Plaintiff v Defendants

[2010] VSC 222

Supreme Court of Victoria|2010-05-27|Before: OSBORN J

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Court

Supreme Court of Victoria

Decision date

2010-05-27

Before

OSBORN J

Source

Original judgment source is linked above.

Judgment (226 paragraphs)

[1]

[2010] VSC 222

[2]

PLANNING - Municipal council requires Ministerial permission and planning permit for replacement of ocean access ramp - Environment Effects Act 1978 invoked as approvals required could have significant effect on the environment - Minister for Planning required Environmental Effects Statement to be completed - Submissions upon EES were predominantly opposed to construction of a new ramp - Panel appointed to conduct inquiry - Panel recommendations reject new ramp options - Minister did not accept the panel's principal recommendation and took a different view with respect to safety benefits and disbenefits - No merits review by Court - Minister's assessment only informs and assists the ultimate statutory decision makers - Whether the Minister's assessment was an assessment within the meaning of the Environment Effects Act 1978 - Whether the Minister took into account irrelevant considerations - Statutory definition of 'environment' a flexible concept - Environment includes social effects including water safety - Minister did not take irrelevant considerations into account - Whether the plaintiff entitled to a further hearing - No entitlement arising from the plaintiff's interests - Statutory scheme with respect to hearing - Consequences of plaintiff's interpretation of the statutory scheme - Procedural fairness in the circumstances of the case - If the validity of the assessment impugned, relief in the nature of potentially available - , - , , , , , , , - , , , (1), (1), (1) - (Cth), - , r 56 - .

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1. Executive summary

The Mallacoota Ocean Access Boat Ramp is proposed at Bastion Point, approximately 1.5 km south of Mallacoota in East Gippsland and 520 km east of Melbourne. In 2000 the Minister for Planning determined that an Environment Effects Statement was required to provide a framework for considering potential impacts of the proposal. A planning permit application for removing native vegetation associated with the project was called in by the Minister for Planning.

An existing boat ramp at Bastion Point is approximately 40 years old and is used by recreational fishers, commercial Abalone divers and fishers and for other uses such as fisheries patrols and servicing Gabo Island. The ramp is intensively used during the summer and Easter holiday periods by recreational fishermen.

The existing ramp has a number of issues related to traffic and parking, ramp slope, ramp width, general ramp condition and weather protection. According to estimates it is currently usable for about 25% of the time.

Ocean access via the Mallacoota Inlet mouth occurs at times but this is reliant on the inlet mouth being open and can be a hazardous transit due to inlet and sea conditions.

The debate regarding improved ocean access at Mallacoota has been under way since at least the 1980s, and possibly longer. It is a divisive issue that has caused considerable angst at times in town between those who support larger development proposals at Bastion Point and those who would prefer a minimal upgrade of the current ramp or no change at all.

The East Gippsland Shire Council is the proponent for the proposals in the EES. The exhibited options in the EES included; an upgraded ramp with breakwaters at the current ramp site; a new ramp about 100 m further south with one breakwater, and a new ramp about 150 m south of the existing ramp with one breakwater. Following exhibition of the EES, further options were presented to move the access roads to the new ramp proposals from the top of the embankment down on to the beach front to reduce impacts on vegetation and Aboriginal heritage.

The Council's preferred option is a new ramp at the Option 3 site, 150 m south of the existing ramp.

As a result of the exhibition of the EES, 482 submissions were received, with 87% objecting to the new ramp proposals and/or supporting an upgrade of the current ramp. As a result of exhibition of later options, a further 75 submissions were received (supplementary submissions from some of the original submitters).

The major issues raised in submissions (not necessarily in order of significance) were:

[30]

The Panel appointed by the Minister for Planning sat for 14 days in Mallacoota and Melbourne and heard from approximately 70 submitters and a large number of expert witnesses.

The Panel has considered all the material put before it and assessed it against the evaluation objectives in the Assessment Guidelines developed for the EES. On these issues the Panel concludes as follows.

Policy framework

The Panel does not consider the policy framework is as supportive of the development proposals as put in the Hearing by the Proponent. The Panel considers that the key, relevant parts of the policies stress boating safety (including not providing facilities where inexperienced people may get into difficulty) and environmental sustainability.

Safety and efficiency

The new ramp proposals would provide a better facility at the actual launch and retrieval point but the Panel has serious concerns in relation to the safety of all the new proposals in relation to facility entry and exit.

Coastal processes

The Panel considers there is unlikely to be significant impacts on Mallacoota Inlet but the Panel has serious concerns in relation to sediment movement affecting the safety and usability of the Option 3 proposals.

Marine Ecology

The Panel considers that impacts on marine ecology could be managed during project development.

Character and amenity

The Panel considers that the impact of the breakwaters in the new proposals will have considerable impact on the wilderness and landscape values of Bastion Point and an overall net detriment to tourism.

The social impacts in Mallacoota are dependent on which option is chosen and whichever group feels disaffected is likely to experience ongoing social impact.

