. Melbourne Water's objection was based on avoiding flood risks by avoiding intensification of land use and/or development on flood prone land.[83]

84 The Tribunal then considered whether the proposed flood risk management measures were acceptable. The Tribunal's reasons on this issue extended over seven pages, but can be summarised as follows:

(a) AVC's case relied heavily on the FRMP.

(b) The FRMP strategy of sheltering in place in flash flood events was acceptable because during a local flash flood there was still safe access and egress from the building. The FRMP strategy for river flooding relied on people being evacuated from the Land before the flood waters reached it.

(c) Mr Swan's opinion was that development was appropriate in the LSIO, for various reasons the Tribunal acknowledged. He also considered the FRMP would completely mitigate the risks associated with access to the subject land in the event of a flood as there would be sufficient flood warning time such that there would be no people on the subject land at the time of flooding. However the Tribunal's understanding of Mr Swan's evidence was that he only considered the existing use and maximum patron numbers and did not expressly consider an increase in maximum patron numbers. The Tribunal also noted Mr Swan's evidence that it would not be acceptable to put the Tavern on the subject land if it was a greenfield site and not an existing use.

(d) For the existing development, the Tribunal accepted that:[84]

... implementing an effective FRMP can reduce the risk to life, health and safety (as well as reducing flood damage to buildings and their contents) associated with floods. Flood warning and evacuation plans may, in the existing case, be the only economically justifiable flood risk management measure.

(e) However, the proposal was for an extension to the Tavern and associated with that extension, an additional maximum 656 patrons, which increased the population at risk in that a greater number of people need to be warned and evacuated.

(f) The Tribunal did not accept that an increased population at risk (656, which it regarded as a large number of people) was acceptable because it is an existing use. Its interpretation of the best practice flooding guidelines and handbooks was that 'existing use is (perhaps reluctantly) accepted, but proposed density increases should be assessed very carefully in high-risk areas such as this, and avoided and minimised if possible.'[85]

85 The Tribunal stated that its 'ultimate finding is that the proposal does not "respond appropriately to the degree of risk"'.[86] It then set out its reasons for that conclusion.

86 First the Tribunal noted that the FRMP with its evacuation strategy was a flood risk mitigation measure, and observed:[87]

The difficulty with relying on evacuation in this case is that mitigation measures such as evacuation are low in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).

The strategy in the planning scheme is to 'avoid intensifying the impact of flooding through inappropriately located use and development'.[88]

One of the purposes of the LSIO is 'to minimise the potential flood risk to life, health and safety associated with development'.

The words 'avoid' and 'minimise' in these provisions, rather than the word 'mitigate' are indications that the planning scheme is aiming to employ strategies higher in the hierarchy of flood risk management.

87 The Tribunal then observed (in a passage which is the focus of ground 3) that a mitigation measure of evacuation relies on a series of events going to plan, and identified those events. It acknowledged that the FRMP was not finalised and would need to be approved by Melbourne Water and the Council before the development starts, but concluded that the idea of evacuating up to 1,420 people, many trying to flee from the car park, is too risky, and it did not support increasing the population at risk by 656 people in this case.[89]

88 The Tribunal noted that in contrast to the mitigation measure of evacuation being one of the lowest approaches on the hierarchy of flood risk management, one of the highest approaches on the hierarchy is avoidance by land use planning.[90]

We are not satisfied that the proposed development is consistent with the LSIO objective to minimise the potential flood risk to life, health and safety. Nor are we satisfied that the proposed development is consistent with the floodplain management strategy in the planning scheme,[92] to avoid intensifying the impact of flooding through inappropriately located development.

Further, we are not satisfied that this development achieves the direction for floodplain management in Victoria as set out by the VFMS of 'avoiding or minimising future risks' through the use of planning controls to manage the potential growth in risk and 'not making things worse'.

...

In our opinion the proposal fails to comply with Objective 1 and fails to substantially comply with Objective 2 of the DELWP Guidelines, and comprises an unacceptable outcome with respect to flood safety and flood damage.

The subject land is subject to high flood hazard, well above the DELWP Guidelines safety criteria, for the Maribyrnong River flood. We are not satisfied that the FRMP, which relies on mitigation measures of flood warning and evacuation, is an effective measure to manage flood risk to a level which justifies a development that increases density and the population at risk in the floodplain.

Conclusion

A risk informed approach to land use planning must be taken for the proposed development. It should not be approved due to the high flood hazard associated with this location and the increased population at risk resulting from the development.

90 As noted above, the Tribunal then observed that where multiple permissions are required under a planning scheme, a permit must only be granted if permission is granted under each element, so that the failure to grant permission under the LSIO meant that the application to amend the permit must be refused.[93]

91 AVC contended that the submission requiring comparison of risks in the controlled intensification and uncontrolled intensification scenarios was put as a central premise or critical part of the case advanced by AVC before the Tribunal and warranted the Tribunal's consideration of it. However there was no acknowledgement of the submission evident in the Tribunal Reasons.[94] AVC identified the submission as being one that was relevant to the exercise of the Tribunal's discretion as to whether the amendment should be granted.[95]

92 AVC contended that the Tribunal acknowledged that the existing use of the Land would be as a hotel and that the question of patron numbers was relevant to flood risk impacts. It was also submitted that the Tribunal accepted that no permit was required to increase patron numbers and an application to increase patron numbers under the liquor licence 'enjoyed good prospects of success'.[96] However it was contended that the Tribunal did not acknowledge that AVC could lawfully increase patron numbers without the Amendment Application being granted; nor did the Tribunal compare the risks under the 'two future scenarios'.[97] This failure to compare the two scenarios was said to have been material because:[98]

...the Tribunal's evaluation of risk proceeded on the basis that there was a necessary [causal] link between the expansion of the beer garden and an increase in patron numbers on the Land. For the reasons given, no such necessary link existed and expansion could have occurred independently of the grant of the Amended Application. Had the Tribunal accepted this submission, it would have had to consider the risks of uncontrolled intensification and the benefits of ensuring that such uncontrolled intensification did not occur.

93 AVC submitted at the hearing before this Court that the Tribunal assumed that the intensification of use or increase in patron numbers would be 'completely uncontrolled', in the sense that there was 'no regulatory mechanism to enforce' controls on intensification of use; that the Amendment Application 'represented an opportunity to fill that regulatory gap', and that this was 'in and of itself an important benefit'.[99] AVC contended that although the Tribunal did acknowledge that there would be a benefit to patrons from a FRMP, it did not engage with the potential for the population at risk to increase up to a theoretical maximum of 1700 even if the Amendment Application was not granted, and there would be no statutory obligation requiring a FRMP in that circumstance.[100] The Tribunal did not address the argument that 'intensification could occur in any event, and without the imposition of risk management measures'.[101]

94 Melbourne Water contended that leave to appeal should be refused on the first ground of appeal because:[102]

(a) AVC did not make the submission in the Tribunal that it now contends it did, and to the extent that it did make a submission it was no more than a 'contingent or otherwise insignificant point' which was considered by the Tribunal.

(b) AVC's submissions did not at any point call for a specific comparison in the way that is now on appeal said to have been the substantial and clearly articulated argument.[103]

(c) If the submission requiring consideration of 'uncontrolled intensification' was in fact made, the Tribunal did in any event make sufficient findings in relation to flood risk in the scenario of increased patron numbers where the amendment was not granted.[104]

95 Melbourne Water observed that there was significant divergence in how the argument that AVC contended that it had put to the Tribunal, and that the Tribunal was obliged to consider, had been characterised throughout its case, and in particular the difference between the argument as stated in the Notice of Appeal and the way in which it was put in submissions. It also submitted that the ground of review in reality is a complaint as to how the Tribunal considered the argument, rather than whether it did so. This was based primarily on the particulars to the grounds in AVC's Notice of Appeal where it was said that:[105]

... the Tribunal failed to consider the potential for the intensification of use if the amendment application were refused and the potential risk associated with such an intensification if it occurred and what effect that would have on the population at risk and the level of risk to which that population was exposed and how that might compare to the risk if the amendment were granted.

