1 In application P699/2007, pursuant to section 120 of the Planning and Environment Act 1987 and commencing on 11 May 2007, the respondent/occupier, Snowy Hydro Limited, must not operate the Power Station on the subject land between the hours of 8.00am to 5.00pm Mondays to Fridays (except on public holidays or in the event of an emergency) until further order of the Tribunal.

2 Pursuant to section 129(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998:

a)

Metroll Victoria Pty Ltd must give any other party to these proceedings and any person who is to give evidence in this proceeding on behalf of that party access to the land at 138 - 142 Cherry Lane, Laverton North for the purpose of inspection and collection of evidence, including testing.

b)

Snowy Hydro Limited must give any other party to these proceedings and any person whose is to give evidence in these proceedings on behalf of that party access to the subject land for the purpose of inspection and collection of evidence, including testing.

c)

Any party wishing to gain access pursuant to this order must provide the relevant owner/occupier of the land in question 24 hours notice in writing of intention to enter the land and provide details of the time access is required and the nature of the testing to be undertaken.

d)

Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Metroll Victoria Pty Ltd is joined as a party in applications P1084/2007, P1093/2007 and P1094/2007.

3 In applications P1084/2007, P1093/2007 and P1094/2007:

a)

By no later than 16 May 2007 the responsible authority must file and serve any statement of grounds.

b)

By no later than 30 May 2007 Snowy Hydro Limited must file and serve any request for further and better particulars of the responsible authority's statement of grounds.

c)

By no later than 13 June 2007 the responsible authority must file and serve its further and better particulars of the responsible authority's statement of grounds.

4 Each party, other than Vaughan Industrial Projects Pty Ltd, must:

a)

By no later than 30 May 2007, file with the Tribunal and serve on all other parties a list of all documents in its possession or under its control relevant to this application. All documents must be listed and if privilege is claimed in respect of any particular document, this must be identified.

b)

Within 14 days of receipt of a request from another party to do so, make the documents available for inspection during business hours at its usual place of business or at an address in Melbourne.

c)

Within 14 days of receipt of a request from another party to do so, provide to that party photocopies of the documents at the expense of the party requesting the copies

5 The proceedings are referred to mediation on 29 June 2007 at 10.00am for 1 day, and under section 89 of the Victorian Civil and Administrative Tribunal Act 1998 the following directions are given for the mediation:

a)

A natural person who is a party to the proceeding must attend the mediation either in person or by a representative who has authority to settle the proceeding on behalf of that party;

b)

Each body corporate which is a party (including a responsible authority, referral authority or statutory authority) must attend the mediation by a representative who has authority to settle the proceeding on behalf of that party;

c)

If the application or permit application subject to the proceeding was made in the name of a person as agent or consultant for a principal, the principal must either attend the mediation in person or by a representative who has authority to settle the proceeding on behalf of the principal;

d)

Each party should commence the mediation with a short written statement briefly describing the proceedings and setting out the issues which that party considers are in dispute.

6 Not later than 10 business days before the date listed for the hearing each party must serve on the other parties and file with the Tribunal a copy of each document and statement of the evidence or report of each witness, whether that witness be an expert or a lay witness, on which that party intends to rely at the hearing not yet filed and served.

7 Application P699/2007 for an enforcement order pursuant to section 114 Planning & Environment Act 1987 shall be heard and determined together with applications P1084/2007, P1093/2007 and P1094/2007.

8 The proceedings are listed for hearing for 5 days commencing on 23 July 2007 before a presidential member and a member with experience in environmental matters.

9 Liberty to apply.

10 Costs reserved.

Mr Nick Pane and Mr Jason Kane of counsel, instructed by Hoey's Lawyers.

Mr Peter Van Till, town planner, on 30 March 2007; Mr John Rantino, solicitor of Maddocks on 3 April 2007; and Mr Barnaby McIlwraith, Solicitor of Maddocks on 3 May 2007.

Mr Hugh Foxcroft SC and Ms Juliet Forsythe of counsel, instructed by Mallesons Stephens Jaques.

1 Metroll Victoria Pty Ltd (Metroll) has applied for an enforcement order against Snowy Hydro Ltd (Snowy Hydro) to restrain it from operating a gas fired power station on the subject land. Metroll says that excessive noise and vibration from the power station are causing its staff headaches, earaches, nausea and other adverse health effects. It alleges that Snowy Hydro is operating the power station in breach of its planning permit in a way that adversely affects the amenity of the locality.

2 The specific orders sought, which are set out in the application for enforcement order, are as follows:

1. The Respondent immediately ceases to use and operate the Power Station in a manner that is adversely affecting the amenity of the locality.

2. The Respondent immediately ceases to use and operate the Power Station in a manner that is in breach of condition 3 of the Permit and the stated purposes of the Industrial 2 Zone.

3. The Respondent immediately ceases emitting noise and vibration from the Snowy Hydro property that is adversely affecting the amenity of the locality.

4. Such other orders that the Tribunal deems appropriate or necessary.

5. The Respondents pays for the Applicant's costs of this application.

3 Metroll have also applied for an interim enforcement order and the relief sought is the same as set out above. Metroll has given no undertaking as to damages. This hearing and decision relate to the application for interim enforcement order.

4 Metroll owns and occupies a factory and office building at 138-142 Cherry Lane, Laverton North. The office building is setback from Cherry Lane approximately 5 metres and contains two levels. Metroll is a supplier and manufacturer of a range of building projects. It employs approximately 70 people at the Metroll property consisting of 35 employees in the factory, 20 office staff and the remainder who work in distribution of its products.

5 The Metroll property is located within an Industrial 3 Zone under the Wyndham Planning Scheme.

6 Directly across the road from the Metroll property is a recently constructed gas fired power station located at 147-161 Cherry Lane, Laverton North. The power station is owned and operated by Snowy Hydro. The land on which the power station is constructed is owned by Vaughn Industrial Projects Pty Ltd, which leases the land to Snowy Hydro.

7 The Snowy Hydro property is included in an Industrial 2 Zone in the Wyndham Planning Scheme.

8 The Snowy Hydro property is part of an extensive Industrial 2 Zone at Laverton North which is of state significance. The property is bounded to the rear (south east) by the Princes Freeway. On the other side of the Princes Freeway are the Laverton Grasslands and land in the Altona Special Industrial Areas (zoned Special Use Zone 4 under the Hobsons Bay Planning Scheme) which includes the Altona petrochemical complex and other major industries.

9 Planning permit WYP3502 was issued by the responsible authority, Wyndham City Council on 8 June 2004. The permit allows: "Development and use of land for the purpose of a Utility Installation (350 MW Gas Fired Power Station) in accordance with the endorsed plans."

10 Metroll is alleging that operation of the power station breaches condition 3 of the permit which provides as follows:

[3] The use permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality by reason of the processes carried on; the transportation of materials, goods, or commodities to or from the subject land; the appearance of any buildings, works or materials; the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, dust, waste water, waste products, grit, or oil; the presence of vermin, or otherwise.

11 A further condition in the permit which addresses noise is condition 4 which provides:

[4] Noise emissions must comply with State Environment Protection Policy (Control of Noise from Commerce, Industry and trade) No. N-1.

12 Secondary consent has been granted by the council pursuant to condition 6 of the permit to allow for flashing lights to be installed on the top of the power station as required by the Civil Aviation Authority.

13 A works approval (WA55267) was issued for construction of the power station by the Environment Protection Authority (EPA). The EPA has also issued a draft waste discharge licence. Both the works approval and the draft waste discharge licence contain the following conditions:

This approval [licence] applies to a premises where electricity generating plant is to be installed [installed] for operation during times of peak demand. It allows for the construction [operation] of natural gas fired turbines and equipment. The station will be primarily natural gas fired and will also have the capacity to use diesel fuel.