Cultural heritage

The Panel has concluded that the 'beach road' options will significantly reduce impacts on Aboriginal sites but that impacts on other cultural heritage values (such as Aboriginal 'sense of place') will remain.

Terrestrial ecology

Vegetation removal for the beach road options is significantly less than for the cliff top road options and could be managed within the Native Vegetation Management Framework.

Economic impacts

The economic case for the project is very weak and likely to have a benefit cost ratio well below 1. There are a number of significant remaining uncertainties in the assumptions that further undermine the economic case.

On the issue of overall societal benefit, the Panel has concluded that the case for the development options is not strong. Weighing up all the different issues and considerations for ocean access at Mallacoota, the Panel has concluded that on balance the development proposals should not proceed. This is not a case where National, State or regional imperatives demand that the proposal proceed for the greater good of the community. This is a local issue where the balance and weighting is much finer and the Panel concludes that refinement and improvement of the existing boat ramp at Bastion Point provides a much better environmental, economic and social outcome.

The Panel recommends:

The environment effects of Options 1, 2 and 3 as exhibited, Options 3a and 3b, and Option LS1 are such that there is no overall societal benefit in progressing these options further and they should be discarded.

The Panel considers that 'Do nothing' is not an acceptable option and, within its terms of reference, has suggested that an upgrade of the existing ramp and parking be undertaken, and it has provided a suggested scope for such works.[9]

[33]

All of the OABR options considered by the Inquiry Panel would have degrees of environmental effects and these have been documented by the Inquiry Panel.
Mallacoota is an existing town on the Victorian coast that supports a mix of recreational and other marine uses and has been identified in the Victorian Coastal Strategy 2008 as a regional boating destination. In this respect Mallacoota is like other similar towns along the Victorian coast that provide a range of coastal infrastructure and other services that support overall community use and enjoyment of the coast.
Current safety concerns that have been identified during the Inquiry process are such that 'do nothing' is not an option.
Investment in a new facility would provide a practical solution to the long term issues of swimmers and boating in close proximity by allowing deliberate separation of incompatible uses for the long term.
All options considered do present their own challenges in terms of boater use of any facilities. The risks associated with boaters of differing levels of competence and experience using facilities that provide access to open ocean conditions, that are often very changeable, will require implementation of effective management arrangements to mitigate risks to boaters from their own behaviour.
Of the options considered, option 3B, including an access provided along the base of the headland, via the existing access track leading off an expanded existing car park is preferable in terms of minimising overall impact.
Accordingly, should any new ramp be provided, it will be essential for a full safety audit to be conducted to inform detailed design, including the potential provision of user operational guidelines and associated search and rescue capacity. Marine Safety Victoria should take a lead role in that detailed assessment.
Should EGSC, as the proponent, seek to implement a new OABR, EGSC should develop construction design in consultation with MSV and DSE, AAV and Gippsland Ports with the objective of establishing a breakwater design that is as visually unobtrusive as possible, considers and includes specific provisions to be identified by MSV in relation to design and operational safety considerations, advice from DSE in relation to car park design, native vegetation offsets, management of car park runoff, waste treatment, traffic management between pedestrians and vehicles and design for climate change, and consultation with AAV in relation to cultural heritage.[11]

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Many submitters described the expected safety hazard of boats exiting from the proposed facility by having to turn immediately after exiting into moderate to large swells and possibly into breaking waves. The submitters claimed that, if this manoeuvre is not made well, the boat would be side on to the swell and could be swamped throwing the operator and passengers into the sea.

A large proportion of these submissions were from experienced fishermen or from people whose jobs are closely associated with the conditions around Bastion Point. For example in Hearing Submission 32, Mr Symes who has worked as Light Station Caretaker on nearby Gabo Island and accessed the Island by boat from Bastion Point in many varied sea conditions, said that '...the 2.4 metre high breakwall will prevent visibility on the ocean beyond the breakwall. Exiting in any swell is going to be damn right dangerous, departing a harbour broadside to oncoming waves blindfolded by a manmade rock barrier - what a frightful prospect'.

Describing the concept of a minor upgrade to the existing ramp, Mr Symes said that the natural rock formations dissipate the swells but still allow good visibility which is imperative to be able to observe and calculate until you are safely beyond the break.

Mr Les Mason (Submission 354) stated with respect to it being '...dangerous for boat operators entering and exiting the entrance of the boat harbour' that this was the strongest point made by him and the Mallacoota Surf Riders during their discussions with EGSC and its consultants, including the designer of the 3 Options.

Mr Bruce Pascoe (Submission 79) who has worked on professional fishing boats, fishes around Gabo Island and uses the existing boat ramp said, 'I believe, along with many professional boat users in Mallacoota, that it is a recipe for disaster to encourage amateur boatmen to exit a ramp facility blind to the oncoming sea. An inexperience sailor will panic when entering the sea broadside to oncoming waves which he hasn't been able to assess'.

The Mallacoota Surf Life Saving Club (Submission 84) made the point that, even at the existing ramp where visibility of the oncoming swells is good, that boating accidents have occurred at the present site as a result of boats capsizing due to waves when entering and leaving the harbour. The submission comments that the Option 3 boat ramp would not have changed this potentially fatal situation as the exit to the harbour would still be inside the surf zone. In fact it would be potentially far more dangerous as the boat operator would have no ability to wait for any lulls in the (swell) sets.

