Delegate's conduct in refusing to approve the development plans

1. With respect to the application for approval of the development plans, the applicant submitted that, given the delegate's assertion regarding unspecified past 'difficulties' with Middletons and the applicant, a reasonable observer would be concerned that the delegate's previous decision to refuse to approve the development plans might also have been affected by his antipathy. The applicant suggests that this is especially so given the questionable nature of the decision to refuse to approve the plans.
2. The applicant took me through a detailed analysis of the process surrounding the submission of plans and communications with the DPCD assessing officer.
3. I do not consider that this material is relevant to the issue currently before me about apprehended bias. There is no evidence that Mr Hodge was involved with the assessment of the plans prior to receiving the assessment officer's report and recommendation on 6 March 2012. There is nothing in what was said by Mr Hodge on 15 March 2012 that can be logically connected to the assessment process undertaken by the assessing officer.
4. The matters which the applicant complains about concerning the assessment process, such as whether the assessing officer should have communicated with the applicant that the geotechnical report was inadequate or whether the plans should have been referred by DPCD to the various bodies/departments for comment, are not matters that are reviewable in the context of this application. There is no Wednesbury unreasonableness type application for declaration challenging the recommendation of the assessing officer or the decision of the delegate. The substance of the applicant's complaints about the reasons for refusal of the plans (i.e. the adequacy of the geotechnical report; whether the plans adequately address key agency requirements; and whether the noise assessment conditions are complied with) are matters that are reviewable in the context of the development plans application. However, in the context of the bias application, there is nothing that links the outburst by Mr Hodge on 15 and 16 March 2012 about the way in which the applicant requested an extension of time to the permit to the processing of the geotechnical report and development plans by the assessing officer or his action in making the report and recommendations that he did.
5. Equally, there is nothing in the actions of Mr Hodge after he received the report and recommendations dated 6 March 2012 or his decision on 13 March 2012 to adopt the recommendation and refuse to approve the development plans, which can be linked to his subsequent outburst on 15 and 16 March 2012.
6. The applicant emphasised that it had made abundantly clear in its letter to the Minister on 15 February 2012 that time was of the essence and it would do anything to ensure that the development plans were approved and endorsed prior to expiry of the planning permit. Nevertheless, in my view, it is no more than speculation on the applicant's part to submit that:
   • the fact "the Delegate is a public servant acting as the delegate of a Minister only serves to strengthens the possibility that a fair-minded observer might be concerned as to his impartiality";
   • the delegate might be concerned to implement the Minister's view that this development should comply with the new planning controls; and
   • the delegate was looking for reasons to refuse to approve the plans.
7. Likewise, I consider it is no more than speculation for the applicant to suggest that the delegate, knowing how tight the timeframes were, delayed making a decision until 13 March 2012, when it would be too late to change the development plans, and this too was a decision not made on merits, but might have been influenced by the delegate's personal feelings.
8. I do not consider that any fair-minded lay observe would perceive a logical connection between an angry outburst about the way in which an application to extend the permit was made two days later with the delegate's previous decision to adopt the recommendations of the assessing officer to refuse to approve the development plans under the permit.