96 Melbourne Water also submitted that the principles referred to in Dranichnikov relating to a failure to exercise jurisdiction through failure to address a substantial, clearly articulated argument requires the argument also to be based on established facts.[106] However, the argument put forward by AVC was not based on established facts but involved a hypothetical comparison.[107]

97 It was submitted by Melbourne Water that the Tribunal did engage with AVC's submissions.[108] Taken as a whole, AVC's complaint as raised under Ground 1 was one about how the Tribunal responded to the argument raised, rather than one that the Tribunal had not considered a substantial and clearly articulated argument. It was submitted that AVC's argument impermissibly invites merits review.[109]

98 The Council also submitted that the argument that AVC now says it made - the risk comparison argument - was not put to the Tribunal. It submits that elements of the argument, such as the potentially increased patron numbers if the Amendment Application was not granted, were not put to the Tribunal in such a way as to suggest that it was a critical matter for the Tribunal to consider, noting that AVC's written submissions were equivocal as to whether any increase in patron numbers may occur absent the grant of the approval sought. The Council also observed that AVC's expert hydrologist did not in his report address a scenario involving an increase of patron numbers at the Tavern, nor address any comparison of risk under the two future scenarios referred to by AVC. It was submitted that the argument, to the extent that it was put to the Tribunal, rose no higher than a hypothetical and largely rhetorical device and was not a substantial and clearly articulated argument.[110]

99 The Council, like Melbourne Water, submitted that the Tribunal did consider the elements of the submissions put by AVC, but that it did not accept a fundamental premise of the argument: that the FRMP was an effective measure to respond to the flood risk that it was required to consider.[111]

100 I have concluded that the first proposed ground of appeal has no prospects of success for the following reasons. In summary, the submissions as identified in this appeal, the risk comparison argument, do not reflect the submissions actually made to the Tribunal. The submissions actually made as to the potential to increase patron numbers even if the extension was not granted, and as to the benefit of the FRMP, were addressed by the Tribunal. To the extent that submissions were made that any comparison was called for, this was not done in a way which made it clear that it was a substantial part of AVC's case, nor was it clearly articulated. Further, AVC did not make available to the Tribunal any evidence or other material which would have made such a comparison meaningful or appropriate.

The submissions made to the Tribunal were not as now characterised on appeal

101 The evidence as to the nature of the submission put to the Tribunal is considered above. I have concluded that AVC did not put the risk comparison argument clearly and specifically to the Tribunal. The argument was instead put as several related propositions. They were that the FRMP would be an effective measure to manage risks to the safety of patrons in the event of flood, even if patron numbers were increased as a result of the proposed extension to the beer garden; patron numbers could be increased even if the Amendment Application was not approved; the Planning Scheme does not currently impose any flood risk management conditions on the Land; and that approving the Amendment Application would involve a benefit in that a FRMP could be required as a condition of planning permission.

102 The submissions made did not involve a proposition that the Tribunal was required to consider a comparison between the risk of an increase in patron numbers under the permit application with the FRMP to the existing risk which included the possibility of increased patron numbers without flood risk mitigation controls being required.[112] To the extent that the proposed ground of appeal is based on that argument, it cannot succeed, as it was not a substantial and clearly articulated argument put to the Tribunal.

103 The contention that a risk comparison argument had been put as a substantial and clearly articulated argument faces several difficulties.

(a) First, the submissions made were not entirely clear in their articulation, as AVC did not make a clear submission as to whether patron numbers would increase in the event of the Amendment Application being refused. AVC simply said that it 'considers that...there may be scope to accommodate more patrons within the existing beer garden and buildings'.[113] While AVC also had not submitted that it intended to increase patron numbers if the Amendment Application was granted, it was a conclusion that was open to the Tribunal to reach, given that part of the original application to the Tribunal included the application to increase patron numbers, and related to an expansion of the area which could be occupied by patrons. No challenge was made to the Tribunal's reasoning as to the likely increase in patron numbers if the Amendment Application was granted.

(b) Secondly, the submission did not make clear whether there would or would not be risk mitigation measures in place if the Amendment Application was not granted. Plainly it was open to AVC to adopt risk mitigation measures and there is no reason why the Tribunal should have assumed (in circumstances where no submission was made or evidence provided on the issue) that there were no such measures currently in place; or that measures would not be put in place if the liquor licence was amended to allow higher patron numbers.

(c) The characterisation of the argument as 'substantial' is difficult. In substance, the submission actually put went no further than the relatively obvious proposition that a FRMP may be required as a condition of granting the Amendment Application, whereas adoption of such a measure could not be enforced if not. It is difficult to characterise it as substantial when the issue for the Tribunal to which this submission was relevant was whether the proposal the subject of the Amendment Application appropriately managed risk. That question did not require the Tribunal to speculate as to what AVC may or may not do in circumstances where the proposal was not approved.

104 That is a sufficient basis on which to conclude that the ground of appeal cannot succeed. For completeness I provide reasons for my further conclusions that:

(a) the Tribunal did consider the submissions which AVC did make on the benefit of the FRMP, and on the potential for expansion or intensification of patron numbers and use;

(b) even if I am wrong in concluding that the risk comparison argument was not put to the Tribunal (so that it was not a substantial and clearly articulated argument), it was also not based on established facts, nor supported by evidence or material which would have enabled the Tribunal to find facts for the purposes of assessing the argument.

The submissions made on patron numbers, risk, and the FRMP were considered by the Tribunal

105 The submissions which AVC did put to the Tribunal (as relevant to this argument) involved, as noted above, the following propositions. First, the FRMP would be an effective measure to manage risks to the safety of patrons in the event of flood, even if patron numbers were increased as a result of the proposed extension to the beer garden; (ii) patron numbers could be increased even if the Amendment Application was not approved; (iii) the planning scheme did not currently impose any flood risk management conditions on the Land; and (iv) that approving the Amendment Application would involve a benefit in that a FRMP could be required as a condition of planning permission.

106 The Tribunal considered the FRMP and found it an appropriate response in the case of flash flooding. With respect to the risk of river flooding, it noted the evidence of Mr Swan and his opinion that there was sufficient flood warning time such that risks to patrons would be completely mitigated as there will be no people on the Land at the time of flooding.[114] The Tribunal acknowledged that the FRMP could be an appropriate risk management tool for existing use. It stated:

We accept that, for the existing development, implementing an effective FRMP can reduce the risk to life, health and safety (as well as reducing flood damage to buildings and their contents) associated with floods. Flood warning and evacuation plans may, in the existing case, be the only economically justifiable flood risk management measure.

However, the proposal is for a building extension to the Tavern and, associated with that extension, an additional maximum 656 patrons. This is a development that increases the population at risk. With this larger population at risk, a greater number of people need to be warned and evacuate.

107 These findings consider, but do not accept, the first submission that the FRMP is an effective and appropriate risk to increased patrons on the Land. The reasons for that non acceptance are further elaborated later in the Reasons, as discussed further below. The above findings also implicitly acknowledge, although not stating explicitly, that a FRMP is not currently required by the Planning Scheme. At this point in the Tribunal's Reasons it had already considered and accepted that it was open to AVC to apply to amend its liquor licence to increase patron numbers, and that no permission was required under the Planning Scheme to do so.[115] In referring in the passages above to the FRMP as a means to reduce risk 'for the existing development', and as the 'only economically justifiable flood risk management measure' it must be taken to have acknowledged that the Planning Scheme did not currently require any FRMP, but that a FRMP may be the only economically justifiable measure to reduce risk in the existing development. I accept for these reasons that the Tribunal considered arguments (ii) and (iii) identified in paragraph [105] above.

108 That leaves the final submission, that there would be a benefit in approving the Amendment Application as there would be measures to address flood risk required under the Planning Scheme, which were not currently required. The Tribunal, although not using the language put forward by AVC of the FRMP providing a 'benefit', addressed the substance of the argument in some detail. It did so by analysing why it considered that the FRMP did not in fact provide a substantial benefit, because it considered that it would not minimise or avoid the increased risk arising from substantial additional numbers of patrons, and would only mitigate that risk. The Tribunal concluded that it was preferable to avoid or minimise the flood risk by not approving the extension to the beer garden which was associated with a likely increase in patron numbers.[116] While the Tribunal accepted that implementing an effective FRMP can reduce risk for the existing development, and may be the only economically viable option, it also explained why in the Tribunal's view, it was not an appropriate response to the risk associated with the proposal.[117]

109 The Tribunal did not, therefore, accept a premise of the AVC argument - that there was a meaningful benefit to granting the Amendment Application, in order to impose a condition for a FRMP. AVC's ground of appeal can be regarded for these reasons as being, in substance, a complaint as to how the Tribunal considered and determined the argument. It is not established that the Tribunal failed to consider the submissions put to it.