For the purposes of this works approval [licence], peak operation is defined to be short periods amounting to less than a 10% capacity factor in any calendar year (i.e. the maximum number of hours which is equivalent to 876 hours at full capacity in any calendar year), plus any periods during which NEMMCO has declared Lack of Reserve for Victoria.

14 The initial hearing of the application for an interim enforcement order was held on 30 March and 3 April 2007.

15 Evidence was given by affidavit on behalf of both Metroll and Snowy Hydro. An accompanied inspection took place on 2 April 2007 of both Metroll's factory and office premises at 138-142 Cherry Lane, Laverton North and Snowy Hydro's power station across the road at 147-161 Cherry Lane, Laverton North. I experienced the noise and vibration from the power station which Metroll staff claim are causing them to feel sick. I observed that windows in the Metroll building vibrate visibly and this is evident both internally and externally. I observed that other articles inside the Metroll building also vibrated visibly, such as the photocopier and other office equipment.

16 On behalf of Metroll affidavits were submitted from the following people:

•

Kevin Broadfoot, Director of Metroll[1]

Two noise reports from VIPAC Engineers and Scientists Ltd (Vipac) and Burton Acoustic Group (Burton) were also submitted.

17 On behalf of Snowy Hydro a report by Stuart McGurn, Town Planner, of Fulcrum Town Planning was submitted and the following affidavits were filed:

• Paul Anthony Smyth, Business Development Manager.

18 One of the issues raised by Snowy Hydro at the hearing was that the application for both enforcement order and interim enforcement order were fundamentally misconceived because the responsible authority had not formed the relevant "opinion" as required by the words of condition 3. Condition 3 requires that: "The use permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality" (etc). Metroll had never complained to the council about the effects of the operation of the power station. The council had never been requested to form an opinion about the use and no opinion had been formed.

19 On 30 April 2007 the Tribunal was advised by the solicitors for Metroll that since the hearing of the application for interim enforcement order concluded on 3 April 2007 additional matters had occurred which it was submitted were relevant to my deliberations and decision. I was asked to consider these additional matters.

20 The first additional matter was that on the 23 April 2007, Wyndham City Council formed the opinion "that the operation of the gas fuelled turbines associated with the Utility Installation located at 127 Cherry Lane, adversely effects the amenity of the area by way of low frequency noise and vibration."

21 The second additional matter was that since 10 April 2007 the power station has operated on a daily basis in accordance with an attached table of times.

22 I did not consider that it was appropriate to take these additional matters into consideration without first giving other parties an opportunity to be heard. Accordingly, a further hearing was held on 3 May 2007. At that hearing, a further affidavit by Frank Collett was submitted by Metroll. In addition to providing evidence of records kept about the operation of the power station since 3 April 2007, the affidavit also addressed the ongoing effects of the operation of the power station of the health and well being of Metroll staff; communications with people at the Bowen Hardware outlet, located at Cherry Lane adjacent to the power station; and communications with the AWU.

23 On 2 May 2007 Snowy Hydro filed with the Tribunal applications under section 149 of the Planning and Environment Act 1987 for review of the decision of the council in respect of condition 3 of the permit, and applications under section 149A and 149B of the Act for declarations regarding the validity of that decision.[2]

24 At the hearing on 3 May 2007, in addition to hearing from the parties regarding the admissibility of the additional matters raised by Metroll and how I should deal with them, a number of procedural orders were sought by various parties. I will deal with them in due course. At this point I will deal with the way in which I intend to handle the additional matters that have occurred since 3 April 2007.

ADDITIONAL MATTERS OCCURRING SINCE FIRST HEARING

25 As a general principle, the Tribunal may consider new evidence, information or submissions submitted after a hearing has concluded so long that this is not prejudicial to any other party and where the Tribunal considers that the interests of justice so require.[3] The Tribunal may inform itself on any matter as it sees fit[4] but it is bound by the rules of natural justice[5].

26 In the present case I consider that it is appropriate for me to consider the fact that the council has now formed an opinion in relation to condition 3 of the permit. I consider this fact to be highly relevant in making a determination about whether interim relief should be granted. One of the primary submissions made by Snowy Hydro against granting interim relief was based on the fact that, at the time of the first hearing, the Responsible Authority had not formed any opinion under condition 3 and consequently the application for an enforcement order has virtually no prospects for success. The fact that the council has now resolved to form an opinion removes that argument.

27 Snowy Hydro has sought to counter the effect of the council's resolution to form an opinion by lodging applications for declarations under sections 149A and 149B of the Planning and Environment Act 1987 challenging the validity of the resolution. At the hearing on 3 May 2007 Metroll argued that these applications are hopeless and misconceived for various reasons. Snowy Hydro submitted that it was taken by surprise by these submissions and should be given time to respond.

28 If I was minded to make any findings or rulings upon Metroll's submissions about the likelihood of the success of Snowy Hydro's applications for declaration, I would provide Snowy Hyrdo with an opportunity to respond. However, at this stage I do not consider I need to make any comment about them.

29 I am dealing with an application for interim relief. As I discuss later, my role is not to make final findings about whether a breach of condition 3 of the permit has occurred and is continuing to occur, rather I must consider whether there is a serious question to be tried and the likelihood (or probability) of the applicant's success.

30 The issues that are relevant in deciding whether there is a serious question to be tried and the likelihood of success in the enforcement order application include whether or not, as a fact, the council has formed an opinion in connection with condition 3 of the permit. The validity of the decision to form that opinion is a question of law, the outcome of which depends upon an entirely different proceeding, namely the declaration proceeding(s). Procedurally, it will be appropriate to deal with those proceedings at the same time as the hearing of the enforcement order application under section 114 of the Act. But I consider that it is too remote to speculate about the likelihood of the success of entirely different proceedings in forming an opinion about the likelihood of success of the enforcement order proceeding. The success of the declaration proceedings may influence argument at the enforcement order hearing if the decision of the council is held to be invalid for any reason. But, as I discuss later, I am not convinced that the Tribunal does not have the power to form its own opinion about whether operation of the power station is detrimentally affecting the amenity of the locality. And in any event, there would be nothing to prevent the council from taking steps in the meantime to remedy any deficiencies in its decision and, if necessary, to make a fresh decision.

31 The point is that all these variables are matters for consideration at a later date when the enforcement order application is heard. In considering this application for an interim enforcement order, I take the view that I am entitled to rely on the fact that the council has resolved to form the opinion that the operation of the power station adversely effects the amenity of the area by way of low frequency noise and vibration. I do not need to form an opinion about the likelihood of the success of Snowy Hydro's applications for declarations regarding the validity of that decision. The purpose of an interim enforcement order proceeding is to halt some harm on an interim basis until the full hearing can occur and all these sorts of matters can be resolved. I am entitled to rely upon the presumption of regularity and assume at this point that council's decision is a valid decision. Consequently, there is no need to provide Snowy Hydro with an opportunity to respond to submissions made about this matter by Metroll before making a decision about the application for interim enforcement order.

32 I do not consider that the further affidavit of Frank Collett and the information contained in it falls into the same category as the council's resolution to form an opinion in relation to condition 3 of the permit. The information in it simply reinforces arguments and evidence submitted by Metroll at the first hearing. It is not information that is likely to affect the outcome of my decision about the interim enforcement order application. I have therefore not taken the contents of the further affidavit of Frank Collett into consideration in this decision.

33 The power station is a 320 MW gas fired peaking power station. The purpose of the peaking power station is to generate additional power into the electricity grid to assist in meeting Victoria's growing peak electricity demands. According to Snowy Hydro, the power station will also assist in maintaining the reliability and security of Victoria's electricity network, and increase competition in the electricity market. Peak power demands typically occur during the summer months when domestic air conditioning requirements are at their highest, and during winter when heating demands are at their highest.

