Hanson Construction Materials Pty Ltd v Department of Jobs, Precincts and Regions [2022] VCAT 251

1 The question of law raised in this proceeding is determined as follows:

Question

Does the Tribunal have the power to amend, under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), work plan variation PLN-001551 that was given to the Department Head, Department of Jobs, Precincts and Regions for statutory endorsement under section 77TC of the Mineral Resources (Sustainable Development) Act 1990 (Vic)?

Answer

Yes

2 Work plan variation PLN-001551 is amended under section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). For the whole of the work plan variation, substitute the work plan variation comprising the documents filed by the applicant on 22 January 2022.

3 By 18 March 2022 the Decision Maker must give the Tribunal and the other parties a Statement of Contentions setting out:

(a) A statement of its position in response to the amended work plan variation.

(b) An outline of the primary contentions of fact or law relied upon by that party to support its contended position in the proceeding, and a summary of the basis for those contentions. The outline should be sufficient to enable all relevant issues in the proceeding to be identified.

(c) The name of any witness retained in the matter as at the date of the Statement of Contentions and a brief summary of the evidence that would be adduced by that witness at a hearing.

(d) To the extent that not covered by (c) above, an outline of the evidence to be adduced by the party at the hearing.

(e) An updated estimate of the time required to present the party's case.

4 By 23 March 2022, all parties other than the Decision Maker must give the Tribunal and the other parties a Statement of Contentions setting out:

(a) An outline of the primary contentions of fact or law relied upon by that party to support its contended position in the proceeding, and a summary of the basis for those contentions. The outline should be sufficient to enable all relevant issues in the proceeding to be identified.

(b) The name of any witness retained in the matter as at the date of the Statement of Contentions and a brief summary of the evidence that would be adduced by that witness at a hearing.

(c) To the extent that not covered by (b), an outline of the evidence to be adduced by the party at the hearing.

(d) An updated estimate of the time required to present the party's case.

5 The details set out in the Tribunal's initiating order are confirmed.

The proceeding is listed for hearing on the date and for the time as detailed below. The hearing will be at 55 King Street, Melbourne.

If there is any change to these details, the Tribunal will notify you.

16, 17, 18, 19, 23, 24, 25, 26, 30 & 31 May 2022; 1 & 2 June 2022

10 am - 4.30 pm

The details of the online platform will be provided to the parties before the hearing.

Providing submissions and associated material before the hearing

6 No later than 5 business days before the hearing, the parties must provide an electronic copy of their submissions and associated material (such as supporting documentation, case law and photographs) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au

7 All expert evidence must be provided in accordance with the Tribunal's Practice Note PNVCAT2 Expert Evidence.

8 If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees

9 No later than 10 business days before the hearing, the applicant must provide an electronic copy of a Tribunal Book to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au

Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au

Nick Tweedie SC and Alexandra Guild of Counsel, instructed by Elle Mcintosh & Elisa De Wit, Norton Rose Fulbright Lawyers

Raelene Sharp of Counsel, instructed by Philip Stefanovski, Department of Jobs, Precincts and Regions

Sonia Turnbull, HWL Ebsworth Lawyers, instructed by Bill Howitt, Casey City Council

1 The primary purpose of this practice day hearing was to consider the application dated 16 January 2022 by Hanson Construction Materials Pty Ltd (Hanson), pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act), to amend work plan variation PLN-001551 (the WPV) (the amendment application).

2 Hanson holds extractive industry work authority 382 (WA382). WA382 applies to a former basalt quarry on the subject land. There is an approved work plan, containing a rehabilitation plan, under WA382.

3 On 25 March 2021, Hanson gave the WPV to the Department of Jobs, Precincts and Regions (the Department)[1] for statutory endorsement under section 77TC of the Mineral Resources (Sustainable Development) Act 1990 (Vic) (the MRSD Act).[2] The WPV must be endorsed because it is a 'specified variation', as defined in the MRSD Act.[3]

5 On 7 July 2021, the Department refused to endorse the WPV.

6 The Department's stated reasons include that the WPV does not comply with the Mineral Resources (Sustainable Development) (Extractive Industries) Regulations 2019 (Vic) (the MRSD Regulations) because the WPV does not include the information required by those Regulations.[4]

7 Hanson has applied to the Tribunal to review that decision. The proceeding is scheduled to start on 12 May 2022 for an estimated duration of 12 days.