The evidence was not made available to the Tribunal to make the comparison AVC alleges was required to be made

110 Even if, contrary to my finding as to the submissions actually made by AVC, AVC had submitted that the Tribunal was required to compare the risks arising in the two scenarios[118] (or as differently put in AVC's written reply submissions, to make a 'comparison of the risk mitigation measures available under the two scenarios'[119]) the Tribunal's decision was not affected by jurisdictional error. This is because AVC did not support such a submission with evidence or information which would have made it possible for the Tribunal to make that assessment.

111 There was no evidence given before the Tribunal about whether AVC intended to apply to amend its liquor licence to increase patron numbers if the Amendment Application was granted or if it was not granted, nor what any increase in patron numbers would be in either case.[120] Nor was there evidence or any submission as to whether AVC would, if the Amendment Application was not approved but it applied successfully to increase numbers in any event, voluntarily adopt a FRMP or other risk management strategy of some kind.[121]

112 AVC submitted that this ground of review could be made out where the relevant submission was raised by submission only, and did not require evidence in support of it, both because s 98 does not require the Tribunal to comply with the rules of evidence,[122] and because the ground of review is such that a substantial submission can be put purely by submission.

113 This submission is difficult to reconcile with the way in which the Tribunal's error of law was described in the Notice of Appeal. The particulars to ground 1 refer to the Tribunal's failure, after the argument was put, to:

... consider the potential for the intensification of use if the amendment application were refused and the potential risk associated with such an intensification if it occurred and what effect that would have on the population at risk and the level of risk to which that population was exposed and how that might compare to the risk if the amendment was granted.[123]

114 This involves an assertion that the Tribunal was obliged to consider five distinct matters in response to the risk comparison argument that AVC contends was put:

(a) the potential for intensification of use if the Amendment Application were refused;

(b) the potential risk associated with such an intensification if it occurred;

(c) what effect that would have on the population at risk;

(d) the level of risk to which that population was exposed; and

(e) how the risk referred to at (b)-(d) might compare to the risk if the amendment was granted.

115 AVC did not provide evidence or material directed to these five issues. It put on no evidence as to whether AVC intended to intensify use, by increase in patron numbers or otherwise, if the Amendment Application was not granted. It did not put on evidence as to the nature of the risk which would apply if it did proceed to intensify use by increasing patron numbers, nor of the effect on the population at risk. It did not, for example, provide evidence or make submissions as to whether there was any existing plan in place to manage flood risk and the potential effect on patrons. Not having provided any evidence as to the likely number of patrons on site in this 'uncontrolled intensification' scenario, it also did not provide any other material which would have enabled the Tribunal to assess the 'level of risk' to which that population was exposed. AVC accepted that it did not put any position to the Tribunal as to whether it had existing any flood risk management plan or other flood risk management measures, or would voluntarily adopt such a plan or measures in the event of authorisation by the Liquor Control Commission of an increase in patron numbers.[124]

116 The only specific material identified as having been put to the Tribunal which related to these issues (although not responding directly to the above five matters) was that the Tavern's current liquor licence allowed for maximum patron numbers of 764.[125] AVC also made submissions that liquor licensing was largely a question of physical capacity; and that based on the Building Code of Australia and the physical area of the development, the site had a theoretical maximum occupancy of 1700 people.[126]

117 In these circumstances, although the Tribunal had information before it which enabled it to consider the risks to the population on site if the amendment was granted, it had no material which would have enabled it to make a meaningful comparison with the situation if the amendment was not granted but AVC successfully sought to increase patron numbers.

118 Taking the relevant submission as characterised on appeal, it called on the Tribunal to consider both the 'uncontrolled intensification' scenario and the 'controlled intensification' scenario. There was, however, no material provided to the Tribunal that enabled any meaningful comparison between the risks arising in the scenarios other than to conclude that if the Amendment Application was granted a FRMP would be required as a regulatory control; and in the other scenario, there was no enforceable requirement for a FRMP for the existing premises accommodating patron numbers which may remain the same or potentially increase. AVC submitted before me that it was important to take into account that the effect of the enforceable requirement for the FRMP as a permit condition was that it would run with the land.[127] It was not said that this was a submission also specifically made to the Tribunal.[128] In any event, it is a submission which would go no further than that if the beer garden extension was granted, there would be a requirement on any operator of the Tavern to have the FRMP in place, and there was no such enforceable requirement for the existing premises even if patron numbers increased.

119 The Tribunal did consider the argument that the FRMP would involve some benefit, in that it accepted that it would mitigate flood risk. This was a consideration of the substantial argument put to it. It did not go on to formally compare the scenarios of 'controlled intensification', that is the risk controls in place if the Amendment Application was granted (ie the FRMP) and 'uncontrolled intensification', being the situation if the application was not granted but AVC nevertheless successfully applied to increase patron numbers by an amendment to its liquor licence. The Tribunal was not in my view clearly called upon by any clearly articulated submission to make that comparison. Importantly, the material before it would also not have enabled it to make such a comparison in any but the most abstract and theoretical of ways. Such a comparison would have been of little, if any, utility, in circumstances where the Tribunal had no material on which to make any meaningful comparative assessment.

120 It was submitted that the Tribunal was, in such a situation, required nevertheless to refer to the submissions and observe that there was 'insufficient evidence to support them' or to note that it hears the submissions but gives them little weight.[129] I do not agree that the principles as to failure to consider a substantial clearly articulated argument or, as discussed below, as to adequate reasons, require such an observation to be made in respect of an argument that is not clearly articulated and has insufficient supporting material to enable it to be meaningfully assessed. The principles as to the obligations of a decision maker to consider a substantial and clearly articulated argument do not require the Tribunal to engage with an argument that is so lacking in specific supporting evidence or material that any conclusion it could make on the argument would not materially assist it to determine the issues before it, or to properly exercise its discretion.

121 It is also not possible to accept AVC's submission that the Tribunal was obliged to 'acknowledge' that 'the existing risk might be minimised rather than exacerbated by the development', and that this was a central argument advanced by AVC.[130] I consider that not only was this argument not squarely put to the Tribunal (as opposed to a submission that the grant of the Amendment Application would carry some benefit in requiring the FRMP which would otherwise not be required) but there was no material on which the Tribunal could meaningfully accept or acknowledge that risk would be 'minimised' by the grant of the application. There was no material or submission to the effect that no FRMP or other flood risk plan would be in place to manage the known flood risk if the Amendment Application was not granted. There was no other material or submission which would enable a conclusion that, or even any informed consideration of the prospect that, flood risk would be minimised by granting the application to extend the beer garden, because there would also be a FRMP in place. While it might be accepted that it was implicit in AVC's submissions that what was relevant was the risk of not having an enforceable FRMP in place, this was not articulated or so clearly submitted that it called for a separate consideration by the Tribunal. Further, in circumstances where the Tribunal had concluded that the proposal would significantly increase the population at risk,[131] and that the FRMP was not an appropriate response to the degree of risk,[132] there is no basis on which it was required to acknowledge that the proposal would minimise risk. Such a submission is ultimately a complaint as to the merits of how the Tribunal determined the issue, and not as to an error of law.

122 For all of the above reasons, I have concluded that Ground 1 has no real prospect of success and leave to appeal must be refused.

123 In its Notice of Appeal, AVC identified its second proposed ground of appeal as follows:[133]

The Tribunal committed jurisdictional error by failing to give adequate reasons.

Particulars

1. Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 requires the Tribunal to give reasons for its decision which must include findings on any material question of fact.
2. The Applicant refers to and repeated the particulars to ground 1 above.
3. In the circumstances, the question of the potential increase in risk caused by uncontrolled intensification of the land use (i.e., without any requirement for a FRMP) was a material question of fact.
4. Nothing in the Tribunal's reasons makes any findings on the potential increase in risk associated with uncontrolled intensification.

124 AVC contends that the Tribunal erred by failing to give adequate reasons because:[134]

(a) its Reasons 'do not disclose any engagement with the Applicant's submissions regarding the potential for uncontrolled intensification and that this failure was material'; and

(b) '[g]iven the centrality of the issue of flood risk to the decision and the centrality of the Applicant's argument to its case, any failure to explain how the Tribunal concluded that the argument should be rejected is significant and constitutes jurisdictional error'.