34 Although the generators are normally operated remotely from the Snowy Hydro Cooma Central Control Centre in NSW, the power station has an onsite control room to facilitate full independent local operation if necessary. The power station is attended during normal business hours for security and maintenance purposes.

35 Whilst the power station was expected to operate on an intermittent basis to satisfy peak power demands or in the event of the failure of other generators in Victoria, according to the affidavit of Roger Whitby, over the 2006-2007 summer period Snowy Hydro operated the power station much more than anticipated due to the following factors:

The ongoing drought which reduced the capacity of the Snowy Hydro hydro-electric scheme and other hydro-electric generators in the NEM [national electricity market] to generate electricity;

The restricted outputs of other thermal generators due to cooling water restrictions as a result of the ongoing drought;

Hot summer temperatures causing high demands in electricity in the NEM;

Plant failures and outages of other generators reducing normal sources of supply in the NEM;

Transmission outages and constraints in the NEM also restricting normal sources of supply in the NEM; and

36 During November 2006 Snowy Hydro commenced to commission and test the power station. During December 2006 the power station became fully operational and has operated since on virtually a daily basis.

37 It is common ground, and I accept, that once the power station commenced to operate, the office building located on the Metroll property began to vibrate significantly and noise levels increased substantially externally and internally within the Metroll Building. The noise has a significant low frequency component.

38 Ever since the power station started to operate (from November 2006 during commissioning and then on a consistent basis since December 2006 when the power station became fully operational) many of Metroll's staff, particularly those located within the office building, began to complain that the noise and vibration from the power station caused them to feel sick. The range of symptoms include: headache, earaches, nausea, dizziness and just feeling generally unwell. The operation of the power station is also having an adverse impact on their ability to perform their work duties effectively. According to the affidavits of Metroll employees, many:

•

Have reported that they have suffered from headaches, nausea, earaches and other adverse health conditions.

•

Have been absent from work and unable to fulfil their duties effectively.

•

Are taking Panadol on a regular basis in an attempt to combat the headaches - some employees are taken up to ten Panadol a day to combat the headaches.

•

Have been unable to relax during their lunch break.

•

Are experiencing "ringing in the ears", lack of concentration, "mood swings", trouble sleeping at night, neck pain, dizziness.

39 This evidence was uncontested. I find that these adverse effects have been caused by the operation of the power station because, according to the affidavits of Metroll employees, those effects were not experienced by them prior to the power station commencing operations but the effects have become apparent since the operations commenced. I therefore find on the balance of probabilities that there is a direct connection. My own observations of the noise and vibration experienced during my inspection adds weight to the evidence by Metroll.

40 The only exception to my findings about the adverse health effects that the operation of the power station is having on Metroll employees are the hospital visits of Robert McManus on 16-17 January 2007 and the collapse and hospitalisation of Niraj Shah on 2 March 2007. I do not accept on the evidence currently before me that there is a necessary connection between these events and the operation of the power station. It is possible that these events have other causes.

41 Metroll has had two noise reports prepared, the Vipac and Burton reports. Both reports were produced to the Tribunal but no witnesses were called to substantiate them. The reports were generally in accordance with one another. Noise levels measured were compared with Australian Standard 2107 - 2000 "Acoustics - Recommended Design Sound Levels and Reverberation Times for Building Interiors" which provides recommended satisfactory background noise levels for various types of occupancy. AS2107 sets out the following satisfactory and maximum levels in dB(A)Leq for various types of office accommodation. The lower levels are the satisfactory noise levels that are found to be acceptable by most people and not to be intrusive. The upper level is the maximum level and the level at which most people start to become dissatisfied with the level of noise.

42 Tables 2 and 3 summarise the measured noise levels in ground and first floor offices at the Metroll property as measured by Vipac. The noise levels are compared to the AS2107 lower levels ("criteria") and the exceedance is measured by reference to the lower level. For comparison, I have inserted in square brackets in the column headed "criteria" the upper level in AS2107:

Table 2 Noise Levels in Ground Floor Offices, Leq dBA[7]

Table 3 Noise Levels in First Floor Offices, Leq dBA[8]

43 The following conclusions are expressed in the Burton report:

The low frequency noise levels during operation of the Power Station subjectively increase by at least four fold. Subjectively the low frequency noise produces an effect similar to that generated by a partially open rear window in a vehicle when travelling at speed.

The noise levels during non-operation of the Power Station although slightly in excess of AS2107, they are typical for offices associated industrial premises [sic]. The overall dB(A) levels which heavily discount low frequency noise increase by between 5 to 8 dB(A) during operation of the Power Station. As a 10 dB(A) increase in noise is subjectively judged as a doubling in loudness, the amenity within the offices is seen as being severely eroded during operation of the Power Station.

As under SEPP N-1 a noise sensitive location is within 10 metres of a residence, it is more than likely that compliance will be easily achieved.

The findings of this report are generally in accordance with those of the Vipac Report.

44 From the outset of operation of the power station in November 2006, Metroll staff complained about the adverse effects of the noise and vibration. The first letter sent by Metroll to Snowy Hydro identifying the adverse effects and requesting Snowy Hydro to stop the nuisances immediately was sent on 17 November 2006.

45 Since then there has been an ongoing stream of correspondence, telephone calls and discussions between Metroll and Snowy Hydro regarding the effects of the operation of the power station and potential measures to alleviate them.

46 Metroll has allowed representatives of Snowy Hydro, Siemens (the firm responsible for design, construction and commissioning of the power plant) and SKM (consultants) to undertake testing at the Metroll property. No details of the noise testing by SKM have been produced by Snowy Hydro.

47 Modelling has been undertaken by Siemens in Germany. The Tribunal was given a copy of a PowerPoint presentation intended to be presented to Metroll by Siemens and Snowy Hydro at a meeting on 23 March 2007, which was cancelled. The following points are made under the heading "Conclusions":

•

Plant meets the EPA criteria

•

Flow induced effects exist

•

To reduce flow induced effects Siemens propose to:

◊ Reduce maximum velocities at the diffuser outlet and silencer inlet

◊ Reduce gas flow spin

◊ Reduce re-circulation

48 No information was produced by Snowy Hydro as to when works to reduce the flow induced effects identified by Siemens might be undertaken or the likely effects of such works.

49 Metroll has relocated some of its office staff to other premises and to other locations within the Metroll building, but there are limited opportunities for this due to space and operational constraints.

50 In early February 2007 Snowy Hydro placed two rows of five empty, rented shipping containers on the Metroll property directly in front of the offices in an attempt to reduce the noise and vibration emanating from the power station. They were ineffective.[9] Metroll staff complained that the shipping containers made the problems worse by blocking natural light into the offices. Snowy Hydro offered to fill the containers with sand, which it considered would make them more effective. Because of the weight of the containers filled with sand, it was necessary for Snowy Hydro to fabricate and install temporary foundations for the containers. In early March 2007, Snowy Hydro removed the shipping containers off site in order to prepare for the ground to be compacted and the foundations to be laid. Upon stripping the grass, the contractor discovered two pits that might be damaged by the works. On 14 March 2007, Metroll instructed Snowy Hydro to stop work on the containers. They have not been replaced.

51 In mid February 2007 Snowy Hydro provided two sets of noise cancelling head sets to Metroll for trial to see if their staff were more comfortable using these. Tony McManus and Frank Collett trialled them but they were not effective.

52 At the suggestion of Metroll, Snowy Hydro agreed to limit the operation of the power plant so it would not operate between 11.00 am to 2.00 pm weekdays to create a quiet time for staff during lunch time and at a time of day when work load was high. There have been three occasions (19 and 27 February and 15 March 2007) when Snowy Hydro has needed to depart from this regime and operate the plant during this period.

