Plaintiff v Defendant

3 For present purposes it is sufficient to say that the starting point is the identification of a potentially vitiating error of law in the Tribunal's decision.

4 The Tribunal had before it an application for a planning permit in respect of a quarry in the hill country of Strathbogie Shire.

5 It accepted that the site was potentially suitable for a quarry; that such use was favoured by relevant planning policy and that traffic safety and landscape impacts had been satisfactorily addressed by the applicant so as not to warrant refusal of the application.

6 It went on to conclude, however, that the proposal was materially deficient in a number of respects and should not be approved. More particularly, it found:**

(a) That despite amendments to the design of the proposed storage dam and to the drainage layout, the design did not accord with ground levels inspected on the site. In particular the Tribunal was not persuaded proposed drainage diversion lines would function correctly in the north west portion of the works;

(b) The proposed dam was inadequate for its dual function as a collector of run-off for sediment treatment purposes and as a storage of water supply;

(c) The proposed dust suppression measures were inadequate because they were not supported by a proper water balance calculation demonstrating that there would be adequate water supply for this purpose;

(d) The applicant had failed to show acoustic impacts on the surrounding area would be acceptable; and

(e) Although proper consideration had been given to providing an off-set for the loss of native vegetation consequent upon the establishment of the quarry, it had not been demonstrated Blackfellows Head Creek and Seven Creeks would be adequately protected from run-off. Seven Creeks is a waterway of national significance and the Tribunal concluded at [57]:

1. The problems we have identified in the previous section concerning the operational aspects of the quarry site, do not reassure us that the potential impacts on the aquatic habitat will be within acceptable bounds. We emphasis that this is not a 'normal' site. Because of the proximity to, and potential impacts on, habitat for three critically endangered and listed fish species, there can be no risk of polluted runoff reaching the steam environment. We are not convinced that the permit applicant, and the primary consultant engaged to obtain necessary approvals, fully comprehend this necessity. While it does necessarily rule out a quarry on this site, it does require a much more sophisticated approach to the layout and operational aspects than has been demonstrated to date.

7 The first question of law agitated on behalf of the applicant is as follows:

1. Was the Tribunal required to provide the Appellant an opportunity to address new evidence that the Tribunal obtained directly during its site inspection conducted on 17 August 2007 and which the Tribunal ultimately considered to be "fatal to the application" in order to afford the Appellant natural justice and procedural fairness? (see paragraph 40 page 12 of the VCAT decision).

**8 The applicant complains that as a matter of procedural fairness, the Tribunal should have advised the parties of the observations made by it on its view of the site which it regarded as demonstrating a discrepancy between the proposed drainage diversion line system shown on the application plans and the topography on the ground. The view in question was conducted in the absence of the parties between the initial hearing in July and the final day of hearing on 20 August 2007.

Our site inspection however proved fatal to the application when we observed that the proposed diversion drain around the northernmost stockpile area did not accord with our observations of ground levels. In particular we observed a subdued, but nevertheless pronounced drainage line entering from the north-west corner of the site and passing through the proposed stockpile area that was not indicated on the site plans. We have little confidence that the proposed diversion lines would function correctly given these conditions.

**10 These observations were not put to the applicant. The applicant's position is that the relevant drainage line is shown on the plans and that the manner in which the proposed drain and bank across it addressed the topography was not put in issue at the appeal as a material defect of the design.

11 The respondents accept that these circumstances give rise to an arguable question of procedural fairness.

12 The second question of law agitated by the applicant is as follows:**

1. In arriving at the conclusion to refuse the Application for Review on the ground that "it was not the responsibility of the Tribunal to redesign" the proposal, did the Tribunal misconstrue the ambit of its discretion, by failing to afford the Appellant an opportunity to provide an amended design to address the Tribunal's concerns as requested by the Appellant.

13 It is apparent that the Tribunal regarded the application as fundamentally flawed. The passage in its decision complained of is to be found in paragraph [44] which is as follows:

1. It is not for this Tribunal to re-design this proposal. Given the sensitivity of the environment to be protected, we would have expected some form of primary treatment to reduce or remove sediment before storage for re-use. Such a design should be supported by recognised hydraulic and water treatment design methods. While we acknowledge assertions put by Mr O'Brien that a wetland design and revised dam design could be produced to address these issues, they were not part of the amended application. The applicant had plenty of time to address these issues. We do not accept Mr Dunn's response that he relies on the Department of Primary Industry (DPI) to inform him of the issues. It is clear to us from reviewing the draft Work Plan and Mr Natoli's evidence that DPI's review of this draft Work Plan is limited to on-site operational matters. In this day and age, it is beholden on the proponent to assess the potential opportunities and constraints of a proposal having regard to the range of available information. None of these issues should have been lightly treated or come as any surprise. To assert otherwise says much about the approach taken in this application. In short we found the application sadly lacking in recognition of these needs or able to provide us with sufficient confidence that they would be dealt with by secondary consent if a permit were to issue.

**14 In my view once deficiencies of the type stated were identified it was a matter for the Tribunal in its discretion to form a view as to the appropriate response. Although the Tribunal may in appropriate circumstances proffer to an applicant the opportunity to submit an amended application, an applicant does not have a right to continual amendment of a manifestly defective application. I am not persuaded that question 2 of law is arguable. The Tribunal's reasons articulate an entirely rational basis for the view that the defects in issue required a substantial redesign properly accommodated by a fresh application.