125 AVC referred to Victorian WorkCover Authority v Jamali[135] for the proposition that if it is not possible to tell from the reasons how or why a court has dealt with an argument made before it, this indicates that there has been a constructive failure to exercise jurisdiction. It was submitted that if it is accepted that the risk comparison argument was made and was a substantial one, then the reasons do not address it.[136]

The Respondent's arguments in support of ground 2

126 Melbourne Water submitted that ground 2 rises or falls with the first ground, because the 'potential increase in risk caused by uncontrolled intensification of land use' was neither the subject of a substantial submission to that effect, nor was it a material question of fact. It submitted that the Tribunal was entitled to address the potential for patron numbers to be increased by finding that whatever increase may occur without amendment of the permit, an increase would likely be greater with the amendment than without; and that the FRMP was not an acceptable way to manage the increased number of people at risk in the event of a flood.[137]

127 The Council referred to the observation of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:[138]

[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

128 It submitted that the 'two future scenarios' argument was not a material question of fact in respect of which s 117 of the VCAT Act requires reasons to be given.[139]

129 Proposed ground 2, being closely related to and to some degree dependent on the arguments in support of ground 1 as to the substantial and clearly articulated argument said to have been made, has no real prospects of success for substantially the same reasons as identified with respect to ground 1.

130 It is uncontroversial that the Tribunal has, pursuant to s 117 of the VCAT Act, an obligation to give reasons for its final decisions. Section 117(5) provides:

If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.

131 It was said by AVC that a material question of fact as to which the Tribunal was required to make a finding was 'the question of the potential increase in risk caused by uncontrolled intensification of the land use (i.e., without any requirement for a FRMP)'.[140]

132 Nothing in the application before the Tribunal, which was for an extension to an existing development, required it to make a finding on the hypothetical situation arising if the application to amend its permit was not granted. This was not a material question of fact in the context of the Amendment Application. The Tribunal was required to consider the proposal the subject of that application, and, amongst the other matters raised by it, whether the proposal the subject of the application responded appropriately to the requirements of the Planning Scheme, in particular, the considerations arising because of flood hazard.

133 The question of 'the potential increase in risk caused by uncontrolled intensification of the land use' without a FRMP in place was not a matter that the Tribunal was required to decide. For the reasons discussed in relation to ground 1, that question was not, because of the nature of the submissions put to the Tribunal, rendered a material matter on which the Tribunal was required to make a finding of fact, as it was not clearly articulated as a substantial submission on the application. However, even if it had been, AVC had not put the Tribunal in a position where it was possible to make any findings of fact on the issue. As observed above, AVC had not put the necessary evidence or material before the Tribunal which called for, or would have enabled the Tribunal properly to find:

(a) that there would, if the Amendment Application was not granted, be any 'intensification of use' in the sense of an increase to patron numbers, as AVC did not submit that it would or would not do so, and left this uncertain;

(b) what the size of any increase in patron numbers would be, as AVC did not provide that information;

(c) what the nature of the risk arising from any increase in patron numbers would be, if the Amendment Application were not granted and the beer garden was not extended, as that was not the subject of any expert or other evidence.

134 Finally, even had it been appropriate for the Tribunal to speculate as to such matters, it was not in any position to find that any risk of intensification would be 'uncontrolled', in the sense of not being controlled by a FRMP or other measures. It might have been accepted that a FRMP would not be required as a condition of planning permission (or as a condition of any change to the liquor licence). However, it would have been inappropriate for the Tribunal to assume that AVC would not, in response to increased numbers, voluntarily adopt a FRMP, or other appropriate risk management measures as a prudent response to intensified use. In short, the Tribunal was in no position to make any finding of fact as to risks arising if the Amendment Application were not granted, but patron numbers were increased.

135 As to the argument that the reasons did not disclose how the Tribunal had dealt with the arguments before it, I do not accept that argument for the reasons identified above at [105]-[109].

136 There being no real prospect of success of ground 2, leave to appeal on this ground will also be refused.

Ground 3: Findings for which there was no evidence or which were otherwise irrational

137 By the third ground of appeal,[141] AVC contends that the Tribunal committed jurisdictional error by making findings for which there was no evidence, or which were otherwise irrational. The ground is relevantly particularised as follows:

1. The Tribunal found that there was a real risk that a population of 1,420 persons attending the Hotel could be exposed to a material flood risk as a result of:

i. Weather predictions being substantially wrong; and

1. Flood warning systems and gauges along the Maribyrnong River system failing; and

iii. Flood modelling for the River being inaccurate; and

iv Flood warning communications not being made; and

v Flood warning communications not being received; and

vi Flood warning communications being inaccurate; and

1. Flood warning communications being received [sic] in a timely fashion; and

2. Patrons of the Hotel behaving irresponsibly if required to evacuate.

3. There was no evidence before the Tribunal to the effect that items (i)-(vi) [sic] had any real prospect of occurring. In particular, the Second Respondent did not submit that there was any real prospect of these things occurring.

4. The evidence of Mr Swan was that, if flood warnings were issued in a timely fashion, a FRMP could adequately manage the risk to the users of the subject land by closing the venue prior to flooding occurring and that the land had been safely evacuated in a similar fashion to that proposed under the propose[d] FRMP previously.

Accordingly, it was irrational for the Tribunal to approach the assessment of the risk to Hotel patrons if the amendment was granted on the basis there was a real risk that the entire supporting infrastructure of the Victorian flood management system would systematically fail.

Principles relating to findings on no evidence or which are irrational

139 A tribunal can commit an error of law if it makes a finding with no evidence to support it, if that finding was critical to the tribunal's ultimate conclusion.[142]

140 In the case of the Tribunal, a ground of error of law based on there being 'no evidence' must be understood in the context of the specific position of the Tribunal under the VCAT Act. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit. Section 98(1) of the VCAT Act provides, relevantly, that the Tribunal:

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

...

141 While the Tribunal must at all times act fairly and afford procedural fairness, it is not, therefore, required to base its conclusions on evidence which is formally admissible, and has some latitude as to how it may inform itself. It may in my view draw conclusions on matters which are notorious or generally known, without a formal evidentiary basis, at least to the same extent that a court may take judicial notice.[143]

142 For these reasons, the 'no evidence' ground of review is only narrowly available with respect to Tribunal decisions.[144]

143 AVC's argument on this ground identifies the Tribunal's findings as being based on no evidence or 'otherwise irrational'.

144 The principles as to when a decision will be affected by jurisdictional error by reason of it being unreasonable or irrational are discussed by the High Court in Minister for Immigration and Citizenship v Li.[145]

Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[146]

146 The primary power of a responsible authority with respect to the grant or amendment of a permit[147] and the Tribunal's powers under s 85 of the PE Act on review of a responsible authority's decision or failure to make a decision, involve a significant degree of discretion. That discretion is to be exercised by reference to the statutory and regulatory scheme. In the case of decisions of this nature, involving discretion on the part of the decision maker conditioned on a state of satisfaction or reasonable belief, such a decision will not be legally irrational if, despite it being open to form a range of different opinions, a logical or rational decision maker could reach the decision on the material before the decision maker.[148] The decision may be irrational if it is not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn.[149] The critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.[150]

147 The finding of the Tribunal on which AVC bases this ground arose in the context of the Tribunal addressing the adequacy and appropriateness of the FRMP in addressing the flood risk. The Tribunal observed first that the strategy in the Planning Scheme was to 'avoid intensifying the impact of flooding through inappropriately located use and development', and that one of the purposes of the LSIO is 'to minimise the potential flood risk to life, health and safety associated with development'.[151] It focussed on the element of the FRMP relating to relocation (or evacuation) of people from the Tavern as a response to a river flood event, which was contended by AVC to completely mitigate the risks in the event of a flood as there would be no people on the Land at the time of flooding.[152] In this context, the Tribunal observed:

The mitigation measure of evacuation relies on a series of events going to plan. It relies on weather predictions in the upstream catchment being accurate. It relies on the flood warning system and gauges along the River operating effectively. It relies on the existing flood models for the River being accurate. It relies on flood warning communication going out to the population at risk. It relies on those flood warning communications being received (and received in a timely manner) by the population at risk. It relies on the communicated flood warning times being accurate. It relies on there being adequate time to safely evacuate the population at risk. Perhaps most challenging, it relies on the population at risk behaving sensibly and timely in the face of a flood emergency. Finally, it relies on emergency service volunteers putting themselves at risk to rescue people if the evacuation does not go to plan.[153]

148 The observation as to the 'challenging' element that evacuation relies on the population at risk behaving sensibly was further explained by the Tribunal in the following paragraph:

In this case, the use of the subject land as a hotel makes the population at risk potentially more vulnerable as it relies on potentially inebriated people (in group settings and enjoying celebrations, dining, music and dancing) to behave sensibly and timely in the face of a flood emergency. They may need additional support to evacuate, not just from the hotel and carpark, but from the surrounding area which is all subject to high flood hazard.[154]

149 The Tribunal concluded, on the issue of evacuation:

There are aspects of the FRMP that are currently unresolved. We recognise that the FRMP would have to be finalised and be approved by Melbourne Water and the Council before the development starts, but the idea of evacuating up to 1,420 people, many trying to flee from the car park, is too risky. We do not support increasing the population at risk by 656 people in this case. Whilst there may be more than 8 hours notice to evacuate, a lot could go wrong and the actual time in a serious event could be fewer hours.[155]

150 AVC focussed in this ground on the Tribunal's conclusion that the proposed FRMP which may involve evacuation of up to 1,420 people (if the Amendment was granted to permit the extension) was 'too risky' because 'a lot could go wrong' and although there may be more than 8 hours' notice to evacuate, it may be fewer hours in a serious event. AVC identified the rationale for this conclusion to be the Tribunal's analysis of the various elements on which the mitigation measure of evacuation relied, and contended that this analysis was flawed because:[156]

(a) it involved a view that the proposal must be capable of surviving catastrophic events, which had no foundation in the PE Act nor the Maribyrnong Planning Scheme; and

(b) the approach involved a hypothesis that the government emergency management measures would 'systematically fail', which was irrational, and an acceptance of a real risk of 'catastrophic system failure', for which there was no evidence.

151 It was also submitted that elements of the flood risk management system involved government agencies performing statutory roles. A State Emergency Management Plan (SEMP) had been approved which set out the roles of State and Commonwealth agencies. These include the function of the Commonwealth Bureau of Meteorology, which under s 6(1)(c) of the Meteorology Act 1955 (Cth) issues warnings about weather conditions (including conditions likely to give rise to floods), and Melbourne Water's responsibility for flood warning services, arising from its obligation under s 202(2)(f) of the Water Act 1989 to provide advice about flooding to communities. The SEMP also provides that the State Emergency Services is responsible for communicating warnings to the public.[157] It was contended that:

The proper approach was for the Tribunal to assume that the various statutory agencies required to act under the SEMP would do so, and would do so competently and to require the Applicant only to manage those elements of the risk that it could reasonably be expected to control.

It was irrational (or unreasonable) in the legal sense for the Tribunal to require an applicant for permit under the LSIO to demonstrate as a precondition to the grant of a permit either that the State's emergency management system would function as intended, or alternatively, to demonstrate that even if it did not, the Hotel would be safe.

152 AVC submitted that it was a fundamental aspect of the Tribunal's reasoning that a lot could go wrong, 'being all of those things' and that the Council and Melbourne Water had not submitted that 'there was a real risk of everything going wrong at once. What [AVC has]... described in submissions as catastrophic failure of the state's emergency management systems.' It was contended that there was no evidence to support the findings and that it was just speculation without foundation.[158]

153 The Notice of Appeal stated that the 'FRMP could adequately manage the risk to the users of the subject land by closing the venue prior to flooding occurring'.[159] AVC referred in submissions to the evidence of Mr Swan, the expert hydrologist, to the effect that there were between 8-12 hours between the time that the warning would be received and the time that evacuation would need to have occurred, and that his evidence was that by the time flood waters reached the Tavern and created a risk, 'the pub would be closed so there would be no one there'.[160] It was submitted that in these circumstances, it was wrong to assume that there would be people in the beer garden at the time of any flooding which would lead to the need for an urgent evacuation.[161]

154 The respondents contended that this ground of review proceeded from a false premise, in that the Tribunal did not make the findings ascribed to it by AVC.

155 Melbourne Water contended that the ground mischaracterised the Tribunal's reasons, which did not involve a finding that there was a real risk of all the matters identified in the particulars failing, but rather an explanation of why it was preferable to minimise rather than mitigate risk. Melbourne Water submitted:[162]

One of the reasons for that preference was that mitigation by way of evacuation relies on many things going right, whereas minimisation means that fewer people are at risk in the first place.

156 The Council noted that the Tribunal did not at any point find that there was a risk of catastrophic failure of the State's emergency management system, and that the finding, properly characterised, was that 'the mitigation measures relied upon in the FRMP were not effective to sufficiently manage the level of flood risk posed so as to justify granting the Amendment Application, which was open on the evidence.[163]

The Tribunal's observations were not findings as characterised by AVC

157 The paragraph of the Tribunal Reasons on which AVC focusses, [187], was not, as contended by AVC, a finding that each of the identified failings would occur, or might cumulatively occur. It was not a finding that there would be a 'catastrophic' or systematic failure of the emergency management framework.[164] Nor was it even a hypothesis to that effect. It was an observation that the proposal to mitigate the risk by an evacuation plan depended on a number of factors occurring or operating as anticipated. AVC's ground of appeal contended that the Tribunal found that each of the matters would cumulatively arise, which is reflected not only by the use of the word 'and' after each item of the list in the particulars, but also the statement in the Notice of Appeal that the Tribunal based its assessment on the 'real risk that the entire supporting infrastructure of the Victorian flood management system would systematically fail'.[165] It is clear that the Tribunal did not make a finding that there was such a risk. It observed that the FRMP relevantly depended on a number of elements functioning as planned, and later that 'a lot could go wrong' with the result that the actual period of notice to evacuate could, in a serious event, be fewer than the 8 hours anticipated in the FRMP.[166] This was not a finding that all elements could fail simultaneously nor that it would go wrong, but a conclusion on the part of the Tribunal that one or more elements may not function as anticipated, which 'could' reduce the response time available for an evacuation process.

158 More specifically, the particulars assert that the Tribunal found that there was a real risk that the relevant population would be exposed to a material flood risk as a result of '[p]atrons of the Hotel behaving irresponsibly if required to evacuate'.[167] This is not an accurate characterisation of what the Tribunal found with respect to the behaviour of the patrons.

159 The Tribunal did not find that the patrons would behave irresponsibly, but that they would be a 'potentially more vulnerable' population given that they would be 'potentially inebriated'.[168] This was not said by the Tribunal in a negative way that suggested a characterisation of that population but was expressly noted to be on the basis that the patrons would be 'in group settings and enjoying celebrations, dining, music and dancing'. It was in that context that the Tribunal noted that the evacuation element of the FRMP would rely on that population behaving 'sensibly and timely in the face of a flood emergency', and noting that they may need 'additional support' to evacuate.[169]

160 This was not, read fairly, a finding that the patrons would behave irresponsibly. It was a finding that patrons at a licensed venue like the Tavern may be inebriated, and involved in celebrations or entertainment. They may not as a population all behave in the sensible and timely way that may be expected of another population (such as, it can fairly be inferred from the reasons, a population in a location where there was no expectation that they would be consuming alcohol).

161 When the Tribunal's observations at [187] are read in context, they are not, in my view, findings, or at least not findings of a kind, that called for specific evidence. They were rather a recognition of the elements of the system which were required to go to plan, in order to achieve the outcome intended by the FRMP.

162 While this is a substantial part of the answer to the argument that the Tribunal erred in law in making its conclusions in [187]-[190] because there was no evidence for them, it remains the case that the Tribunal is obliged to act fairly and on a proper foundation. It is appropriate to consider in more detail the basis of the observations, in the context also of the contention that the Tribunal made findings which were irrational.

The Tribunal's actual observations were not irrational, nor made without a proper basis

163 In approaching AVC's contentions that the Tribunal's findings or approach was without evidence, or irrational, it is important first to refer to the context in which the relevant observations were made.