1. The Woolsthorpe application, which the applicant referred to, concerned another planning permit for a wind energy facility issued to Woolsthorpe Wind Farm Pty Ltd for land at Woolsthorpe in the Shire of Moyne. Mr Alistair Wilson, who is a director of the applicant company, Naroghid Wind Farm Pty Ltd, and who gave evidence in this case, is also a director of Woolsthorpe Wind Farm Pty Ltd. Both Naroghid Wind Farm Pty Ltd and Woolsthorpe Wind Farm Pty Ltd are fully owned subsidiaries of Wind Farm Developments (Australia) Pty Ltd, of which Mr Wilson is also a director.
2. The Woolsthorpe planning permit also required approval and endorsement of development plans and additional materials before commencement of the development. This permit too had an expiry date of 15 March 2012 by which development must be commenced.
3. On 28 February 2012, Mr David Hodge, as the Minister's delegate, approved development plans for the Woolsthorpe wind farm project in accordance with the Woolsthorpe permit subject to conditions. This approval was in accordance with the assessing officer's report and recommendations.
4. Thus, 14 days before the delegate made his decision to refuse the Naroghid development plans, he made a decision to approve the Woolsthorpe development plans with conditions and 14 days later, he confirmed to Moyne Shire Council that the Woolsthorpe works had commenced. Subsequently, there was correspondence with Middletons from the delegate concerning both the Woolsthorpe and Naroghid matters, which was professional, courteous and detached.
5. An application for review under section 149 of the Planning and Environment Act 1987 was lodged with the Tribunal in March 2012 concerning the delegate's decision about the Woolsthorpe development plans. This was followed by an application under section 149B of the Act for declarations that the Minister acted unreasonably and beyond power. The proceedings were resolved by consent and by order dated 22 November 2012, the section 149B declaration proceeding was withdrawn and the section 149 application was allowed with the Minister being directed to endorse certain plans under the permit.
6. The applicant submits that what occurred with respect to the Woolsthorpe permit enabled the development to commence before the permit expired on 15 March 2012. By commencing development before the permit expired, it enabled Woolsthorpe to challenge the conditions imposed on the development plans at the Tribunal. The applicant says that it was expecting similar treatment with respect to the development plans submitted for approval under the Naroghid permit. It submits that the decision by Mr Hodge to refuse to endorse the development plans under the Naroghid permit even with conditions is evidence of his antipathy or bias against the applicant and its solicitors, which was revealed by Mr Hodge's outburst on 15 March 2012.
7. I do not agree with this proposition. I do not consider that any fair-minded lay observer would draw a logical connection between the delegate's approval of the Woolsthorpe development plans with conditions, which enabled development to commence before expiry of the permit, and the delegate's refusal to approve the Naroghid development plans. I do not consider that any fair-minded lay observer would attribute this to bias against the applicant and its solicitors on the part of the delegate.
8. Rather, I find that a fair-minded lay observer is more likely to conclude that the delegate was doing his job in both instances fairly and reasonably, and was properly acting on the report and recommendations of the assessing officer in each case. The difference in outcome was more likely to be attributable to the different facts and circumstances associated with the different permits and development proposals than to any suspicions about bias. There is no basis in logic as to why the delegate would make a favourable decision for one entity and a non-favourable decision for a related entity if the delegate was motivated by bias towards the applicant and its solicitors, who were the same in each case.
9. I consider that the decisions made by the delegate in relation to the Woolsthorpe application militate against any suggestion of bias on the part of the delegate in relation to his decision about the development plans under the Naroghid permit, rather than supporting the allegation of bias.

1. The applicant identifies the abusive and derogatory comments by Mr Hodge on 15 and 16 March 2013 as the conduct which is said to give rise to the apprehension that his decision two days earlier to refuse to approve the development plans and his decision two months later to refuse to extend the permit were tainted by bias.
2. For the reasons given, I find that there is no logical connection between Mr Hodge's words and abusive statements made by telephone and email on 15 and 16 March 2012 and his refusal to approve the development plans under the permit on 13 March 2012. I further find that the different way in which Mr Hodge dealt with approval of the development plans under the Woolsthorpe permit, compared to the Naroghid permit, is not evidence of bias against the applicant, but rather supports the view that the delegate decided both matters on their legal and factual merits. I do not mean by this that the merits of each decision were not open to challenge, but rather that the delegate made a proper decision untainted by bias against the applicant or its solicitors.
3. I therefore find that no fair-minded lay observer would reasonably apprehend that the delegate might not have brought an impartial mind to his decision to refuse to endorse the development plans under the permit.
4. With respect to the delegate's decision on 11 May 2012 to refuse the extension of time under the permit, I find that a fair-minded lay observer would not reasonably apprehend that the delegate did not bring an impartial mind to his decision to refuse the extension because of what he said on 15 and 16 March 2012.
5. I consider that a fair-minded lay observer would regard the outburst by Mr Hodge, although sustained over the course of several telephone conversations and email communications on two days, as an isolated emotional outburst, which has not subsequently been repeated. A fair-minded lay observer would take account of the fact that there is a difference between standards that are expected of a judge or other judicial officer, and an administrative decision maker, such as the Minister's delegate A fair-minded lay observer, having regard to all the circumstances, would be likely to regard the comments of Mr Hodge as rude and unacceptable, but accept that they were triggered by his extreme annoyance about a perceived breach of protocol on the part of the applicant's solicitor. Further, they were primarily directed to the applicant's representatives rather than being personal to the applicant. I find that a fair-minded lay observer would not attribute such an emotional outburst as evidence of bias against the applicant and its solicitors, which was likely to influence the delegate's future decision making about the extension to the extent that he would make that decision other than on its merits.
6. I therefore find that the statements and behaviour of Mr Hodge outlined in Appendix B do not provide grounds for a finding of apprehended bias on the part of Mr Hodge in respect of either his decision to refuse to approve the development plans and other plans under permit No PL-SP/05/0142 or his refusal to extend time to commence or complete development under the permit.
7. The applicant for declarations is therefore refused.

1. Condition 36 of the permit governs the expiry of the permit. It provides as follows:
   1. 36. Notwithstanding other provisions of these conditions, this permit will expire if one of the following circumstances applies:

(a) The development is not started within three years of the date of this permit.

(b) The development is not completed within six years of the date of this permit.

