Gulline G & Ors v Yarriambiack SC & Ors [2001] VCAT 2148

Mr S Guerra, Solicitor, appeared for the Respondent/Permit Applicant.

Mr T McCabe of Brown & Proudfoot, Solicitors, appeared for the Appellant/Objectors.

Ms E Riethmuller, appeared for the Wimmera Catchment Management Authority.

Mr R Neilson appeared for the Horsham Rural City Council.

Application under S.82 of the Planning and Environment Act 1987 (PE Act)

Removal of bank across Yarriambiack Creek and two 1050mm (3ft 6in.) diameter pipes.

1. The audit of structures in the floodway of the Yarriambiack Creek by the Wimmera Catchment Management Authority has not been completed.

2. The flood study, currently being undertaken by the Wimmera Catchment Management Authority, of the Wimmera River between Glenorchy and the Horsham area has not been completed.

3. Council believes that the audit and study should be allowed to be completed prior to the determination of the above Planning Permit Application as the results will be very relevant to the works requested to be approved.

4. The removal of the embankment and the two pipes in question has the potential to cause flooding and property damage in the Longerenong area, Horsham area, Horsham City itself, and other downstream areas of both the Wimmera River and the Yarriambiack Creek.

5. The infrastructure (culverts, bridges, roads etc.) provided by Council in the Longerenong area will not be adequate to cater for increased flood flows resulting from the removal of the bank and pipes.

6. There has not been a study undertaken on the effects on flood flows resulting from the removal of the bank and pipes.

1. This was a Directions hearing called to consider the future course of this review. The subject structure is on land controlled by the Department of Natural Resources and Energy (DNRE).

2. At the outset, Mr Andrews referred to Section 36.03-3 of the Planning Scheme which provides:-

An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manger, indicating that the public land manager consents generally or conditionally either:

* To the application for permit being made and to the proposed use or development.

3. He said however that the Responsible Authority had not been aware of this provision at the time of consideration of the application.

4. On becoming aware of the provision however, he wrote to DNRE on the 21 September 2001 and said (in part):-

Council has been advised that the application for a planning permit in this matter may be invalid as it was not signed by the landowner of the site as required by Clause 36.03-3 of the Yarriambiack Planning Scheme.

The applicant had signed the application stating he has informed the landowner of the application in accordance with Section 48 of the Planning and Environment Act.

As the landowner or manager I request that you give written consent to the lodging of this application. In this way this technical matter will be overcome and the matter may well proceed to a mention hearing at VCAT.

5. On 28 September 2001, DNRE gave the following response:-

The Department as the land manager has considered Council's request and advises as per previous correspondence to you of 5 July 2001 that the proposal should not be allowed to proceed until its need is demonstrated in a comprehensive flood study which determines the effects of the embankments removal on flood levels downstream and in other flood channels.

The Department reiterates that it is committed to the implementation of the Yarriambiack Creek Management Plan which stipulates under action 4.6 that an investigation needs to be undertaken into the flow and property damage implications with the regulators' possible removal.

As a consequence of the above, the Department does not give public land managers consent to the lodging of this planning permit application.

6. Mr Guerra said that the application was founded on the provisions of the Water Act in that he believed the structure is an illegal obstruction whose owner is unknown. He considered that the "obstruction" should never have been placed in the creek and should now be removed.

7. However, in a letter to the Responsible Authority dated 9 July 2001, Wimmera Mallee Water said that the structure was constructed "in 1917 to control flood flows and protect Warracknabeal and other areas from flooding".

Wimmera Mallee Water (WMW) is owner of the works referred to in this planning permit application as successor-at-law to the State Rivers and Water Supply Commission, the original owner of these works.

9. Ms Riethmuller said that flooding in the area is complex. Therefore a study is currently being undertaken of a total of 65 structures in the area and until the results are known, the subject application is premature and should not proceed.

10. This review was referred to Mr M Macnamara, Deputy President, to consider and rule on the following legal aspects:-

1. Is the application for review invalid because the consent of DNRE was not first obtained?

2. Should the embankment and pipes be considered an obstruction and removed pursuant to the provisions of the Water Act?

3. Is a further hearing required to enable further consideration of these matters?

"According to the majority of the High Court in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 the question whether breach of a provision or statute invalidates an application or proceeding depends upon whether the statute or regulation evinces a purpose to invalidate a proceeding taken in violation of the provision. Clause 36.03-3 has an evident purpose of precluding development or use applications being made without the approval of the relevant public land manager. The control over use and development of public land given to the public land manager can only be secured by invalidating permit applications where the land manager maintains a refusal of its consent. The Tribunal has power to disregard non-compliances (Cl 62 Schedule 1 Victorian Civil and Administrative Tribunal Act 1998); but that power should only be used to clear obstacles created by technical defaults or perhaps non-compliances with substantive requirements which have wholly or substantially been cured by the time the matter reaches the Tribunal. Here the non-compliance is substantive and remains wholly unremedied whilst the public land manager withholds consent. This review application cannot as a matter of law, succeed. This permit application was made under the Planning Scheme and the Planning and Environment Act 1987 - not the Water Act. If a planning permit is required and there is a clear legal obstacle to its grant the provisions of the Water Act cannot render the planning permit available. The applicants for review should be given the opportunity, if they desire to take it, to show cause why this proceeding should not be summarily dismissed pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998."