8 At a practice day hearing on 9 September 2021, Hanson foreshadowed an intention to substitute the WPV. At a compulsory conference on 12 November 2021, the Tribunal fixed this practice day hearing in the event Hanson lodged the amendment application to substitute the WPV.

9 Hanson lodged the amendment application on 16 January 2022.

10 We agree the substance of the amendment application is to substitute all the documents comprising the WPV as given to the Department.[5]

11 The Department opposes the amendment application on the grounds the Tribunal does not have the power to amend the WPV. If the Tribunal finds it does have the power to amend the WPV, the Department makes no submission about whether the Tribunal should amend the WPV in accordance with the amendment application.

12 Casey City Council (the Council) makes no submission about whether the Tribunal has the power to amend the WPV or should approve the WPV.[6]

DOES THE TRIBUNAL HAVE THE POWER TO AMEND THE WPV?

13 Whether the Tribunal has the power to amend the WPV is a question of law.[7]

• Does the Tribunal acquire any power of the Department to amend a WPV?
• Is the WPV a document that may be amended having regard to section 127 of the VCAT Act?
• Does the Tribunal have general powers to consider a version of the WPV that is different to that submitted to the Department for endorsement?

Does the Department have a power to amend a WPV?

16 This issue requires analysis of the MRSD Act. We are indebted to the Department for setting out in some detail the relevant provisions. We agree with the Department that the MRSD Act creates a complex scheme for the regulation of extractive industries.

17 Under section 51(1) of the VCAT Act, the Tribunal in its review jurisdiction has 'all the functions of the decision maker'.

18 The Department relies on the reasoning in T C Rice Pty Ltd v Cardinia SC.[8] In T C Rice, the Tribunal considered whether it could amend an application to the relevant decision maker for a gaming premises approval under the Gambling Regulation Act 2003 (Vic) (the GR Act).

19 When it closely examined the GR Act, the Tribunal in T C Rice held the applicant could only amend the application before the decision maker decided the application and the decision maker did not have a specific power to amend an application. It also held that section 51 of the VCAT Act included a limitation that any power of a decision maker for a purpose other than the Tribunal's review function does not vest in the Tribunal.

20 The Tribunal ultimately held that, unless there was a specific provision in the GR Act or the VCAT Act, the Tribunal could not amend the application.

• It may 'require' changes to a WPV or 'ask' for changes to a WPV if the WPV requires endorsement.[10]
• These provisions should not be characterised as a power to amend a WPV and are analogous to the provisions in the GR Act.
• These provisions in the MRSD Act are not modified by express provisions in either the MRSD Act or the VCAT Act that grant the Tribunal a specific power to amend a WPV given to the Department for statutory endorsement.

22 The Department submits that the MRSD Act is analogous to the GR Act in that it does not give it the power to amend a WPV submitted for endorsement and, even if construed that it does, is not a power that vests in the Tribunal having regard to its purpose.

23 We are not persuaded by the Department's submissions.

24 Hanson's objective of securing a WPV requires the Department to make two fundamental decisions under the MRSD Act.

25 The first decision is whether, if the variation is a 'specified variation' (to which we have referred), to 'endorse' the WPV.[11] The second decision is whether, if planning permission has then been granted for the work in the WPV, to 'approve' the WPV.[12]

26 Hanson only applied for the first of these decisions ie the 'endorsement' of the WPV. The Tribunal proceeding is a review of the decision to refuse that endorsement.

27 We need to characterise the nature of the decision to endorse a WPV.

28 In ID-FLK Gisborne Pty Ltd v Macedon Ranges SC,[13] the Tribunal considered a review under section 149 of the Planning and Environment Act 1987 (Vic) (the PE Act) of a deemed decision by the relevant decision maker to refuse to approve a document known as a Development Plan. The decision is described as a 'secondary consent' because 'primary consent' under the PE Act was not required to approve a Development Plan. Instead, consent was required under the relevant planning scheme.