The Minister for Planning may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. The application by Middletons on behalf of the applicant dated 14 March 2012 to the Minister for an extension of time under the permit was made expressly pursuant to section 69 of the _Planning and Environment A_ct 1987. Section 69 of the Act provides as follows:
   1. Extension of time

(1) Before the permit expires or within three months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.

(2) The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Subdivision Act 1988 is to be certified.

(3) If the time is extended after the permit has lapsed the extension operates from the day the permit expired.

1. Section 81 of the Act deals with appeals relating to extensions of time. Section 81(1)(a) provides as follows:

(1) Any person affected may apply to the Tribunal for review of -

(a) a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed;

1. However, the application to the Tribunal to review the refusal to extend time has not been made under section 81(1)(a), but under section 149 of the Act. The relevant portions of section 149 provide as follows:

(1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or 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;

(2) An application for review of a decision referred to in subsection (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.

1. The applicant has applied for review under section 149, rather than section 81(1)(a), because in cases where a permit is issued under the 'call in' provisions of the Act pursuant to section 97F, the provisions of section 81(1)(a) do not apply. This is a consequence of section 97M of the Act, which provides as follows:

Divisions 2 and 3 of this Part and section 149A do not apply in relation to -

(a) an application referred to the Minister under this Division; or

(c) an amendment of a permit issued under this Division.

1. There is no dispute between the parties that the applicant is precluded from making an application for review under section 81(1)(a), which falls within Division 2 of Part 4 of the Planning and Environment Act 1987.
2. For this reason, the applicant has made an application under section 149 of the Act to review the decision of the Minister as responsible authority to refuse to consent to the extension of time under the secondary consent power embodied in condition 36. Although extensions of time are normally dealt with under section 69 of the Act, the applicant submits there is no reason why they may not also be dealt with by way of secondary consent in the same way as many other permit conditions make provision for the giving of secondary consent. The recognised mechanism by which to apply for the review of a decision relating to a secondary consent is by way of an application under section 149 of the Act. The applicant's application for review of the development plans is an example of a decision made under the secondary consent power in condition 1.
3. The applicant further submits that although its application to the Minister for an extension of time on the 14 March 2012 was specifically made under section 69 of the Act, the Tribunal ought to exercise its discretion under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard its failure to specify in its application that it was making an application for extension of time under both section 69 of the Act and the secondary consent provision in condition 36.
4. Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

1. In response to this, the Minister submits that not only is an application for review of an extension of time under section 69 precluded by operation of section 97M, but the reference in section 97M to section 149A should, in fact, be read as a reference to section 149. On this basis, therefore, the Tribunal has no jurisdiction to consider this application for review under section 149.
2. In support of this proposition, the Minister relies upon the circumstances surrounding the introduction of the call-in provisions in Division 6 of Part 4 of the Planning and Environment Act 1987. At the time of their introduction[9], the equivalent of what is now section 149 was included in section 149A of the Act. The Minister submits it is apparent that the intent of section 97M was to make the Minister the final decision maker in relation to all matters relating to the grant, amendment and extension of called-in permits and relating to secondary consents under such permits, and to prevent recourse in relation to any of these matters to the Tribunal. It was submitted that the reference to section 149A in section 97M was an error and should have been a reference to section 149. The Minister invited the Tribunal to interpret section 97M as though it refers to section 149 and therefore excludes application of this provision to the subject permit.
3. I do not accept this submission. These particular provisions have been in operation since 1993 - some 20 years. In my view, there has been more than adequate opportunity for the government to amend the legislation if such an error had been made. The fact that no amending legislation has been passed and no other court or tribunal has made a ruling on the interpretation of section 97M along the lines urged by the Minister, lead me to the conclusion that there was no error and it would be most unwise to give the provision anything other than its plain ordinary meaning.
4. On the fact of it, there is no ambiguity in section 97M. There is an express reference to section 149A, not section 149. There is nothing in the Act to imply that this provision does not mean what it says or that the reference to section 149A means something else. There is nothing inherently contradictory or unworkable in excluding the application of section 149A to call-in permits whilst not excluding the application of section 149. No injustice or absurdity would result.
5. I agree with the applicant that section 149 is a carefully drafted section that provides specific and limited review rights in respect of a specific and limited range of decisions. As written, section 97M exempts the vast majority of Ministerial decisions in respect of call-in applications and permits, including the crucial decision to grant or refuse a permit, from review by the Tribunal. There is no absurdity in Parliament restraining review of what might be perceived as the most important decisions in respect of a permit whilst still authorising review in respect of decisions made under that permit.[10] There are many decisions that must be made under permits, including the subject permit, by way of secondary consent. With respect to the principal decision of whether or not to grant a permit in the first place, Division 6 of Part 4 sets up a type of review process in the form of a Panel,[11] although the final decision rests with the Minister. There is no alternative review mechanism, such as a Panel, set up for the numerous decisions that must be made by way of secondary consent under a call-in permit. It is reasonable to assume that Parliament decided not to duplicate the existing review mechanism of the Victorian Civil and Administrative Tribunal for such decisions. On this view, the fact that section 149 is not excluded under section 97M it is therefore not anomalous.
6. In Harvey v Mutsaers[12], the Court of Appeal considered whether clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 is reasonably open to a construction which would limit its operation to an extent that, construed literally, its terms do not convey. This was a provision that was first enacted in 1991. Having regard to its history, the Court found it is not possible, if it is any longer necessary, to satisfy the tests for reading words into a statute which are not there, saying:

{25} ...One cannot say from a consideration of the provisions of the Act read as a whole precisely what was the mischief which was sought to be remedied. It is not clear that the drafter and Parliament by inadvertence overlooked and so omitted to deal with an eventuality which the more limited operation of the clause would achieve. And it is certainly not possible to state with certainty what are the additional words which the drafter would have inserted if his or her attention had been drawn to the omission before the Bill passed into law.

1. Similar comments might well be made in the context of the present case and the worthiness of the Minister's submissions about reading into section 97M a reference to section 149, rather than section 149A. Just as the plain meaning of clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 has been relied upon in many cases, so too has the power to review secondary consent decisions made under a call-in permit pursuant to section 149 been accepted by both the Tribunal and the Minister in previous cases. For example, in the Woolsthorpe case[13], the Minister consented to orders being made in a section 149 application about the approval of development plans.
2. I therefore conclude that an application for review of a secondary consent decision under a call-in permit pursuant to section 149 of the Planning and Environment Act 1987 is not excluded by operation of section 97M of the Act. I find that section 97M does not exclude the application of section 149 of the Act to call-in permits.

Clause 62 of Schedule 1 Victorian Civil and Administrative Act 1998

1. As earlier noted, the application for an extension of time was made to the Minister under section 69 of the Act, not the secondary consent provision of condition 36.
2. The Minister suggested that it was not open to the Tribunal to exercise its power under clause 62 of Schedule 1 to disregard this failure because it was not a failure to comply with a planning enactment or any other enactment.
3. In my view, such an approach disregards the way in which clause 62 has been used to enable the Tribunal to resolve planning issues which arise in the community and to resolve them according to the merits of the case.[14] It is also contrary to the direction given to the Tribunal in section 97 of the Victorian Civil and Administrative Act 1998 that:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

1. If it was open to me, I consider it would be appropriate to exercise my discretion under Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard the failure of the Applicant to specify that it was making its request for an extension of the permit under condition 36 in addition to section 69 of the Act on the basis that it is in the interests of justice to do so. However, I do not consider it is necessary to make a definitive ruling on this point.
2. I find it is in the interests of justice to enable the Tribunal to consider the application for review on its merits, including whether, in fact, the secondary consent provision in condition 36 operates separately to section 69 and gives rise to a different form of review under section 149 as distinct from section 81(1)(a) of the Act.
3. There is no statutory requirement to specify in a request to extend time pursuant to what provision the request is made, nor do the words of condition 36 make this a requirement. All that section 69 and condition 36 require is that a request be made within a certain time. If no reference had been made to section 69 in the request, I find there would still have been a valid request. In my view, it would be unfair and contrary to the provisions of section 97 of the Victorian Civil and Administrative Act 1998 to deny the applicant a decision on the merits of its application for review. If the application for review is to be refused on jurisdictional grounds, it should be based on something more substantial than the wording of the solicitor's letter to the Minister on 14 March 2013.

1. I note that an application for review under section 149 must be made within 28 days after the day on which the decision is made.[15] The decision to refuse an extension of time was made on 11 May 2012. However, the extension of time application (P2043/2012) was not lodged with the Tribunal until 10 July 2012, which is more than 28 days after the decision. In the circumstances, I consider that an extension of time for commencement of the proceeding should be granted.

Is there power to extend time under the permit by way of secondary consent?