53 On 5 February 2007 the Australian Workers Union visited the site with their own occupational health and safety representative. They expressed concern at the working environment and advised that Metroll was "on notice" that it was in their opinion an unhealthy work place that required a very quick resolution.

ISSUES RELATING TO AN INTERIM ENFORCEMENT ORDER

54 The power to make an interim enforcement order is provided for in section 120 of the Planning and Environment Act 1987. The relevant provisions of section 120 provide as follows:

(1) Any responsible authority or person who has applied under section 114 for an enforcement order may apply to the Tribunal in an urgent case for an interim enforcement order against any person or persons in relation to whom the application under section 114 was made.

(3) Before making an interim enforcement order, the Tribunal must consider -

(a) what the effect of not making the interim enforcement order would be; and

(b) whether the applicant should give any undertaking as to damages; and

(c) whether it should hear any other person before the interim enforcement order is made.

(4) After complying with sub-section (3), the Tribunal may make an interim enforcement order directing any person against whom the order is made -

(a) to stop the use or development immediately or within the period specified in the order; or

(c) to do specified things to ensure compliance with this Act or a planning scheme, permit condition or agreement under section 173.

55 The Tribunal in Stonnington City Council v Blue Emporium Pty Ltd[10] held that in determining an application for interim relief the Tribunal should take the course that appeared to carry the lower risk of injustice to a party. This required an assessment of the likely outcome of the proceeding and the nature of the harm that each party may suffer in the event that the interim decision was later found to be "wrong". Specifically, Justice Morris said:

[6] In relation to interlocutory injunctions Hoffman J said in Films Rover International Ltd v Canon Film Sales Ltd [1987] 1 WLR 670, at 680, that:

A fundamental principle is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong".

In making that statement Hoffman J was concerned with the possibility of the interim injunction being granted and subsequently it turning out that it should not have been granted and comparing that with the possibility of the interim injunction being refused and subsequently it turning out that it should have been granted.

[7] For my part, I believe the same approach should apply in determining applications for interim relief, whether interlocutory injunctions or interim enforcement orders. The principle espoused by Hoffman J could actually be simplified, yet broadened, to a principle that the tribunal should take the course which appears to carry the lower risk of injustice. This will involve an assessment of the probability of the proceeding being ultimately successful and an assessment of the probability and nature of the harm which each party may suffer in the event that the interim decision is "wrong" in the sense used by Hoffman J. This method compresses the traditional approach, which is in two parts (is there a serious issue to be tried and what is in the balance of convenience), into one test. But although there is some compression, the same matters are taken into account.

56 This approach has now been endorsed by the Court of Appeal: see Bradto Pty Ltd v State of Victoria.[11]

57 The first matter to be considered is whether there is a serious question to be tried. This involves a consideration of whether the Tribunal has jurisdiction to make an order, whether there is a prima facie breach of the permit and the probability of the application for enforcement order ultimately being successful.

58 I must then consider where the balance of convenience lies. Having regard to all these matters I must finally decide if interim relief should be granted and if so, what form it should take. This will require consideration of the matters in section 120, namely: what the effect of not making the interim enforcement order would be; and whether the applicant should give any undertaking as to damages.

59 In considering an application for an interim enforcement order the Tribunal's role is not to make final findings about whether there has been a breach of the Act, a planning scheme, permit or agreement. At this stage the evidence presented is only by way of affidavit and reports and there has been no opportunity to test this evidence. As Deputy President Macnamara said in Glen Baker v Capital Arcade Pty Ltd:[12] "in a proceeding such as this, one does not seek to determine disputed issues of fact, at any rate questions of fact which are dependent upon the credibility of witnesses". Rather, the Tribunal must decide whether there is a serious question to be tried.

60 It is not possible to decide whether there is a serious question to be tried without considering the operation of condition 3.

61 Snowy Hydro argued that the application for interim enforcement order should be refused on the basis that the application for an enforcement order has virtually no prospects of success. It is fundamentally misconceived because the responsible authority has not formed the relevant "opinion" as required by the words of condition 3. Condition 3 requires that: "The use permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality" (etc).

62 At the time of the first hearing the council had not formed an opinion. However, it has now formed the opinion that the use of the subject land for a power station adversely affects the amenity of the locality by reason of noise and vibration. This opinion has been challenged by Snowy Hydro both as to substance (by virtue of the section 149 application) and as to validity (by nature of the section 149A and 149B applications).

63 I hold that I am entitled to rely upon the presumption of regularity and to assume that, for the purposes of considering interim relief, the council's opinion is valid. This will not prevent Snowy Hydro from pursuing its declaration applications at the final hearing, but as I have previously said, they are separate applications and to consider their likelihood of success at this juncture runs the risk of conducting a "trial before a trial"[13].

64 In deciding whether there is a serious question to be tried, I need to be satisfied that there is a prima facie breach of the permit condition and that the breach is real, not spurious or fanciful.[14]

65 On the one hand it may be said that the mere fact the council has formed an opinion that the use is adversely affecting the amenity of the locality is sufficient to establish a prima facie breach of the permit and it is not necessary that the Tribunal form its own view about whether the amenity of the locality is being adversely affected. If that was the case, then the only way in which the substance of the dispute about noise and vibration could be contested is via a section 149 application by Snowy Hydro. In fact, Snowy Hydro has lodged such an application. The problem is that Metroll is not automatically a party to such application, although this can be overcome by joining Metroll as a party under section 60 of the Victoria Civil and Administrative Act 1998. It seems strange though, if the central issue in dispute could not be determined by the Tribunal within the parameters of the enforcement order procedure itself, but only by way of a supplementary procedure. For this reason, it is arguable that the Tribunal's ability to judge for itself whether the amenity of the locality is being adversely affected is not ousted by the words in condition 3 in the opinion of the responsible authority. This is a matter that I address later.

66 However, it seems to me that in whatever context the issue arises - the enforcement order application or the section 149 application - it will be relevant when assessing the probability of the proceeding being ultimately successful, and deciding ultimately what course carries the lowest risk of injustice if it should turn out to have been wrong, to consider whether, on a prima facie basis, the amenity of the locality is actually being adversely affected by reason of noise and vibration.

Is the amenity of the locality being adversely affected?

67 I consider that in the context of condition 3, the "locality" refers to any land in the vicinity of the subject land. The Metroll property is opposite the subject land. Consequently, in my view the Metroll property is within the locality.

68 It was suggested by Snowy Hydro that for there to be a breach of condition 3, the whole of the locality would need to be adversely affected, not just one property. I do not accept this. Condition 3 has been included in the permit for the benefit of persons or properties within the locality to protect their amenity. It is self evident that different properties may be affected in different ways depending on their proximity to the subject land and their type of use or development. However, the way in which other properties or persons may be affected by operation of the power station is not necessarily relevant. It only needs the amenity of one property in the locality to be adversely affected for there to be a breach of the condition.

69 The more critical issue to determine is what the relevant "amenity" of the locality is. This will depend upon what sort of amenity this particular type of locality can reasonably expect to enjoy. For example, the amenity that industrially zoned land can reasonably expect to enjoy is different to the amenity that residentially zoned land can expect.

70 The subject land is in an Industrial 2 Zone. The purpose of the Industrial 2 Zone (so far as relevant) is "to provide for manufacturing industry, storage and distribution of goods in associated facilities in a manner which does not affect the safety and amenity of local communities". I do not consider that the local communities referred to in this purpose include land such as the land opposite in the Industrial 3 Zone, but rather the term refers to any local residential communities. The Industrial 2 Zone is generally applied to large industrial areas which have a core more than 15,000 metres from residential areas and are of state significance. (Other purposes of the zone refer to this core area). Special requirements apply to the core area of this zone (i.e. the area more than 15,000 metres from a residential zone) as these areas are a resource intended to be protected for use only by uses which require that degree of separation from residential and similar areas.