15 The third question of law agitated is as follows:**

1. Whether or not the Tribunal erred in law in failing to afford the Appellant natural justice and procedural fairness in circumstances where the Applicant sought the opportunity either at a resumed or adjourned hearing to call two additional expert witnesses, being an acoustics expert on the issue of noise, and a hydrologist on the issue of the dam design, in circumstances where the Tribunal had indicated to the Applicant's counsel that:

(a) there was no need for additional acoustic evidence because the distance of separation from the extractive industry operations was double what was required (see Transcript 26/7/07, pages 489, line 1 to 491, line 23), yet subsequently found that the lack of an acoustic assessment was "inadequate" given not only the proximity of the dwellings, but also the fact that the work plan focuses largely on blasting noise (see VCAT decision paras 47 to 49).

(b) the Tribunal had sufficient information to form a view about matters of water management, stormwater management and water quality management and the like for this proposal, so that there was no need for the Applicant to submit a further expert peer review in relation to hydrology issues (Transcript page 586, lines 8 to 20), yet subsequently found that the Applicant's assessment of these issues had been inadequate (see VCAT decision paras 41 to 46).

**16 It can be seen that these grounds are formulated by reference to statements made by the Tribunal during the course of the hearing. I have formed the view that if leave to appeal be granted with respect to question 1, then leave to appeal with respect to these additional matters of procedural fairness should also be granted.

17 Question 4 of law agitated by the applicant is as follows:**

1. In the absence of any expert acoustic evidence called by any party did the Tribunal err in placing an evidentiary burden on the Appellant to call acoustic evidence to rebut an assertion of perceived noise impacts, rather than concluding that it was for those parties (namely the objectors and the Council) who contended for such impacts to first call sufficient evidence to support such contentions, in order to shift any evidentiary burden onto the Appellant to rebut these contentions?

**18 This question postulates an error with respect to the evidentiary burden concerning the assessment of acoustic impact. In my view this ground is unarguable. The question of the fairness of the course taken with respect to acoustic evidence is raised by the previous question 3. Insofar as question 4 is concerned, however, if the Tribunal was not persuaded by the evidence before it that the acoustic impacts of the proposed quarry would be acceptable, it was entitled to so find and bound to consider its conclusions having regard to the public interest in such finding, rather than the adversary principles for which the applicant contends.

1. Whether or not the Tribunal misconstrued the relevant tests of Net Community Benefit and Sustainability in relation to the relevance of the proposed offset dedications and creek fencing proposed by the permit applicant and failed to have regard to the evidence of Mr Mueck that the net impact on the trout cod population by the increased offsets and proposed wetland was likely to be positive or at least "not negative" as a result of the approval of the proposal.

20 The fifth question of law is premised in part upon footnote 9 at page 16 of the Tribunal's decision.

An issue raised at the hearing, but one not directly impacting on this proposal is the existing practice of allowing cattle to graze unconstrained right up to and within the flowing Blackfellows Head Creek. We are amazed that in 2007, after decades of information disseminated to land holders about protecting the riparian environment to minimise soil erosion, improving water quality and quantity in streams and retaining and re-establishment of riparian vegetation and habitats, that some landowners are still allowing uncontrolled access to streams. Even aside from the environmental issues we have already discussed, fencing off and limiting stock access to the riparian zone has major land management benefits.

**21 I do not accept that it is arguable that the Tribunal was bound as a matter of law to take a different view of the issue referred to in the footnote from the view which it took. Further, when the decision is read as a whole, I do not accept that it is arguable that the Tribunal failed to apply the underlying concepts of Net Community Benefit and Sustainability in reaching its conclusion. I have already set out the Tribunal's conclusion at [57] concerning potential impacts on aquatic habitat. This conclusion can be regarded in part as founded upon its conclusions as to the deficiencies in the proposed hydraulic and water treatment design methods identified at [44] of the decision (also set out above). In my view it is plain that the Tribunal regarded the proposal as being both independently and cumulatively flawed in a number of respects including specifically the fundamental necessity to take further steps to protect the habitat of critically endangered and listed fish species.

22 The above conclusions present the Court with a difficult decision as to whether leave should be granted. In Re Refugee Review Tribunal & Anor; Ex parte AALA[2] McHugh J stated:**

Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission[3] when it said that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" Stead v State Government Insurance Commission[4]. In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second Tribunal and the history of the proceedings, the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.[5]

23 It may be that upon the full hearing of this matter that even if denials of procedural fairness are established the Court will conclude that such denials were not in the circumstances of this case matters which could have affected the outcome. Nevertheless, allegations of breach of procedural fairness raise issues of the public interest in addition to those which arise between the parties.[6] It seems to me that having regard to this consideration and the proposition that "it is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome" leave to appeal should be granted with respect to questions 1 and 3 of law identified in the draft notice of appeal on grounds 7, 8, and 13A as set out in the draft notice of appeal. Leave is otherwise refused.

[1] Department of Premier and Cabinet v Hulls [1999] VSCA 117; (1999) 3 VR 331; Portland Properties Pty Ltd v MMBW (1971) 38 LGRA 6.

[2] [2000] HCA 57; (2000) 204 CLR 82.

[3] [1986] HCA 54; (1986) 161 CLR 141 at 145.

[4] [1986] HCA 54; (1986) 161 CLR 141 at 145.

[5] [2000] HCA 57; (2000) 204 CLR 82at 122, [104].

[6] The Department of Premier and Cabinet v Hulls, above at [1].