1. A key issue in this matter is whether condition 36 provides the Minister with the power to extend time limits by way of secondary consent independently of any power under section 69 of the Act.
2. The words of condition 36 expressly give the Minister power to extend the periods referred to in the condition if a request is made in writing before the permit expires or within three months afterwards. Section 149 provides that a specified person may apply for the review of "a decision of a specified body in relation to a matter if...a permit contains a condition that the matter...must not be done without the consent or approval, of the specified body".
3. In EcoResorts Australia Pty Ltd v Yarra Ranges Shire Council[16], the Tribunal was required to consider a similar power to extend time in a provision of the Yarra Ranges Planning Scheme. It was submitted in that case that the relevant provision of the scheme provided the responsible authority with the discretion whether or not to approve an extension of time. It did not provide that something must not be done without the consent of the responsible authority. Hence, it was submitted, section 149(1)(a) did not apply and the Tribunal did not have jurisdiction.
4. The Tribunal found that:

[10] The provisions of clause 2.9 of Schedule 2 of the Special Use Zone in the Yarra Ranges Planning Scheme have a similar effect to a planning permit in so far as they confer certain rights to undertake specified use and subdivision. They require a permit for development for the purposes authorised by this clause and they also require that development must be carried out within certain time limits unless the responsible authority consents to an extension of time. An alternative way of expressing the effect of clause 2.9 is to say that development must not be carried out outside the time specified without the consent of the responsible authority. I consider that the provision therefore comes within the ambit of the provision in Section 149(1)(a) of the Act relating to whether a matter must not be done without the consent of the specified body.

1. Comments made in EcoResorts about the ambit of section 149 offering a general opportunity for review of matters lying outside the opportunities for review offered by other provisions of the Planning and Environment Act 1987 have since been qualified to make it clear that section 149 is not a general provision for review.[17] In subsequent cases, the Tribunal has said it is necessary to characterise the type of consent required under the provisions of a planning scheme or permit to ensure that the consent is one that is reviewable within the terms of section 149.[18]
2. In Deakin University v Whitehorse CC[19], the Tribunal said:

[45] In my view, section 149 establishes a broad and flexible mechanism for resolving disputes. The dispute resolution mechanism offered by section 149(1) cannot be extended beyond the ambit of its terms, but on the other hand, there is no justification for constraining its operation unnecessarily.

[46] Deakin referred me to the comments of the High Court in Hillpalm Pty Ltd v Heaven's Door Pty Ltd[20]. The High Court supported the principle of amply construing the jurisdiction and powers conferred by statute on a superior court of record within its defined jurisdiction. I am mindful of the caution urged by the council that this was a decision involving New South Wales legislation and that the New South Wales Land and Environment Court is a different type of body to the Victorian Administrative Appeals Tribunal. Nevertheless, this does not detract from the general principal endorsed by the High Court in Hillpalm as expressed in Owners of "Shin Kobe Maru" v Empire Shipping Co Inc[21] that:

"It is quite inappropriate to read provisions conferring jurisdiction granting powers to a court by making implications or imposing limitations which are not found in the express words."

1. In my view, there is no reason to construe condition 36 in a different manner to any other condition. Condition 36 does two things:
   • It specifies when the permit will expire. Section 68 of the Act specifically contemplates that permits may specify the times when a permit may expire.
   • It gives the Minister power to extend time by way of secondary consent. The condition provides:

The Minister for Planning may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

1. These words have a meaning and a purpose. In my view, there is no reason why they should not be given the same meaning and purpose as where similar words appear in other conditions giving the responsible authority (or some other body) power to extend a time period or to otherwise change something set by a condition, such as hours of operation or numbers of patrons. There is nothing in sections 62, 68 or 69 of the Act to say that a condition in a permit cannot govern when a permit will expire or that any time specified in such a condition may not be extended with the consent of the responsible authority.
2. The Minister submitted that a permit is a right created under the Act for a finite period, capable of extension. The extension of that right can only be done under the Act which creates the right not under the instrument which embodies that right. Condition 36 is in the nature of a note explaining how something is to be done rather than an operative provision in its own right.
3. I disagree with this submission. Whilst section 68 deals with when a permit expires, it does not cover all situations. For example, it does not deal with the situation where the permit provides that a use must cease within a specified time, although section 62(2)(c) clearly contemplates that this may be provided for under a permit. There have been cases before the Tribunal where a permit has provided for a use to cease by a certain date, with power given to the responsible authority to extend the period. An application for review by the permit holder against a responsible authority's refusal to extend the time for the use to continue was dealt with under section 149 of the Act.[22]
4. Section 69(2) only provides that the responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed. It is silent about an extension of time for a use to be completed. Likewise, sections 81(1)(a) and 85(1)(f) are similarly limited. An extension of time to complete a use can therefore only be dealt with by way of condition and the only opportunity to review a decision about such an extension of time (if there is power to extend by way of secondary consent) is under section 149.
5. Section 62 sets out what conditions can be put on permits. In addition to those conditions which must be included under section 62(1), section 62(2) provides that the responsible authority may include any other condition that it thinks fit. Sections 62(4), (5) and (6) temper that wide power, but do not constrain the type of condition embodied in condition 36.
6. In my view, the ordinary principles of interpretation require meaning and effect to be given to all the words of a condition wherever possible. There is no difficulty in giving meaning and effect to the words of condition 36. There is nothing in the Act that would suggest the condition giving power to the Minister to extend time under the condition is unlawful or only to be used where section 69 does not apply.
7. With respect to whether the consent is one that is reviewable within the terms of section 149, I find that it is.
8. When determining whether a condition falls within the ambit of section 149, it is important to focus on the real and substantive purpose of the condition. Section 149(1)(a) specifies that for a specified person to be able to apply to the Tribunal for review of a decision, a matter must either be -
   • Done to the satisfaction of a specified body; or
   • Must not be done without the consent or approval of the specified body.
9. In EcoResorts, the Tribunal characterised the planning scheme provision in that case as effectively saying that the development must not be carried out outside the time specified without the consent of the responsible authority.[23] I consider that condition 36 can be characterised in a similar way - the permit will expire within the time specified except with the consent or approval of the Minister to an alternative time.
10. Therefore, I find that the real and substantive purpose of condition 36 is to give the Minister power to consent to or approve an extension of time within which the permit will expire. As such, a decision to refuse to give consent or to approve an extension of time is a decision that may be reviewed under section 149.
11. I further find that the right of review under section 149 exists independently of any power under section 69 of the Act. As a result, I find that I have jurisdiction to consider the decision of the delegate to refuse to extend time under the permit on the merits of the case.