71 The Metroll property is within an Industrial 3 Zone. Its purposes (so far as relevant) include:

To provide for industries and associated uses in specific areas where special consideration of the nature and impacts of industrial uses is required or to avoid interindustry conflict.

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

72 Again, I consider that the local communities referred to in the purpose of this zone refer to local residential communities. The Industrial 3 Zone is designed to be applied as a buffer between the Industrial 1 or 2 Zone and residential areas, if necessary, and that is the likely reason why it has been applied to the Metroll land if regard is had to the physical relationship between the Industrial 2 Zone, which the subject land is on the periphery of, and the nearby residential area of Laverton to the south west, which is included in a Residential 1 Zone.

73 The amenity that Metroll can therefore expect to enjoy is the amenity of land in an industrial zone at the interface between an Industrial 2 Zone and an Industrial 3 Zone.

74 There is no question that use of the subject land for the purpose of a power station is an appropriate use of the land or that the Industrial 2 Zone is a suitable zone where uses such as the power station, which may have off site impacts such as noise and vibration, may be located. However, that does not mean that uses within an Industrial 2 Zone can operate without any regard to their off site effects or that their off site effects can be unconstrained. The off site effects generated by such uses may be controlled in various ways, for example by planning permit conditions or EPA licences and works approvals. There may be various standards that use and development should adhere to, for example Australian Standards or State Environment Protection Policies, although such standards or policies will not necessarily cover the field in relation to every aspect of a use or development.

75 Noise in particular, is an effect that is not comprehensively covered by regulation or standards. SEPP N-1 (Control of Noise from Commerce, Industry and Trade), which is referred to in condition 4 of the permit, is not relevant to the Metroll property because SEPP N-1 prescribes noise limits which are to be met at houses and other noise sensitive locations. There are no State Environment Protection Policies, and essentially no legal limits, on noise emission from industry to public space such as parkland and the like, to other industries or non-residential land uses. Occupational noise limits apply only within a site[15].

76 This does not mean though that an industry can ignore its neighbours in terms of noise emissions. It is for this reason that conditions such as condition 3 are frequently included in permits. They are intended to ensure that the use does not cause a nuisance by any of the ways specified. In the Industrial 3 Zone it is a planning scheme requirement that the use must not adversely affect the amenity of the neighbourhood, including through the emission of noise and vibration.[16] Whilst there is no corresponding provision in the Industrial 2 Zone, the decision guidelines in clause 33.02-2 of the planning scheme require consideration of likely effects on the neighbourhood, including noise levels; clause 65.01 requires consideration of the effect on the amenity of the area; and section 60(1)(e) of the Act requires consideration of any significant effects which the responsible authority considers a use or development may have on the environment. All these considerations mean that the council's decision to include condition 3 in the permit (a condition which was not appealed against by Snowy Hydro at the time the permit was granted) was a reasonable condition to include as a condition that was intended to benefit other properties in the locality.

77 The uncontested evidence is that the power station is adversely affecting the health and wellbeing of Metroll employees and interfering with their ability to work by reason of the emission of noise and vibration.

78 The Metroll building predates use and development of the subject land. It is quite common for a factory in an industrial area to have offices associated with it. The Metroll office is directly opposite the subject land. It is not an unusual use or a super-sensitive use. I consider it is reasonable to expect that even in an industrial zone, a new use or development will take account of the type of use and development that can normally be expected to be found within that type of locality. In the present case this means that any use or development of the subject land for the purpose of a power station should be designed to ensure that a reasonable working environment can be maintained within the Metroll building.

79 One of the issues to be determined at the hearing of the enforcement order application will be what such a reasonable working environment in terms of noise and vibration levels might be. But on the basis of the current evidence, existing noise levels appear to be excessive. This is evidenced not only by the affects being experienced by Metroll employees, but by reference to the noise measurements by Burton and Vipac.

80 Having regard to Tables 1, 2 and 3 set out earlier, all the noise levels in various Metroll offices are either close to the maximum level or exceed the maximum level for background noise levels in those types of offices according to AS2107. As the maximum level is the level at which most people start to become dissatisfied with the level of noise, it is not unreasonable to expect that Metroll employees will be adversely affected by this level of noise experienced in their work place on a continuous and daily basis. The affidavits of the Metroll employees indicate that the noise is having such an effect. Added to this is the fact that the low frequency component of the noise emitted by the power station will tend to increase the subjective perception of the noise by fourfold, which means that the perceived level of noise is likely to exceed the maximum level identified in AS2107 by a much greater extent than Tables 2 and 3 indicate.

81 Vibration levels were measured by Vipac and found to comply with recommendations of relevant standards.[17] Notwithstanding the Vipac measurements and conclusions, there is visible vibration of window glazing and articles within the Metroll building, and vibration can be felt when hands or other parts of the body rest upon certain surfaces. Some of the vibration is transmitted to the Metroll buildings by airborne sound, which is low frequency airwaves that can be felt by the body.[18] These effects are experienced by Metroll employees on a continuous basis and lead me to a conclusion that, notwithstanding the standards referred to in the Vipac report, levels of vibration are in fact adversely affecting the amenity of the Metroll building and people working there.

82 Therefore, my overall conclusion is that, on a prima facie basis, the operation of the power station is having an adverse effect on the amenity of the locality by reason of noise and vibration, and that for the purpose of this proceeding the locality constitutes the Metroll property.

Conclusion on the issue of a serious question to be tried

83 In my view there is a serious question to be tried at the hearing of the enforcement order application. There is a prima facie breach of condition 3 of the permit. The council is of the opinion that the use permitted by the permit is adversely affecting the amenity of the locality by reason of noise and vibration, which establishes a breach on the face of the words used in the condition. But even looking beyond the words to the substance of the complaints by Metroll, there is strong evidence that the amenity of the locality is in fact being adversely affected.

84 Condition 3 of the permit states: "The use permitted by this permit must not, in the opinion of the Responsible Authority, adversely affect the amenity of the locality" (etc). In light of Snowy Hydro's submission about the interpretation of this condition, the question arises whether the Tribunal can substitute its own opinion for that of the responsible authority in deciding whether the use adversely affects the amenity of the locality.

85 Enforcement orders (and I include here interim enforcement orders) are part of the Tribunal's original jurisdiction. In exercising its original jurisdiction, the Tribunal has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under the Victorian Civil and Administrative Tribunal Act, the regulations and the rules.[19] Under the Tribunal's review jurisdiction, the Tribunal has all the functions of the decision maker.[20] Thus there would be no question that if the Tribunal was considering condition 3 in the exercise of its review jurisdiction, it could substitute its own opinion for that of the responsible authority in deciding whether the use is adversely affecting the amenity of the locality. The question is whether the Tribunal can do the same if it is considering condition 3 in the exercise of its original jurisdiction.

86 Condition 3 has been included in the permit for the benefit of persons within the locality.

87 Words such as "in the opinion of the responsible authority" or "to the satisfaction of the responsible authority" are frequently included in planning permit conditions as a trigger for the review rights under section 149 of the Planning and Environment Act 1987. Section 149(1) provides that a specified person may apply to the Tribunal for review of a decision of a specified body in relation to a matter if a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body. The right of review is limited to a specified person, who for this purpose is the owner, user or developer of the land directly affected by the matter. Snowy Hydro would be a specified person in this instance. Reviews under section 149 are not open to third parties such as Metroll.