29 The Tribunal in ID-FLK held there was no legislated process for seeking approval of a Development Plan that might later be sought to amended at the Tribunal.

30 We agree with the Department that the decision to endorse a WPV may be distinguished from the decision to approve a Development Plan in ID-FLK because primary consent is required to endorse a WPV and because consultation with the relevant municipal council and affected agencies may be required, i.e. there is a legislated process for the statutory endorsement.

31 Nonetheless, the decision to endorse a WPV has a similar character to the decision in ID-FLK because, as a matter of practice that is illustrated in this proceeding, endorsement of a WPV may be sought independent of and separate to approval of WPV. There is no separate application to seek endorsement. It is not in dispute that endorsement of a WPV may be sought by simple lodging of the WPV with the Department. There is no prescribed application form or fee to submit a WPV for endorsement.[14]

32 Consequently, the impediment identified in T C Rice also does not exist.

33 Let us assume we are wrong about the character of a decision on a WPV submitted for endorsement being similar to the character of the decision in ID-FLK. If we were wrong, the alternative analysis is that there is a power to amend a WPV submitted for endorsement.

34 The Department may 'ask' for changes to the WPV submitted for endorsement.[15] We characterise this as a power to amend a WPV because the changes must be made to obtain approval of the WPV. As well, the Department may also require specified conditions in an endorsement and these may have the practical effect of changing the WPV.[16]

35 Consequently, if the Department has a power to amend a WPV submitted for endorsement, the Tribunal also has the power.

36 We do not agree with the Department that the requirement for changes locks the Department into final approval of the WPV, or therefore the Tribunal, at least at the statutory endorsement stage. There is a further exercise of discretion within the process for final approval by the Department following consultation and permit application process that relies on the endorsed WPV. In this respect we distinguish the endorsement step, with or without requested changes, as a provisional approval that can be subject to further review.

37 As the MRSD Act requires the applicant to give an WPV to the Department to commence the endorsement process and the lack of any express limitation on how that WPV may be given, we see no impediment to an amended WPV being given during the endorsement process. It follows there is no impediment to the Tribunal receiving and considering an amended WPV.

38 Section 127 of the VCAT Act relevantly provides that:

(1) At any time, the Tribunal may order that any document in a proceeding be amended.

39 The provisions in Part 3 & 4 of the VCAT Act, including section 127, are subject to variation for specified enabling enactments. There are no specified variations to section 127 for the MRSD Act.[17]

40 The Department relies on an implication relating to a variation set out in clause 64 in schedule 1 of the VCAT. We will not set out the clause because it suffices to state that, in a review proceeding under the PE Act relating to a decision on an application for planning permission, the Tribunal has the power to amend an application for such permission.

41 The Department submits section 127 of the VCAT Act would not empower the Tribunal to amend an application for planning permission, but for the enactment of clause 64. The Department submits the omission of a similar variation for a different 'planning enactment' such as the MRSD Act means that a WPV submitted for endorsement cannot be amended under section 127.

42 It is unnecessary to make a finding about this. At the practice day hearing, the question moved to argument about the legislative intention of section 127 of the VCAT Act having regard to the position under legislation predating the VCAT Act.

43 The argument included an intention to only preserve the position under the PE Act before the VCAT Act commenced or an intention that, while unnecessary, to only clarify practice under the PE Act. The argument is inconclusive. It is preferable to construe section 127 without reference to historical context.

44 Clause 64 in schedule 1 of the VCAT Act does not ultimately assist the Department's submissions. We do not find any statutory limitation on the Department's power to amend a WPV submitted for endorsement.

45 The Department submits a WPV is not a 'document in the proceeding' for the purposes of section 127 of the VCAT Act and the Tribunal is therefore not empowered to amend the WPV.

46 The expression, a 'document in a proceeding', is not defined in the VCAT Act. To our knowledge, the expression and the breadth of the power in section 127 has not been judicially considered.

47 We agree with a principle identified in previous Tribunal decisions that the apparent breadth of the power in section 127 is not unlimited. While the limits may not be settled, we agree that the power does not extend to amending a document to remove or confer the Tribunal's jurisdiction, to amending a contract, or to amending a Government or legislative document.[18] The WPV does not fall into any of those categories.