1. I come now to consider the merits of the application for review. The Tribunal will usually consider the guidelines set out in Kantor v Murrindindi SC[24] in deciding whether to exercise discretion to extend time. I consider that these guidelines are equally applicable whether discretion is being exercised under section 69 or section 149 of the Act. The guidelines can be summarised as follows:
   • Whether there has been a change of planning control or planning policy.
   • The probability of a permit issuing should a fresh application be made.
   • The total elapse of time.
   • Whether the time limit originally imposed was adequate.
   • Whether the landowner is seeking to warehouse the permit.
   • Intervening circumstances.
   • The economic burden imposed on the landowner by the permit.

Has there been a change of planning control or planning policy?

1. As outlined earlier, there has been a significant change to the planning controls and planning policy regarding wind energy facilities since the permit was granted.
2. One of the changes has been the introduction of transitional arrangements in clause 52.32-7. This clause makes it clear that existing permits for wind energy facilities issued before 15 March 2011 will not be extended for the commencement of the development beyond 15 March 2012. There is a clear legislative intention that existing permits may be acted upon without needing to comply with the new planning controls and policy, but after 15 March 2012 the new regime will apply. Existing permits will not be extended beyond 15 March 2012, providing a clear demarcation between the application of the old policy framework and the new one.
3. The applicant submitted that I am not bound by the transitional arrangements in clause 54.32-7. I do not need to rule on this submission. However, the policy intention evident in clause 52.32-7 is relevant in exercising my discretion about whether to grant an extension of the permit.
4. The significant changes to the planning controls and planning policy, and the clear legislative intent in clause 52.32-7, are factors that weigh against an extension of time.

Would a permit issue should a fresh application be made?

1. It is unlikely that a permit for the same development on the same conditions would be granted today if a fresh permit application were made.
2. The prohibition on turbines located within two kilometres of an existing dwelling, unless there is evidence of written consent of the owner at the time of the relevant application, would mean that the current proposal and turbine layout could not be approved due to opposition from a number of landowners within two kilometres who do not consent due to concerns about noise and visual amenity. Ms Angela Molloy is one such owner who gave evidence on behalf of the Minister.
3. In addition, there are new noise controls that now apply. This means that any permit issued today would have different conditions setting noise standards with which the facility must comply compared to the current noise standards set out in condition 18.
4. This is a factor that weighs against an extension of time.

1. The permit was issued on 10 August 2006. The time for commencement has twice been extended and now expires on 15 March 2012. The applicant has therefore had a total of 5.5 years within which to get its development plans approved and commence construction.

1. A wind energy facility is a major infrastructure project with many detailed development plans to be prepared and investigations to be undertaken before development can commence. I consider the complexity of the secondary consent approval processes under the permit and the work required in order to commence development would have been adequately catered for in the original time limit of 3 years to commence and 6 years to complete. The extensions of time so that the applicant had 5.5 years to commence development means that, in my opinion, the total time limit imposed was entirely adequate.

1. The concept of warehousing a permit implies that a landowner is seeking to keep alive a permit without necessarily intending to act upon it. There is no evidence in the present case that the applicant is seeking to warehouse the permit.