88 It might be argued that the words "in the opinion of" are not exactly the same as "to the satisfaction of" or "without the consent" or "without the approval", which are the words used in section 149(1)(a) of the Act. However, I consider that this provision must be given a purposive interpretation. The words "in the opinion of" are in the same category as these other expressions and would normally treated by the Tribunal as giving rise to a right of review under section 149.

89 The effect of including these words in condition 3 is to provide the permit holder (Snowy Hydro) with a right of review to the Tribunal in the event that the council decides that the use is adversely affecting the amenity of the locality in some way. In fact, that is what has now occurred.

90 However, if it was the council, as responsible authority, who had applied for the enforcement order, the question is whether the opinion of the responsible authority would be open to challenge within the auspices of the enforcement order proceeding or whether a respondent would need to bring a separate section 149 application to challenge the opinion. I do not consider that if the land user challenged the opinion of the responsible authority as to whether the use was adversely affecting the amenity of the locality in the context of an enforcement order application brought by the responsible authority, that the Tribunal would find it lacked jurisdiction to form its own opinion and make findings about what is, after all, a central element of the case. In my view, it is an inherent aspect of the Tribunal's jurisdiction relating to enforcement orders to make findings about whether the substance of a permit condition (for example) has been breached. The Tribunal's jurisdiction should not be ousted by the inclusion of terms such as "in the opinion of the responsible authority". This would go against the grain of section 97 of the Victorian Civil and Administrative Tribunal Act 1998, which requires that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

91 One of the features of the Planning and Environment Act is that the right to apply for an enforcement order is not restricted to the responsible authority, which has a statutory duty to enforce the planning scheme[21]. It is open to any person to apply to the Tribunal for an enforcement order against any person specified if a use or development of land contravenes the Act, a planning scheme, permit or section 173 agreement.[22] It is one of the objectives of the planning framework established by the Act to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements.[23]

92 If this was an application for enforcement order by the responsible authority and the responsible authority had formed an opinion that the use was adversely affecting the amenity of the locality, I consider it would be open to Snowy Hydro to challenge that opinion at the hearing of the enforcement order application, because this is an issue that is central to the case. It would be most unjust, and would be a proposition likely to be vigorously opposed by Snowy Hydro, were it to be suggested that the Tribunal could not review the opinion of the responsible authority in such circumstances. Therefore, if it would be just and fair to allow Snowy Hydro to contest the opinion of the responsible authority if it was the responsible authority making the enforcement order application, why would the same principle not apply where the person making the enforcement order application is a person for whose benefit the condition has been included in the permit?

93 Of course, it would be possible to reach the same outcome by the convoluted route of the respondent challenging the opinion of the responsible authority by way of a section 149 application or by way of third parties challenging the opinion (or failure to form an opinion) by declaration proceedings. But all these routes are unnecessarily complex. The need to pursue them when the Act has provided a comprehensive enforcement procedure open to anyone is therefore questionable.

94 In my view, having regard to the objective of the planning framework established by the Act and the power conferred on the Tribunal to make enforcement orders, a proper exercise of this power should encompass the opportunity for the Tribunal to independently review assertions that a permit (or the like) has been breached. The Act's objective would be subverted if the Tribunal's jurisdiction could be blocked by the inclusion of terms in conditions such as "in the opinion of the responsible authority". This is not an outcome that I consider is intended by the Act.

95 As events have transpired, I do not now need to make a ruling on this point. The council's decision to form an opinion has obviated this need. However, I consider that the issue of the interpretation of condition 3 is not as clear cut as Snowy Hydro argued. For this reason it is relevant that I have formed the (prima facie) opinion independently of the council's opinion that the operation of the power station is adversely affecting the amenity of the locality.

96 Section 120(3)(a) of the Act requires the Tribunal to consider what the effect of not making the interim enforcement order would be.

97 If I do not make an interim enforcement order, the employees of Metroll will continue to suffer adverse health effects until some resolution to the problems associated with the operation of the power station are found. No one wants to shut down the power station. Metroll only wishes to ensure that noise and vibration are within tolerable limits. What those exact limits might be is a matter for resolution at the enforcement order hearing proper. Even if an enforcement order is made which specifies what limits must be complied with, it may be some time before Snowy Hydro can arrange for Siemens to design and implement the works necessary. At present, I have no indication as to when this might occur. Thus the adverse effects on the health of Metroll employees may continue for an undetermined and possibly considerable period of time if an interim enforcement order is not made.

98 The adverse effects on the health and wellbeing of Metroll employees also means that they are not carrying out their work as efficiently or effectively as they might. This affects the business operations of Metroll itself. This is a further effect of not making an interim enforcement order.

99 On the other hand, if I make an interim enforcement order, Snowy Hydro will suffer financial loss by any constraints on its ability to generate electricity, in particular its ability to draw on large scale electricity generation at short notice, which may affect its ability to cover or enter hedging contracts.[24] It was also suggested that any restriction on Snowy Hydro's ability to operate the power station is likely to ultimately result in higher electricity cost for customers in Victoria and the national electricity market. Further, it may also cause a decrease in volume of electricity supply to the national electricity market, and as a consequence the economy and the community could suffer due to the higher risk of blackouts.

100 I accept that if an interim enforcement order is made which restrains Snowy Hydro's ability to operate the power station, Snowy Hydro may suffer financial loss. No attempt was made to quantify this loss.

101 However, I am not persuaded that in the short term (in other words, for the time an interim enforcement order is likely to operate) a restraint on generating capacity will result in higher electricity costs for consumers or a higher risk of blackouts. If the power station was required to cease operation completely and permanently, there may be a risk of these effects. But I am only dealing with the interim enforcement order at present and it seems likely that a solution will be found which reduces the flow induced effects currently being experienced and thereby reduce the problems associated with the power station.[25]

102 I also note that some of the reasons why the power station has operated much more than anticipated over the 2006-2007 summer period have now ceased. Summer is over and with it the high demands in electricity caused by hot temperatures. Winter, and its high demands, is still a while away. This power station forms only part of Snowy Hydro's portfolio of electricity generation assets and Snowy Hydro has only had the benefit of its operation since December 2006. I am not aware of what proportion or contribution this power station makes to Snowy Hydro's overall electricity generation capacity, but Snowy Hydro is not the only electricity generator in the national electricity market. I therefore do not consider it likely that in the short period during which the power station has been fully operational, it has come to be so important in the national electricity market that some temporary constraints on its operation would seriously give rise to a high risk of blackouts or result in higher electricity cost for consumers.

103 In Bradto Pty Ltd v State of Victoria[26] the Court of Appeal said:

[39] ....we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost always be a factor in the evaluation of the balance of convenience.

104 On the basis of the evidence before me at present, there is a prima facie breach of condition 3 of the permit. In my assessment there is a high probability that the proceeding will be ultimately successful.

105 If I apply the principle identified in Films Rover, Blue Emporium and Bradto relating to what course appears to carry the lower risk of injustice if it should turn out to have been "wrong", then I conclude that an interim enforcement order should be made.

106 In terms of assessing the probability and nature of the harm which each party may suffer in the event that the interim decision is "wrong", [27] in my view there is a 100% probability that the health and wellbeing of Metroll employees will continue to suffer if interim relief is not granted and there is an equally high probability that Snowy Hydro will suffer financial loss if interim relief is granted. There is a lesser probability that business operations at Metroll will suffer through the impaired efficiency and effectiveness of its staff as a result of their headaches, earaches, nausea etc if interim relief is not granted. There is a very much lower probability that the wider community will suffer if the operation of the power station is constrained.

107 It seems to me that the most important competing interests that I must weigh up are those of financial loss compared to human health. I consider it is more important to protect the human health of Metroll employees even though this may result in some financial loss for Snowy Hydro. The adverse health effects are not trivial or easily put up with. They are not theoretical or potential. Rather, they have occurred; they are continuing to occur; and they are likely to continue until the present levels of noise and vibration stop.