164 The Tribunal's discussion of the elements of the evacuation strategy and the potential for something to go wrong occurred in the context of giving reasons for the conclusion that the proposal, including the FRMP, does not respond appropriately to the degree of risk.[170] The Tribunal first noted that Mr Swan, the hydrology expert, referred to the FRMP and the existing formal flood warning system as 'non-structural flood mitigation measures'. The Tribunal then observed, referring to the Australian Institute for Disaster Resilience Handbook 7: Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia, that:[171]

The difficulty with relying on evacuation in this case is that mitigation measures such as evacuation are low in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).

165 The Tribunal noted that this was relevantly reflected in the Planning Scheme and the LSIO. It observed that the Planning Scheme strategy was to 'avoid intensifying the impact of flooding through inappropriately located use and development' and that one of the LSIO's purposes was 'to minimise the potential flood risk to life, health and safety associated with development'.[172]

166 The Tribunals' observation at [187] that '[t]he mitigation measure of evacuation relies on a series of events going to plan' was in this context a relevant observation, in that it formed an element of the Tribunal's reasoning as to mitigation measures such as evacuation in the event of flood being a less appropriate response to flood risk than that of managing the risk by land use planning and preventing intensification of existing risk.[173] It was also a rational one, which was not expressed as a finding in the way characterised by AVC, but a recognition of how a mitigation and emergency response strategy such as the evacuation element of the FRMP works, and why it may be a less appropriate response than avoidance or minimisation measures.

167 To acknowledge the possibility that some element of the aspects of the FRMP may not operate as intended does not entail any conclusion that AVC is responsible for the roles of government agencies,[174] nor that the agencies will not perform their statutory roles. It can be accepted that the Tribunal should not assume that the Commonwealth Bureau of Meteorology will fail to discharge its statutory obligations to issue warnings about weather conditions likely to give rise to floods or that Melbourne Water will fail to provide advice about flooding to communities as provided for by the Water Act.[175] However, there is no indication that it did so.

168 The authorities on which AVC relied to contend that it was not open to the Tribunal to assume or hypothesise that the government warnings might not be made or may not be accurate as to timing, were authorities to the effect that courts should assume that government entities will act in accordance with their legal obligations.[176] These authorities, although arising in quite different contexts, can be accepted as also requiring the Tribunal to assume that government parties with statutory roles in an emergency management framework will perform those roles. However there is nothing in the Tribunal's reasons which suggest that it concluded that the government agencies will not do so. The possibility that the Tribunal raises is not that the agencies would fail to perform their roles, but that something may 'go wrong'[177] as they perform them. There may be something that affects the accuracy of weather predictions, even if made with due care. There may be something that occurs to affect 'the flood warning communication going out to the population at risk', or which affects the accuracy of the communicated flood warning times which arises not because of a failure to perform a statutory role, but of some failure beyond that government actor's control.[178]

169 It is consistent with human experience to recognise that performance of a role in the context of an emergency with skill and due care will not in every case ensure successful performance, or performance which achieves the anticipated outcome. That is particularly so where the role involves interpretation of data or some element of modelling or prediction as to future conditions. I am not persuaded that the Tribunal acted irrationally or without proper basis in acknowledging that possibility.

170 Further, other aspects of the evacuation process identified by the Tribunal depended not on the performance by government entities of their statutory roles, but on the conduct of members of the public. There is no basis on which it must be assumed that all such people would respond immediately to instructions, or behave entirely as expected.

171 As to the specific concern, which was emphasised by the Tribunal as 'perhaps most challenging' of the elements of the evacuation system, that patrons may be inebriated and require additional support to evacuate,[179] this was a rational observation. The facts that the patrons of a licensed venue may include inebriated patrons; and that inebriated persons may not act sensibly or with the same timeliness of non-inebriated persons, are sufficiently based in common sense or universal experience that they would not, in my view, require evidence. These matters would, in my view, fall comfortably within the scope of facts that are so generally known or notorious that they are matters of which a court may take judicial notice, and thus that the Tribunal could take into account in informing itself as it sees fit.[180]

172 However, even if that approach was wrong, and some evidence was required to support such an observation, the following material before the Tribunal contained information that supported the Tribunal's observation.

(a) The Council Delegate Report on the Amendment Application included information from Victoria Police as a result of the referral of the proposal to Victoria Police. That response included information from a local resident about intoxicated patrons and their behaviour, including causing damage to local property around the Tavern premises, and from police reports about 'heavily intoxicated' and 'mildly intoxicated' patrons and their involvement in poor behaviour at or when leaving the hotel, or in violent altercations.[181]

(b) The Statement of Grounds filed with the Tribunal on behalf of local residents referred to observing Tavern patrons to be 'rowdy and unpredictable', and having 'witnessed some very unwell patrons of the Anglers wandering our streets.'[182]

(c) Submissions and objections provided to the Council by residents, which referred to 'drunken hoon behaviour' on local streets, and other similar references to the behaviour of drunk patrons, including that they 'take a great deal of time to leave the area'.[183]

173 While this material may relate to particular instances rather than, necessarily, a wider pattern of patrons being intoxicated or behaving poorly, it was a rational basis for the Tribunal's measured observation that 'potentially inebriated' patrons are 'vulnerable' and 'may need additional support to evacuate'.[184]

174 For completeness it is appropriate to address the argument that in light of the specific contention in the Notice of Appeal, and in submissions based on the evidence of the hydrologist Mr Swan to the effect that if timely flood warnings were issued, a FRMP could adequately manage the risk to users of the Land by closing the venue prior to flooding occurring, so that there may be no people on the Land by the time of any flooding so there may not be a need for an urgent evacuation.[185]

175 Mr Swan concluded in his report that:[186]

(a) it is expected that the waters begin to rise at the Maribyrnong rain gauge between 12-18 hours after the start of prolonged heavy rain fall;

(b) in a large flood event, it is expected that:

(i) the minor flood level will occur six hours after the start of the rise of the river;

(ii) the moderate flood level would be exceeded an hour after the minor flood level, with the major flood level occurring an hour later;

(c) Victorian State Emergency Services and the Council are expected to receive 8-12 hours of warning of a flood peak occurring at the Maribyrnong gauge, measured from the Keilor gauge;

(d) in a major flood the first building impacted in Maribyrnong is the Tavern.

176 Mr Swan observed that as the Tavern is a pub (unlike residential land) there is no need for anyone to visit it at a time of flood, and that the FRMP requirement that the venue be closed at the issuance of a minor flood warning (which typically occurs between 8-12 hours before the flood event) would mean patrons 'will be removed from the venue well before flooding occurs at the site'.[187]

177 It is not apparent from Mr Swan's report whether, and if so how, these estimates, and in particular, the estimate of a total of eight hours between the river starting to rise and a major flood level occurring, interacted with the times at which patrons could be at the Tavern and the opinion that 'there will no people on the site at the time of flooding'.[188] The evidence was that the Tavern's licence permitted trading hours of up to 18 hours on certain days, from 7 am until 1 am.[189] It was not apparent whether Mr Swan's opinion was that the Tavern would be closed after flood warnings to prevent people being on the Land, or that evacuation measures would be effective to evacuate any patrons already on the Land.

178 Further, evidence from the MSFEP which was referred to in the submissions of Melbourne Water to the Tribunal indicated potentially shorter travel times of floodwaters.[190]

179 Notwithstanding Mr Swan's evidence, the Tribunal concluded that '[w]hilst there may be more than 8 hours' notice to evacuate, a lot could go wrong and the actual time in a serious event could be fewer hours'.[191] There was nothing irrational in this conclusion. The Tribunal was not obliged to accept the conclusions of Mr Swan, nor was it irrational for the Tribunal to take it into account, but nevertheless reach this conclusion.

180 In conclusion, I find that it was not irrational, nor without proper basis, for the Tribunal to acknowledge that a flood management risk plan which relied to a material degree on evacuating a significant number of people from the Tavern and the Land within a limited time did depend on the proposed arrangements 'going to plan'.[192] It was open to the Tribunal to acknowledge the possibility that elements of the plan could go wrong, and to consider that as relevant to its conclusion that a strategy aimed at minimising the potential risk to life, health and safety from flooding by avoiding intensification of the risk was a more appropriate response than one aimed at mitigating the risk. To the extent that the conclusions as to the nature of the strategy and its operation involved findings or inferences, they were logically connected to the material before the Tribunal, and to the issue of whether the proposal was acceptable insofar as it responded to flood risk.