1. Mr Alastair Wilson gave evidence on behalf of the applicant to the effect that the development of Naroghid wind energy facility was significantly affected by legislative and policy uncertainty around the Federal Government's renewable energy target until June 2010. Once these issues were resolved, the applicant began preparing the plans which had to be approved prior to development commencing.
2. In my view, whilst the legislative and policy uncertainty referred to, and consequently the financial implications for the applicant, may be good reasons why the applicant has chosen not to commence development, these circumstances would not have inhibited the applicant from preparing the necessary development plans under the permit in readiness to commence construction if and when the legislative and policy uncertainties were resolved.
3. The real dilemma that the applicant has found itself in is that it has left the preparation of what are very complex plans to the last minute. Rather than taking account of the criticisms of the panel about the work underpinning the initial permit application to heart and working to resolve issues, which the panel had concerns about, it has done very little until the expiry date has loomed.[25]
4. A prudent applicant, being aware of the shifts in Government policy about wind energy facilities and changes to the planning scheme, would not have left it until the last minute to begin consultation with relevant authorities and preparation of the development and other plans required under the permit.
5. It appears from the evidence of Mr Wilson that attention was focused on approval of the development plans for the Woolsthorpe project ahead of the Naroghid project with the intention that the Woolsthorpe plans would be used as the basis for the Naroghid project, with necessary changes. Unfortunately for the applicant, this strategy did not work because DPCD took a different view about the plans for the two projects. Whereas it was prepared to approve the Woolsthorpe project plans with conditions (which were subsequently modified), it was not prepared to follow the same course of action with the Naroghid project.
6. The applicant was very critical about the DPCD process in considering the draft plans and their refinement. However, I do not consider that this is a reason why the permit should be extended. It was up to the applicant to prepare the necessary plans and undertake the consultation required under the permit and submit them in time to resolve any disputes before the permit expired. Instead, the applicant assumed that DPCD would adopt a similar course of action in terms of approving the plans with conditions, which would enable it to commence construction before the permit expired and debate the conditions later by way of a review of the decision about the development plans, as occurred with the Woolsthorpe project. The very tight timelines left the applicant no time to modify plans or seek a review of the decision to refuse them before the permit expired. This was the doing of the applicant, not DPCD. If the applicant had submitted the plans with time to spare and felt that the Department officers were taking too long to assess them, it could have lodged an application against failure under section 149(1)(d) of the Act, as occurred with the Bald Hills wind farm project.[26]

1. The Naroghid Wind Energy Facility had an estimated cost in 2006 of 63 million dollars. According to Mr Wilson, Wind Farm Developments Pty Ltd (of which the applicant is a fully owned subsidiary) has expended in the range of 2 million dollars to date to facilitate the development of the Naroghid project. A proportion of this cost relates to preparation of the development plans, although it includes many other costs as well.[27]
2. Having regard to the overall cost of the project, the costs associated with preparing the development plans are a relatively small proportion of the total cost. The conditions of the permit, which must be complied with, are detailed and require additional studies and technical assessments, but they do not impose an unduly onerous or expensive burden on the applicant having regard to the subject matter of the permit and the overall cost of the project.
3. I do not consider that the economic burden imposed on the landowner by the permit in having to comply with the conditions was so onerous that the time available for compliance was inadequate or that an extension of a permit on this basis is otherwise justified.

1. Taken together, a consideration of this application against the Kantor guidelines do not support an extension of the permit.
2. The applicant submitted that the Kantor guidelines are no more than that - guidelines. There are other factors that would support an extension of time. This is not a case where there is a clearly expressed policy position that the proposed development would be inappropriate for the subject land. On the contrary, the applicant submits that the only matter which stands in its way is the subjective views of residents within 2 kilometres. It says that it is not correct to say that the wind farm is prohibited by virtue of clause 52.32. The true position is that it is simply not known whether the wind farm would, or would not, be prohibited, since that question can only be answered at the time a fresh application were to be made. The Tribunal can only speculate as to whether or not landowners will give their consent. If they do, a new application would not be prohibited. If it is not prohibited, then, on the basis of the material before the Tribunal, it should be concluded that it would be worthy of a permit.
3. The applicant also submitted that to refuse to extend the permit would mean that the applicant would suffer a significant financial loss.
4. I agree with the applicant that it is not possible to be definitive about whether a permit would issue should a fresh application be made, but that is not what the guideline says. It refers to the probability of a permit issuing and, for the reasons I have given, I do not consider it is likely that this same permit for this project on these conditions would be likely to be issued under the current planning controls and planning policy. Although the applicant argues that it would be neither a just, nor a fair outcome to require this project to be resubmitted so that a single, disaffected landowner (Ms Molloy) can prevent it going ahead, that is a criticism of the policy framework that now exists, which I am not in a position to disregard.
5. The fact is that the policy framework for wind energy facilities has changed. The applicant has had plenty of time within which to get its development plans approved and undertake the necessary consultation with relevant authorities in order to be in a position to commence construction before the permit expired if it suited the applicant to do so based on its financial position and assessment of the economic worth of the project. The applicant has not done so and I consider it cannot blame the Department, the Minister or the Minister's delegate for this.
6. These comments do not reflect upon the merits of the development plans or the adequacy of the reasons for their refusal. These are matters to be dealt with in the context of the development plans application (P1061/2012) if it proceeds. Rather, these comments are made solely in the context of the Kantor guidelines about intervening circumstances and the adequacy of time limits imposed by the permit.
7. In Kantor, Ashley J explained the rationale for imposing time limits on planning permits:

Development would not likely be facilitated by a permit in respect of which no time for expiry was fixed, and which then lay dormant for a protracted period. Indeed, in some instances development - for example, of adjoining property - might be impeded by the existence of such a permit. Moreover, under the Act development is to be facilitated in accordance with the objective of fair, orderly economic and sustainable development of land. Grant of a permit without any period within which action to implement it need be taken would run counter at least to the notion of orderly development. Again, it is apparent that planning policy is not set in stone. Grant of a permit for use or development which had no expiry date would unnecessarily open up the prospect of delayed use or development at odds with changed planning policy...[28]

1. Planning permits are granted for specific proposals to be undertaken within a specific time frame. They are not intended to be a guarantee of adding value to land on an ongoing basis. For this reason, all planning permits are subject to expiry provisions either as specified in the permit itself or under the Planning and Environment Act 1987.
2. Permits grant rights to use or develop land that continue for the life of the permit notwithstanding there may be changes to the planning controls. However, the expiry provisions mean that the ongoing appropriateness of permits can be re-evaluated from time to time in the light of changed circumstances and they also prevent permits from becoming stale. There is opportunity to extend a planning permit even if the use or development may now be prohibited, but the appropriateness of doing so must be weighed against a range of criteria. The Supreme Court in Kantor's case has set out a summary of what are generally accepted to be the criteria that should be considered.
3. In the present case, I find that the Kantor criteria do not support an extension of the permit and I am not persuaded there are any other factors that would outweigh this finding. As a result, I have concluded that the permit should not be extended.
4. The applicant will need to make a fresh application, which responds to the current planning controls and planning policy framework, if it wishes to proceed with the Naroghid wind farm project.

[1] [2000] HCA 63

[2] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [7]

[3] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [8]

[4] For example, Damjanovic v Sharpe Hume & Co [2001] NSWCA 407; Keating v Morris & Ors [2005] QSC 243

[5] See Johnson v Johnson [2000] HCA 48 at [53]; Galea v Galea (1990) 19 NSWLR 263 at 279

[6] R V Carter, Ex parte Gray [1991] TASSC 97 at [140]

[7] Willis v Magistrates Court of Victoria (1996) 89 A Crim R 273 at 282 - 286

[8] [2000] HCA 3

[9] By the Planning and Environment (Amendment) Act 1993

[10] See discussion in Harvey v Mutsaers [2012] VSCA 69 at [25]-[26]

[11] See section 97E and 97F of the Planning and Environment Act 1987

[12] [2012] VSCA 69 at [25]

[13] Woolsthorpe Wind Farm Pty Ltd v Moyne SC [2012] VCAT 1693

[14] Rumpf v Mornington Peninsula SC (2000) 2 VR 69, [2000] VSC 311; Schneider v Borrondara CC [2004] VCAT 642; Harvey v Mutsaers [2012] VSCA 69

[15] Section 149(2) Planning and Environment Act 1987

[16] [2004] VCAT 1190

[17] Casey City Council v Dennis Family Corporation [2007] VSC 238

[18] Deakin University v Whitehorse City Council [2009] VCAT 134

[19] [2009] VCAT 134

[20] [2004] HCA 59, in particular [47] and [83] - [85]

[21] (1994) 181 CLR 404 at 421. See other authorities also quoted in Hillpalm at [2004] HCA 59 footnote 16.

[22] Application P1889/2011, Transpacific Waste Management Pty Ltd v Kingston CC & Ors [2012] VCAT 693 at [14] - [16]

[23] EcoResorts Australia Pty Ltd v Yarra Ranges SC [2004] VCAT 1190 at [10]

[24] (1997) 18 AATR 285

[25] The Panel was critical about the adequacy and quality of plans in support of the permit application. although it approved the proposal, the need for additional work and consultation was deferred to the stage of endorsement of plans under the permit.

[26] Bald Hill Windfarm Pty Ltd v Minister for Planning [2012] VCAT 1092

[27] Affidavit of Alastair Wilson sworn on 29 January 2013 paragraphs [179-190]

[28] (1997) 18 AATR 285 at 313