108 It is also relevant that these effects are not being experienced by Metroll as a corporate entity but by individuals who work for Metroll and who have no option but to continue attending work each day if they wish to continue their employment.

109 I therefore consider that there is a lower risk of injustice to Snowy Hydro if I make an interim enforcement order and it turns out at the final hearing to have been wrong and no enforcement order is made, than if I refuse to make an order now but at the final hearing an order is made. In the first instance, Snowy Hydro may suffer some diminution in its financial returns for the few months that the interim enforcement order is in operation. In the second instance, Metroll employees will have had to unnecessarily endure several months more of headaches, earaches, nausea and general ill-health in order that Snowy Hydro is not exposed to any diminution in its financial returns. I consider that would be a greater injustice.

110 Section 120(3)(b) of the Planning and Environment Act 1987 requires the Tribunal to consider whether the applicant for an enforcement order should give any undertaking as to damages. Justice Morris in Stonnington City Council v Blue Emporium Pty Ltd said:

[5] ... in my opinion, the specific reference in section 120(3)(b), requiring the tribunal to consider whether the applicant should give any undertaking as to damages, does indicate that the intent of Parliament is that such an undertaking will not always be required. This may or may not be different than the position which would apply in relation to an interlocutory injunction: compare Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318.

111 In the Blue Emporium case Justice Morris did not require the council to give an undertaking. His reasons for this were as follows:

[17] I desire to say something about the question of an undertaking. I do not require the responsible authority to give any undertaking as to damages. The decision in Optus Networks does not decide this question in the context of circumstances where a public authority is under a legal duty to enforce a planning scheme: see, for example, the comments of Charles J at page 334. I hold that the responsible authority is under a duty to enforce the provisions of the Stonnington Planning Scheme: see section 14(a) of the Planning and Environment Act 1987. Further, as I indicated previously, I regard section 120(3)(b) as requiring consideration of whether the applicant should give any undertaking as to damages and hence providing the tribunal with a discretion as to whether or not to require it. In the usual course such an undertaking will be required. But where the applicant is a responsible authority, with a duty to enforce the planning scheme, and particularly where the issues are clear cut and the probability of a final order is close to 100%, the circumstances do allow the tribunal to exercise its discretion not to require such an undertaking. I exercise the discretion in this case.

112 The present case is not a situation where the applicant is a public authority with a legal duty to enforce a planning scheme. Rather, it is a situation where one land owner is seeking to enforce a planning permit condition against another land owner. It is a condition that has been included in the permit for the benefit of land such as the Metroll land, and in seeking to enforce the permit Metroll is seeking to protect the health and wellbeing of its employees. Should it be denied the benefit of an interim enforcement order because it is not willing to give an undertaking as to damages?

113 Snowy Hydro gave no indication of the amount of financial loss it might potentially suffer. Nor did Metroll give any specific reasons why it was not prepared to give an undertaking as to damages. Nevertheless, I consider it is reasonable to infer that the potential financial losses that Snowy Hydro might suffer could be substantial and that any call on the undertaking could have very serious, perhaps even disastrous, consequences for Metroll.

114 Snowy Hydro submitted that there was no good reason why Metroll should not be required to give an undertaking as to damages in this case. It pointed to authority which suggests that it is only in the most exceptional circumstances that an undertaking as to damages before granting interim relief should not be required. I was referred to the case of Blue Wedges Inc v Port of Melbourne Corporation and Anor[28]. That case concerned an application for an interlocutory injunction to restrain the Port of Melbourne Corporation from carrying out trial dredging works in Port Phillip Bay for the purposes of the channel deepening project. In his decision Mandie J said:

[11] In my opinion a fundamental consideration on this application for an interlocutory injunction is that no viable undertaking as to damages is or can be offered by the plaintiff. Such an undertaking is required save in exceptional circumstances. It is convenient to refer to, and I adopt, what was most recently said in that regard in the High Court by Heydon J in Combet v Commonwealth of Australia.[29] I can conceive that in some circumstances an interlocutory injunction might be granted without requiring the usual undertaking as to damages if there was a manifest breach of the law threatened. It might then be in the public interest to grant such an injunction without requiring the usual undertaking as to damages. Likewise if there was a proven danger of irremediable harm or serious damage an interlocutory injunction might perhaps be granted in some circumstances without the undertaking being required.

[12] However in the present case I do not consider that exceptional circumstances have been established. I consider that there is a serious or reasonably arguable question to be tried concerning the alleged threatened breach of s.6(2) of the EEA Act but it is not an open and shut case by any means. There is at least one reasonably arguable answer to the plaintiff's contention. That answer is that, because the Trial Dredging works are the subject of a distinct proposal with a specific and limited purpose, and because they may never be subsumed in the Channel Deepening works (as those works may never proceed), there can be no breach of s.6(2) of the EEA Act when properly construed. There are questions of fact and law, or mixed fact and law, involved, it seems to me, that can only be determined at trial. The plaintiff's case is not so strong or so clear as might support the granting of an interlocutory injunction without the usual undertaking as to damages.

[13] In any event, the balance of convenience does not in my view favour the plaintiff. There is clear evidence of immediate and continuing financial loss to the first defendant and some evidence of likely loss and possibly significant harm, not capable of precise measurement, to the interests of the State if the works were to be stopped pending trial. As against that there is no satisfactory evidence before the Court that environmental or economic damage may be caused by the Trial Dredging works themselves. In that setting, the absence of the usual undertaking as to damages can only fortify the conclusion that the balance of convenience does not favour the granting of an interlocutory injunction.

115 What Hayden J said in Combet v Commonwealth of Australia, and what was referred to by Mandie J in the Blue Wedges case, was as follows:

In my judgement, the Court will almost always decline to grant an interlocutory injunction unless the plaintiff undertakes to the Court to pay any damages which the Court may later assess as necessary to compensate the defendant for any harm caused by the interlocutory injunction in the event that the Court at the final hearing refuses to grant a final injunction. The importance of the undertaking is that without it a defendant ultimately successful at the final hearing would not be able to recover damages for any loss suffered by complying with the interlocutory injunction.

116 The statements in Combet and Blue Wedges were made in the context of High Court and Supreme Court proceedings, not in the context of section 120 of the Planning and Environment Act 1987. They also related to situations where there was a threat of a breach, not a breach which is in existence, which has been occurring for some time and where there is evidence of serious effects.

117 In my view, the words of section 120(3)(b) - "whether the applicant should give any undertaking as to damages" - should not be interpreted as meaning "why the applicant should not give any undertaking as to damages". This would give a different emphasis to the words of the section. I consider that section 120(3)(b) gives the Tribunal a real discretion as to whether the applicant should give any undertaking as to damages and that such an undertaking should not be regarded as tantamount to being mandatory, even though the Tribunal's practice may be to commonly require such an undertaking. Each case must be decided on its merits. Issues such as justice, the public interest, the relative means and roles of the parties, the strength of the applicant's case and whether there is "a proven danger of irremediable hard or serious damage"[30] will all be relevant considerations.

118 I consider that the present case represents the sort of exceptional circumstances referred to by Mandie J in Blue Wedges.

119 The balance of convenience favours Metroll. There is a serious and reasonably arguable question to be tried at the hearing of the enforcement order application. On the basis of the current evidence before me, the application would have a high probability of success. In terms of the adverse health effects being experienced by Metroll employees, there is no evidence that they will suffer irremediable harm but I accept that the health effects are serious. For all these reasons an interim enforcement order is justified.