181 I consider that ground 3, being based on a mischaracterisation of the Tribunal's conclusions, has no real prospects of success and would not grant leave to appeal.

182 The application for leave to appeal is refused. I will hear the parties on the question of costs.

[1] Application to Amend Planning Permit MPS/2020/528. Affidavit of Scott Blake Edwards affirmed 14 September 2023 (First Edwards Affidavit), [6].

[2] Maribyrnong Planning Scheme cl 44.04.

[3] See PE Act s 55(4); Maribyrnong Planning Scheme cl 66.03.

[4] First Edwards Affidavit, [14], Exhibit 301-302 (Letter from Melbourne Water to Maribyrnong City Council, 8 September 2022).

[6] AVC Operations Pty Ltd v Maribyrnong CC [2023] VCAT 925 (Tribunal Reasons), [22], [27]. See, as to existing use rights, PE Act s 6(3); Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429, [10]-[11], [20]-[29] (Garde J). The Maribyrnong Planning Scheme specifically recognises existing use rights by clause 63.

[7] Permit TP710/2014. Affidavit of Scott Blake Edwards affirmed 21 December 2023 (Second Edwards Affidavit), [3].

[8] First Edwards Affidavit, Exhibit, 43 and 56.

[9] First Edwards Affidavit, Exhibit, 302.

[10] First Edwards Affidavit, Exhibit, 302.

[11] First Edwards Affidavit, Exhibit, 303.

[12] First Edwards Affidavit, Exhibit, 347.

[13] First Edwards Affidavit, Exhibit, 1018 (Email from the Council to the Tribunal dated 1 December 2022).

[14] [2023] VCAT 376.

[16] Clause 52.27 provides that permission is required to use land to sell or consume liquor if, relevantly, the 'number of patrons allowed under a licence is to be increased' or 'if the area that liquor is allowed to be consumed or supplied under a licence is to be increased'.

[19] See Greenwells Wollert Pty Ltd v Head, Transport for Victoria [2023] VSC 271, [46] (McDonald J); _Roads Corporation v McCarth_y [2004] VSC 369, [36], [50] (Osborn J).

[22] Tribunal Reasons, [82], [156]-[157].

[25] Tribunal Reasons, [172], [184]-[186].

[26] Tribunal Reasons, [191]-[192], [200].

[27] Tribunal Reasons, [182], [195]-[203].

[29] Affidavit of Scott Edwards affirmed 21 May 2024 (Third Edwards Affidavit), [8], Exhibit, 4.

[30] Third Edwards Affidavit, [10], Exhibit, 6.

[31] Affidavit of Briana Janine Pudel (née Eastaugh) sworn 16 February 2024 (Pudel Affidavit).

[32] Affidavit of Jack Chiodo affirmed 15 February 2024 (Chiodo Affidavit).

[33] Affidavit of Emma Rhiannon Peppler affirmed 28 May 2024 (Peppler Affidavit); Affidavit of Rupert James Churchman Watters affirmed 28 May 2024 (Watters Affidavit). Mr Watters prepared the original Notice of Appeal and co-authored written submissions for AVC but ceased to be counsel after making this affidavit.

[36] Notice of Appeal, [12], Particulars at [b]. Submissions on Behalf of the Applicant filed 18 March 2024, [14].

[37] Kennedy v Shire of Campaspe [2015] VSCA 47, [12].

[39] Tribunal Reasons, [103]. No parties challenged the identification by the Tribunal of the aspects of the framework which were relevant to its decision.

[40] First Edwards Affidavit, Exhibit, 2654-2713 at 2684 (Guidelines)

[41] Notice of Appeal, [11], and Particulars at (e).

[42] Notice of Appeal, [11] Particulars at (b).

[43] Notice of Appeal, [11] Particulars at (d).

[44] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ) Hayne J agreeing at 1102 [95]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, 435-436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 600 [27] (Kiefel CJ, Keane, Gordon and Steward JJ), 627 [105] (Gleeson J); Victorian Workcover Authority v Jamali [2023] VSCA 240, [92] (Beach JA, J Forrest and Tsalamandris AJJA).

[45] For example, SZMTA, 435-436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ).

[46] Dranichnikov, 1092 [23] (Gummow and Callinan JJ), 1095-1096 [47]-[49] (Kirby J).

[47] Plaintiff M1/2021, 599 [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

[48] Plaintiff M1/2021, 598-599 [24]-[25] (Kiefel CJ, Keane, Gordon and Steward JJ).

[50] Plaintiff M1/2021, 599 [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

[51] Singh v Minister for Home Affairs (2019) 267 FCR 200, 208-209 [30]-[34]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177, 189 [12] (Kiefel CJ, Gageler, Gordon and Steward JJ), 212-213 [77] (Edelman J); Tickner v Chapman ([1995] FCAFC 1726; 1995) 57 FCR 451, 462 (Black CJ), see also 495-496 (Kiefel J) .

[52] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662, 672 [29] (Kiefel, Bell, Keane, Nettle and Gordon JJ), citing Gummow J in Khan (by her next friend Khan) v Minister for Immigration and Ethnic Affairs [1987] FCA 713, 11.

[53] Donohue v Westin [2022] VSC 37, [23] (Niall JA). See also the discussion of recent authority on the appropriate approach to a decision maker's evaluation and the risks of eliding arguments about failure to address substantial arguments with impermissible merits review by the NSW Supreme Court in Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604, [15] (Kirk JA; White and Mitchelmore JJA agreeing) and Secretary, Department of Education v Dawking [2024] NSWCA 4, [92] (Gleeson JA; Mitchelmore and Kirk JJA agreeing) and by Cavanough J in McPadden v Secretary to the Department of Justice and Community Safety [2023] VSC 669, [72]-[85].

[54] Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) citing Collector of Customs v Pozzolanic [1993] FCA 356; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).

[55] Notice of Appeal, [11] Particulars at (b).

[56] Submissions on Behalf of the Applicant filed 18 March 2024, [28] (emphasis added).

[57] First Edwards Affidavit, Exhibit, 1540-1541 (Submissions on Behalf of the Permit Applicant, 11 July 2023).

[58] First Edwards Affidavit, Exhibit, 1547 (Submissions on Behalf of the Permit Applicant, 11 July 2023 at [61]).

[59] Peppler Affidavit, [11], Exhibit ERP-1, 45, 47.

[60] Peppler Affidavit, [16], Exhibit ERP-1, 101-117 (emphasis in original).

[61] Peppler Affidavit, [15(d)], Exhibit ERP-1, 102 (emphasis in original).

[62] Watters Affidavit, [10], Exhibit RJCW-1, 3.

[66] Document MFI1, handed up and filed 14 August 2024.

[67] First Edwards Affidavit, Exhibit, 1540-1541 (Submissions on Behalf of the Permit Applicant, 11 July 2023, [36]).

[73] Tribunal Reasons, [143]-[145].

[75] Tribunal Reasons, [128]-[142]. It is unnecessary to consider these reasons in any detail as the findings on flood hazard were not the subject of any challenge.

[76] Tribunal Reasons, [128]-[132].

[78] City of Maribyrnong Storm and Flood Emergency Plan - A Complementary Plan of the Maribyrnong Municipal Emergency Plan (Version 5.2) (VICSES, December 2019).

[79] Tribunal Reasons, [135]-[140]; Figure 7 (Photo showing October 2022 flood event).

[81] Tribunal Reasons, [148]. The Tribunal acknowledged at [149] that the FRMP used the word relocate but stated that it regarded the word 'evacuate' to more accurately describe the temporary, urgent movement of people away from immediate or anticipated risk of flooding.

[83] Tribunal Reasons, [153]-[154].

[85] Tribunal Reasons, [172], [174].

[87] Tribunal Reasons, [183]-[186].

[89] Tribunal Reasons, [187]-[190].

[91] Tribunal Reasons, [195]-[201].

[93] Tribunal Reasons, [202]-[203].

[94] Submissions on Behalf of the Applicant filed 18 March 2024, [28]-[30]; Transcript 13/08/24 T38.16-24.

[95] Applicant's Further Submissions and Submissions in Reply filed 5 July 2024, [12], [13]; Transcript 13/08/24 T38.6-8.