48 Hanson pressed, in part, a literal construction that section 127 has no express limitation. We are not attracted to that construction given there are implied and express limitations to which we have referred.

49 The Tribunal has considered whether a specified document is a document in the proceeding on several occasions in proceedings under a variety of legislative schemes. None of those decisions have considered whether a WPV submitted for endorsement is a document in a proceeding.

50 The learned authors of Pizer's Annotated VCAT Act, after reviewing many Tribunal decisions, expressed the view that 'it is by no means clear that the Parliament intended that VCAT could amend documents brought into existence before a proceeding commenced'.[19]

51 The Department relies on a finding in T C Rice that section 127 of the VCAT Act only applies to documents brought into existence after the Tribunal obtains jurisdiction and for the purpose of the proceeding. Clearly, the WPV was created before Hanson filed its review application to the Tribunal.

52 We need to exercise care in applying the finding in T C Rice in this proceeding. It is relevant to recall that the finding was obiter because the review application was withdrawn.

53 We agree with the Tribunal in ID-FLK that the correctness of T C Rice on this point does not need to be considered and can be distinguished on its facts.[20] There is no express or implied temporal limitation in section 127 and we agree with the Tribunal in ID-FLK that 'the key is whether the document is properly characterised as a document in the proceeding'.[21]

54 As with the Development Plan in ID-FLK, we consider:

• The WPV is the subject matter of this proceeding and is the only matter in dispute. In that sense, it is the document in the proceeding.
• Amending the WPV is a procedural matter and does not alter the Tribunal's jurisdiction nor affect substantive rights.

55 On this second point, we do acknowledge the Department's submissions that the MRSD Act does not enable the Department to make a decision on a WPV submitted for endorsement that is inconsistent with the response of a referral authority.[22] This distinguishes a WPV from the Development Plan considered in ID-FLK. The Department's obligation can nonetheless be satisfied through the Tribunal's proceeding.

56 In Rubicon Station Pty Ltd v Goulburn Murray Water[23] the Tribunal held that the application for a specified licence under the Water Act 1989 (Vic) was a document in the proceeding and could be amended under section 127 of the VCAT Act.

57 This was partly because the Tribunal found the application was 'general' in nature in that the relevant legislative scheme did not have provisions for amendment of an application and there was no prescribed information to be included in an application. The Tribunal also relied on the reference in the relevant legislative scheme to 'an' application, and the distinction with 'the' application in legislative schemes such as the GR Act.

58 The Department submitted Rubicon does not assist us in this proceeding because the reliance in the relevant legislative scheme to 'an' application, and the distinction with 'the' application in legislative schemes such as the GR Act is a fine one. As well, the Department distinguished a WPV submitted for endorsement to the specified licence in Rubicon because of the information requirements under the MRSD Act.

59 The more relevant part of the reasoning in Rubicon is that the documents in the application were 'fundamental to the Tribunal understanding the nature of the application and permission that is sought'.[24] Accordingly, the document in Rubicon has the same character as the document in ID-FLK.

60 There are policy reasons that do not support a narrower construction of section 127 of the VCAT Act. The Department submits a WPV submitted for endorsement cannot be amended and, if it were, there would be no decision of the Department left to review. If that is correct, the WPV could not be amended to respond to relevant matters, such as:

• A change in the facts set out or assumed in the WPV. These might include the condition of the subject land and its environs.[25]
• Relevant legislative change since the WPV was submitted.
• A change resulting from partial settlement of the proceeding at a compulsory conference or resulting from mere correction of errors.

61 Such outcomes would seem to us to restrict the functions of the Tribunal to resolve issues in dispute by means set out under the VCAT Act. It would also appear to fix the role of the Tribunal to review the decision as made at the time of the decision maker to be one akin to judicial review, rather than a de novo role to consider the decision afresh with the benefit of all materials before it at the time if its decision (matters we address shortly). When viewed through this lens, one utility of section 127 of the VCAT Act can be seen to permit an applicant to reconsider its position in respect to the original decision and address matters it considers appropriate when the Tribunal considers the decision afresh.