120 It is a situation though where the potential quantum of the undertaking which might be called upon is so uncertain, but potentially massive, that to require an undertaking as to damages would put interim relief out of the reach of anyone other than possibly the State of Victoria or an applicant with very deep pockets. In my view, it is unrealistic to expect that a company should risk possibly putting itself out of business in order to protect the health and well-being of its employees. It is also unrealistic to expect that, when faced with a clear cut, prima facie breach of a permit, a person should be required to give an undertaking that it would not have the capacity to deliver on in the event that it was called upon.

121 A statement which has been oft-quoted is that, "The remedy of injunction should be available whenever required by justice."[31]

122 As I noted earlier, it is relevant that the adverse effects are not being experienced by Metroll as a corporate entity but by individuals who work for Metroll and who have no option but to continue attending work each day if they wish to continue their employment. I do not consider it is just that their health or wellbeing should be discounted because Metroll, as their employer, is not prepared to given an undertaking as to damages.

123 In these circumstances, which I regard as exceptional, where there is a manifest breach of the permit now occurring that is causing serious harm, I consider the public interest will best be served by making an interim enforcement order even though there is no undertaking as to damages. Therefore I hold that an undertaking as to damages is not required.

124 I do not consider that the orders in the terms sought by the applicant are appropriate as interim relief. I am dealing with an interim enforcement order which will operate until determination of the application under section 114. An order under section 114 may specify noise levels or other standards that use of the subject land must comply with. I am not in a position to make such orders at present.

125 In my view, the most effective relief, which balances the interests of both Snowy Hydro and Metroll in the interim until determination of the application under section 114, is to restrict the operation of the power plant during office hours when the majority of Metroll employees who are being affected by the noise and vibration are at work. This would leave Snowy Hydro free to operate the power station unconstrained at other times. Whilst there may be other Metroll employees on site out of office hours, for example those working in the factory, I understand that they normally wear hearing protection in any event to protect against noise within the factory. This has the additional benefit of protecting against the noise from the power station and no doubt accounts for the fact that affidavits about the adverse effect of the power station on health and wellbeing came only from office staff.

126 There was some discussion about the terms of an order at the second hearing and my proposal is in line with what the parties suggested, although the hours are different.

127 I propose to order that Snowy Hydro stop the operation of the power station between the hours of 8.00am to 5.00pm Monday to Friday (except on public holidays or in the event of an emergency). I will defer commencement for several days to give Snowy Hydro an opportunity to make any necessary arrangements to implement this order.

128 I propose to join Metroll as a party to the applications filed under sections 149, 149A and 149B of the Planning and Environment Act 1987 by Snowy Hydro pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998. I consider that Metroll's interests are affected by these proceedings.

129 At the second hearing Snowy Hydro indicated that it would not oppose Metroll being joined to these proceedings if Metroll was to bear its own costs. I do not consider it is appropriate to make this order conditional in this way. The issue of costs will be reserved overall.

130 Snowy Hydro sought an order for access to the Metroll property for the purpose of conducting tests and undertaking inspections. I will make such an order but extend it to give any party similar leave. Equally, I shall make an order for access to the subject land in the event that any party wishes to take testing or carry out inspections there too.

131 Other procedural orders were requested and I shall make these as appropriate. The responsible authority has made all information which it says is relevant available in response to Practice Note PNPE2 - Responsible Authority Information. It seeks exemption from any orders as to discovery or the like. I agree that it is not necessary for the council to provide further PNPE-2 material in response to each of the applications P1084/2007, P1093/2007 and P1094/2007. However, it is appropriate that the council make discovery in the same way as Metroll and Snowy Hydro.

132 These procedural orders do not apply to Vaughan Industrial Projects Pty Ltd, the owner of the subject land. Vaughan Industrial Projects Pty Ltd was excused from attendance at the outset of the first and second hearings on the basis that no orders will be made against it without notice and its rights to make any submissions were reserved together with costs. The only exception to this is that if Vaughan industrial Projects Pty Ltd wishes to call evidence at the final hearing, it must comply with the Tribunal's order regarding the circulation of witness material.

133 An interim enforcement order pursuant to section 120 of the Planning & Environment Act 1987 is granted and no undertaking as to damages is required.

[1] Two affidavits were filed, one dated 22 March 2007 and a further affidavit dated 27 March 2007.

[2] These applications have been given the following application numbers; P1084/2007, P1093/2007 and P1094/2007.

[3] See Murray v Figge (1974) 4 ALR 612; and Rumpf v Mornington Peninsula Shire Council [2000] VSC 311 at [74], [2000] VSC 311; (2000) 2 VR 69 at 93

[9] According to the VIPAC report: Noise measurements conducted behind the sea freight containers (located in front of the office building) and at the front of the Metroll factory, not shielded by the containers, indicate that there is only slight reduction in noise (2dB) provided by the containers. At the critical low frequencies, the noise reduction is even more negligible. [page 6]

[10] 15 VPR 267; [2003] VCAT 1954

[11] [2006] VSCA 89

[12] [2000] VCAT 653 at [17]

[13] See Marson Constructions Australia Pty Ltd v Hillcrest Manor Pty Ltd [2000] VCAT 29 at [11]

[14] See Marson Constructions Australia Pty Ltd v Hillcrest Manor Pty Ltd [2000] VCAT 29 at [11]

[15] In this respect, it is interesting to note that during the accompanied inspection I observed that noise within the Snowy Hydro office and control building on the subject land was far lower than the noise experienced inside the Metroll building across the road.

[16] See clause 33.03-2 Wyndham Planning Scheme.

[17] Australian Standard AS 2670.2-1990 Evaluation of Human Exposure to Whole-Body Vibration, Part 2: Continuous and Shock Induced Vibration in Buildings (1-80 Hz) and German Standard DIN4150-3 (1999-02) Structural Vibration - Effect of Vibration on Structures. (There is no Australian Standard that addresses structural response to continuous vibration.)

[19] Section 44 Victorian Civil and Administrative Tribunal Act 1998

[20] Section 51(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998

[21] Section 14(a) Planning and Environment Act 1987

[22] Section 114(1) Planning and Environment Act 1987

[23] Section 4(2)(k) Planning and Environment Act 1987

[24] According to the affidavit of Roger Whitby:

Hedging Contracts are financial instruments (as opposed to arrangements under which electricity is physically supplied) between participants in the NEM such as generators and retailers. They typically operate independently of both the NEM and NEMMCO's spot market operation and are therefore not regulated by, or settled through, the NEM. The contracts can be entered into either as long term or short term arrangements that set an agreed price (referred to as "strike" price) for a quantity of electricity that participants can use to offset the financial risk presented by the volatility of NEM spot prices.

[25] I base this conclusion on the PowerPoint presentation about the Seimans' investigations that was to have been presented at the meeting of 23 March 2007 between representatives of Snowy Hydro and Metroll and on the fact that similar gasfired power stations apparently operate elsewhere without causing excessive noise or vibration. However, there was no direct evidence or explanation by Snowy Hydro as to the cause of the noise or vibration complained of.

[26] [2006] VSCA 89

[27]See Stonnington CC v Blue Emporium Pty Ltd [2003] VCAT 1954 at [8]. I do not profess to have a deep understanding of probability theory as discussed by Justice Morris in this case. My expressions of probability are therefore not those of a mathematician but are the more general expressions commonly resorted to by judges and Tribunal members.

[28] [2005] VSC 305

[29] See [2005] HCATrans 459 (29 July 2005) at [1530] to [1645].

[30] See Blue Wedges Inc v Port of Melbourne Corporation and Anor [2005] VSC 305 at [11]

[31] Broadmoor Special Health Authority v Robinson (200) 2 All E.R. 727 at 732. Cited in Bradto Pty Ltd v State of Victoria [2006] VSCA 89 at [34]