[96] Submissions on Behalf of the Applicant filed 18 March 2024, [31], [35].

[97] Submissions on Behalf of the Applicant filed 18 March 2024, [28], [35(b)]; Applicant's Further Submissions and Submissions in Reply filed 5 July 2024, [17].

[98] Submissions on Behalf of the Applicant filed 18 March 2024, [37].

[99] Transcript 13/08/24 T52.09-T53.14.

[100] Applicant's Further Submissions and Submissions in Reply filed 5 July 2024, [18]-[19]; Transcript 13/08/24 T60.06-23.

[102] Melbourne Water's Written Outline of Submissions filed 22 April 2024, [3].

[104] Melbourne Water's Written Outline of Submissions filed 22 April 2024, [3(b)].

[105] Notice of Appeal, Particular (d) to [11].

[106] Transcript 13/08/24 T91.25-T92.7.

[108] Melbourne Water's Written Outline of Submissions filed 22 April 2024, [76]-[83].

[109] Transcript 13/08/24, T94.10-123; T98.05-13; T167.10-21.

[110] Outline of Submissions on Behalf of Maribyrnong City Council filed 29 April 2024, [11]-[18]; Transcript 14/08/24, T191.30-T192.10.

[111] Outline of Submissions on Behalf of Maribyrnong City Council filed 29 April 2024, [24]-[28].

[112] MFI 1; Applicant's Further Submissions and Submissions in Reply, [1], [12], [21].

[113] First Edwards Affidavit, Exhibit, 447. (Submissions on behalf of the Permit Applicant, 11 July 2023, [36]).

[114] Tribunal Reasons, [162]-[163].

[115] Tribunal Reasons, [20]-[26].

[116] Tribunal Reasons,[71]-[75], [77]-[78], [165].

[117] Tribunal Reasons, [164], [172], [182]-[200].

[118] See the Summary of the argument by AVC referred to at [63] above.

[119] Applicant's Further Submissions and Submissions in Reply filed 5 July 2024, [23] (emphasis added).

[120] Transcript 13/08/24 T35.31-T36.28.

[122] Transcript 13/08/24 T79.15-T80.01.

[123] Tribunal's Reasons, [164]-[165].

[125] First Edwards Affidavit, Exhibit, 1319 (Statement of Evidence, Darren Tardio, Acoustic consultant, [17]) and 1557 (Submission to Tribunal of Maribyrnong City Council at [30]); Tribunal Reasons, [61].

[126] Watters Affidavit [10]; Exhibit RJCW-1, p3 (par 7 of speaking notes).

[128] It was submitted that the submission that the Amendment Application would result in the nett benefit of the FRMP being required was advanced by that consideration but not that the specific consideration about it running with the land was raised.

[129] Transcript 13/08/2024 T66.06-14.

[130] Transcript 13/08/24 T65.22-29 (Emphasis added).

[131] Tribunal Reasons, [75]-[77]; [175].

[134] Submissions on behalf of the Applicant filed 18 March 2024, [39]-[40].

[135] [2023] VSCA 240.

[136] Transcript 13/08/24 T77.25-T79.13.

[137] Melbourne Water's Written Outline of Submissions filed 22 April 2024, [86]-[88].

[138] (1996) 185 CLR 259, 272.

[139] Outline of Submissions prepared on behalf of Maribyrnong City Council filed 29 April 2024, [31]-[33].

[140] Notice of Appeal, [12] Particulars at (c).

[141] Originally identified in the Notice of Appeal as Ground 4, but the original Ground 3 was no longer pursued.

[142] Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48, [46] (Warren CJ, Chernov JA and Bell AJA agreeing) citing S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA); He v Aloe & Co Pty Ltd (No 3) [2010] VSCA 158, [25] (Hansen AJA, Maxwell P and Bongiorno JA agreeing).

[143] See the observations of Ashley J in Turner (t/as Echuca Steam Tramway) v Horsfall [2002] VSC 195, [36]-[43].

[144] Myers at [46] (Warren CJ, Chernov JA and Bell AJA agreeing); Jetstar Airways Pty Ltd v Free [2008] VSC 539; (2008) 30 VAR 295, [141] (Cavanagh J).

[145] [2012] HCA 61; (2013) 249 CLR 332.

[146] [2012] HCA 61; (2013) 249 CLR 332, 366 [72].

[148] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649 [135] (Crennan and Bell JJ); Loielo v Giles [2020] VSC 722; (2020) 63 VR 1, 54-55 [197], [200] (Ginnane J).

[149] SZMDS, 650 [135] (Crennan and Bell JJ).

[150] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [38] (Gummow and Hayne JJ); SZMDS (2010) 240 CLR 611, 625 [40] (Gummow A-CJ and Kiefel J).

[151] Tribunal Reasons, [184]-[185].

[152] Tribunal Reasons, [148]-[149], [158].

[155] Tribunal Reasons, [190] (emphasis added).

[156] Submissions on behalf of the Applicant filed 18 March 2024, [46].

[157] Submissions on behalf of the Applicant, [46].

[159] Notice of Appeal, [14] Particulars at (d).

[162] Melbourne Water's Written Outline of Submissions filed 22 April 2024, [98].

[163] Outline of Submissions prepared on behalf of Maribyrnong City Council filed 29 April 2024, [37]-[38].

[164] Submissions on behalf of the Applicant, [46(b), (d)], [47].

[165] Notice of Appeal, [14]-[15] (emphasis added).

[166] Tribunal Reasons, [187], [190].

[167] Notice of Appeal, Ground 4, [14], Particulars at (b (viii)).

[172] Tribunal Reasons, [184]-[185] (emphasis added).

[173] Tribunal Reasons, [191]-[193].

[174] Cf the Submissions on Behalf of the Applicant at [46(f)].

[175] As contended by AVC: Submissions on behalf of the Applicant at [46(e)]; Transcript 13/08/24 T86.13-T87.27; T88.16-T89.29; 14/08/24 T236.25-T237.03.

[176] R v Benbrika [2009] VSC 21, [203] ('In exercising its sentencing function the Court must assume that the Executive will discharge its legal obligations to those whom it imprisons appropriately'); Veness v The Queen [2020] NTCCA 13, [56] (also in the context of sentencing and to similar effect as Benbrika); Walley v Western Australia (1996) 67 FCR 366, 382 ('There must have been a strong presumption that the government party would comply with its obligations under [s 31 of the Native Title Act 1993 (Cth)].').

[178] Taking the elements of the evacuation management process and planning identified by the Tribunal at [187] which would involve government agencies.

[180] See, for example, Turner (t/as Echuca Steam Tramway) v H & C Horsfall [2002] VSC 195, [42] (Ashley J). For examples of judicial notice being taken of the effect of alcohol in different contexts, see Magann v Cucinotta (1988) 6 MVR 440, 442 (O'Bryan J, Supreme Court of Victoria) (likely effect of high blood alcohol on a driver's capacity to maintain control of a vehicle to react to an emergency and to keep a proper lookout); R v Hunt [1980] RTR 29 (Bridge LJ) (judicial notice of intoxication with alcohol causing an impairment of the ability to drive), cited in Munro v Tooheys Ltd [1991] FCA 159; (1991) 21 IPR 268, 286 (Beaumont J).

[181] First Edwards Affidavit, Exhibit 1238-1241.

[182] First Edwards Affidavit, Exhibit, 370, 414.

[183] First Edwards Affidavit, Exhibit, 306, 308, 314, 318, 321, 336-338, 345-346.

[185] Notice of Appeal, [14(d)]; Transcript 13/08/2024 T84.21-28; 14/08/2024 T237.28-T238.25.

[186] First Edwards Affidavit, Exhibit, 390, 397 (Expert Evidence of Robert Campbell Swan, 9, 16).

[187] First Edwards Affidavit, Exhibit, 397 (Expert Evidence of Robert Campbell Swan, 16).

[188] First Edwards Affidavit, Exhibit, 400 (Expert Evidence of Robert Campbell Swan, 19).

[189] First Edwards Affidavit, Exhibit, 1558 (Submissions on behalf of the Responsible Authority (Council), [30.3]-[30.4]).

[190] First Edwards Affidavit, Exhibit, 1611 (Submissions on behalf of Melbourne Water, [66]-[67]).

[191] Tribunal Reasons, [190] (emphasis added).