62 In conclusion, the WPV is a document in the proceeding and the Tribunal may amend it under section 127 of the VCAT Act.

63 Under section 51 of the VCAT Act, the Tribunal may vary or substitute a decision under review. Therefore, we would apply the reasoning in ID-FLK[26] to conclude that the Tribunal is not confined to either endorse or refuse to endorse the WPV that the Department considered at first instance.

64 The Tribunal in ID-FLK referred to Mond v Perkins Architects Pty Ltd[27] in which the Supreme Court said the task of the Tribunal, in its review jurisdiction, is to make the correct and preferable decision having regard to the material before it and is not bound by the original decision maker's findings of fact.

65 The Tribunal in ID-FLK also referred to Shi v Migration Agents Registration Authority.[28] The Tribunal said Shi reinforced the position that the review task of the Commonwealth Administrative Appeals Tribunal was to find the correct and preferable decision 'on the material before [that] Tribunal'.

66 The Tribunal in ID-FLK went on to say the task described in Shi is analogous to the task of this Tribunal and 'the conduct or circumstances may have changed, and the material before [this] Tribunal may include new or different information'.[29]

67 The Tribunal in ID-FLK therefore implied that the Tribunal may consider a varied Development Plan.[30]

68 The WPV in the amendment application is 'different information'.

69 The Department submitted that Mond and Shi focus on the Tribunal's power to consider different information to that considered at first instance, but do not go to the question of whether the Tribunal has the power to accept and consider the different information.

70 The submission makes, in our view, a fine distinction that loses force when section 51 of the VCAT Act is understood and when it is also recalled that the Tribunal also may inform itself on any matter as it thinks fit provided it also acts fairly and with as little technicality as required by the VCAT Act and the enabling enactment.[31]

71 The Department also submitted we should adopt a principle established in Niebeski Zamek Pty Ltd v Southern Rural Water.[32] Zamek is an early case of the Tribunal that held that section 127 of the VCAT Act is constrained by consideration of 'the controversy' considered at first instance.[33] The Tribunal did not elaborate on the meaning of 'the controversy' and whether or not this would include, for example, the precise nature of a permission sought or the essence of it.

72 The Department submitted that the principle in Zamek is consistent with its primary submission that the WPV in the amendment application does not comply with that constraint and the WPV could not therefore be amended.

73 We also agree with the observations of the Tribunal in ID-FLK that the principle in Zamek appears inconsistent with the principles in Mond and Shi and that, to the extent that the reasoning in Zamek differs, we are bound by the reasoning in Mond and Shi because they are Supreme Court and High Court authorities.[34]

74 The WPV is a document in the proceeding and, as an amendment to the WPV is not inconsistent with the Tribunal's power under section 51 of the VCAT Act, the Tribunal may amend it pursuant to section 127 of the VCAT Act.

75 The next issue is to determine whether the WPV in the amendment application should be substituted for the WPV that the Department refused to endorse. This is clearly a question about the merits of the amendment application.

76 Neither the Department nor the Council oppose the amendment application on its merits.

77 At the hearing, Hanson pointed out the main features of the amendment application. Although there are some features that may be characterised as changes of substance, there are relatively few and most of them may be characterised as clarifications and corrections that aim to address the Department's reasons to refuse to endorse the WPV.

78 There are no proper or relevant reasons on the merits to refuse to amend the WPV in the amendment application.

79 If the Council and any referral authority opposes endorsement of the WPV in the amendment application, the grounds may be filed as part of the Tribunal's processes and those grounds may be considered and determined as part of the hearing.

80 We will substitute the WPV as set out in the amendment application in accordance with section 127 of the VCAT Act.

81 The substitution of the WPV has consequences for pre-hearing procedures. In the hearing we canvassed with the parties the Tribunal's powers under section 51A of the VCAT Act in relation to the complementary role such powers might play with section 127 of the VCAT Act and our findings and consequential directions.

82 On reflection we see no need to exercise section 51A to remit the application back to the Department for a reconsideration of its decision.

83 Melbourne Water (MW), as a referral authority under the PE Act, and Southern Rural Water (SRW) are agencies who the Department indicates may have an interest in this proceeding. They have been advised of the WPV application for review. Neither has sought to be a party in the proceeding.

84 In material filed by Hanson and the Department, MW is on record as raising matters about the impact of the proposal on aquatic ecosystem values. This response is couched in terms of a response to a development proposal and is of a general nature not specific to the rehabilitation proposal or amended WPV. Southern Rural Water's response to early notice of the WPV (November 2020) was that it held no concerns in respect to groundwater resource impacts.

85 Further, Hanson has, in accordance with the Tribunal's orders dated15 September 2021 and 22 November 2021, circulated the amended WPV to MW and SRW and to the Department of Environment, Land, Water and Planning. None have lodged a statement of grounds or sought to be joined to this proceeding.

86 We are satisfied that a remittal so that the Department can undertake its referral process under a reconsideration is not necessary.

87 We agree with Hanson that the Department has had sufficient notice of the amended WPV and therefore should be able to review its position and provide amended grounds and contentions within a reasonably succinct period so the scheduled hearing dates are retained. With some amendments, we adopt the proposed orders filed by Hanson.

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[1] The formal decision maker is the 'Department Head' of the Department of Jobs, Precincts and Regions. For convenience, we will refer to the Department Head as 'the Department' in these reasons.

[2] We deliberately refer to 'gave' because s 77TC of the MRSD Act states a person in the position of Hanson (ie a holder of a work authority) may 'give' a WPV to the Department for endorsement. In these reasons, we also refer to 'submitting' a WPV in the same context.

[5] No change to other documents, including any forms seeking endorsement, are apparently required.

[6] At the Council's request, we granted leave to the Council to be excused from further attendance at this practice day hearing after making this submission.

[7] The question is determined by Senior Member Code, who is an Australian Lawyer. Senior Member Potts concurs with Senior Member Code's reasons.

[8]9 [2019] VCAT 74 ('T C Rice').

[11] It is not in dispute that the WPV requires statutory endorsement. This is the case because the WPV varies work in the approved WPV in respect of which a planning permit under the Planning and Environment Act 1987 (Vic) is required. The Council, as the responsible authority for the Casey Planning Scheme (the Scheme), has told the Department that this is the case. A permit was granted to use and develop the subject land for an extractive industry many years ago. It is not in dispute that the permit will need to be amended if the WPV is endorsed.

[12] In addition, we observe that it appears that an application for approval of a WPV cannot be lodged unless the WPV is endorsed, if endorsement is required in a particular case - see s 77H of the MRSD Act.

[13] [2019] VCAT 1336 ('ID-FLK').

[14] Hanson paid a fee to obtain statutory endorsement of its WPV but the fact of paying a fee that is not prescribed does not change the analysis.

[17] See VCAT Act sch 1 cl 15. As the MRSD Act is a 'planning enactment' for the purposes of part 16 of sch 1 of the VCAT Act, cls 52 to 66 of sch 1 are also relevant.

[18] ID-FLK [2019] VCAT 1336 [10].

[19] Emrys Nekvapil, Pizer's Annotated VCAT Act (Thomson Reuters, 6th ed, 2017).

[20] ID-FLK [2019] VCAT 1336 [9].

[21] ID-FLK [2019] VCAT 1336 [44].

[23] [2020] VCAT 149 ('Rubicon').

[24] Rubicon [2020] VCAT 149 [33].

[25] We also observe that reg 8(a) of the MRSD Regulations requires a description of 'sensitive receptors' (as defined) in the vicinity of the proposed works. It would be odd that a WPV could not be amended to amend the description of such receptors if a new receptor came into existence after the WPV was given to the Department.

[26] ID-FLK [2019] VCAT 1336 [28]-[36].

[27] [2013] VSC 455 [10] ('Mond'); referred to in ID-FLK [2019] VCAT 1336 at [30].

[28] [2008] HCA 31 ('Shi'); referred to in ID-FLK [2019] VCAT 1336 at [49]- [50].

[29] ID-FLK [2019] VCAT 1336 [49].

[30] ID-FLK [2019] VCAT 1336 [31].

[32] [2001] VCAT 1627 ('Zamek').

[33] [2001] VCAT 1627 [20].

[34] ID-FLK [2019] VCAT 1336 [52].