Mr John Frazer (Submission 421) who drove the tractor launching boats at Bastion Point for seven years said that boaters leaving the 'safety' of the (proposed) ramp will be unable to see over the 2.8 m wall to judge the swell which stands up at Broken Board (the area of surf immediately outside the facility).[17]

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The overwhelming weight of information provided to the Panel was the high likelihood of a boat capsizing due to impact of side-on, moderate to large swells when exiting Option 3 and that the consequences for the operator and passengers thrown out of the boat, such as drowning, could be either major or catastrophic.

Similar to the situation of boats exiting Option 3, the overwhelming weight of information provided to the Panel is the high likelihood of a boat capsizing due to the impact of side-on moderate to large swells when entering the proposed facility. This capsizing could result in the boat hitting the breakwater or the rocks on the other side of the channel causing passengers to be thrown out of the boat with catastrophic consequences.

A further hazard is the possibility of a returning boat misjudging its entry into the 20 metre wide slot of the proposed boat ramp, and striking the intertidal reef. At the existing boat ramp, there can be also be a sand bar but boats have more room to manoeuvre to avoid it.

As discussed further in Chapter 5, a bar may also form across the entrance to the channel of the new facility, making sea conditions more unpredictable and navigation more difficult.

The Panel believes that the hazard of boats entering and leaving the ramp area protected by the breakwater at Option 3 must be rated as A5 (Extreme). The Panel has little doubt that the risks to inexperienced users in difficult sea conditions would indeed be at the upper level of Extreme. The Panel considers that this particular hazard is one of the two that differentiate the existing ramp from Option 3 by introducing a level of risk that is unacceptable.

...

The overwhelming weight of information received during the Panel is that the Option 3 is likely to lead to more inexperienced boat operators putting to sea in unsuitable conditions. They may be lulled into a false sense of security behind the breakwater and then experience the frequent moderate to high winds and confused seas experienced particularly in this part of the ocean, leading to catastrophic loss of life from drowning. This is particularly so given that there are unsuitable rescue boats available for this type of ocean rescue at Mallacoota.

While the same consequence is present for boat operators and their passengers putting to sea from the existing facility, there is a much greater opportunity for the boat operator to observe the state of the ocean from the unimpeded view from the launch site (the beach). In addition, the Panel believes that the difficulty of launching from the existing ramp in moderate to rough seas dissuades many inexperienced boat operators from using the ramp. No reported drownings from boats using the existing ramp were brought to the Panel's attention. For these reasons, the Panel considers that the level of risk reported by Pryor Knowledge[19] resulting from use of the Existing ramp is overstated (Extreme (C5)), and the Panel assigns a rating of Extreme (D5). The Panel considers that the level of risk reported for Option 3 is considerably understated, and the Panel assigns a rating of Extreme (B5).

Overall, the Panel believes the risk of catastrophic accidents in the open ocean would be significantly increased if Option 3 was implemented. This is the second area where the Panel has differed in its assessment of risk to the assessment provided by Pryor Knowledge, and where the Panel believes that Option 3 introduces an unacceptable risk.[20]

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Hazards to swimmers and surfers at the existing ramp entail both the area where boats are launched, and the route that they take to access open water. Credible information was provided to the Panel that there have been some incidents and near misses. On the other hand, there is little systematic record available as to the number of incidents or the consequences. To try to overcome this safety risk the Special Use Zone to separate boats from swimmers and surfers was introduced. This may have the potential to reduce the number of incidents but in the absence of a management regime to oversee its implementation, the risk would not appear to be greatly reduced. While Pryor Knowledge has assessed these risks as Extreme (A3), the Panel is concerned that the potential consequences could involve brain injury or death, making the assessment Extreme (A4). Again the accident history over 40 years suggests that while there is the potential for serious accidents, they have not actually eventuated, indicating that a rating of High (D4) would better accord with the historical data for this hazard.

Option 3 will separate swimmers from boats and the likelihood of boats hitting swimmers is unlikely. However the possibility of hitting surfers while making the right hand turn at the exit exists. With regard to Option 3, the Panel notes the rating given by Pryor Knowledge - Medium (D3) for swimmers, High (B3) for surfers.

The Panel has some concern that the likely severity of injury is only rated at 3 by Pryor Knowledge, when a collision between a boat and a swimmer or surfer could well result in major brain damage or death. However Pryor Knowledge has been consistent in applying a Consequence level of 3 to injuries to swimmers and surfers at both the existing ramp and Option 3. In view of this (and the fact that increasing the Consequence level would not further differentiate the options), the Panel has not departed from the rating provided by Pryor Knowledge.

Overall the risk to swimmers is improved by the separation at the ramp for Option 3 to Medium (D3), while the risk to surfers remains High (B3).[21]

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1.2 Assessment Response to Evaluation Objectives

I now provide my findings in the context of the evaluation objectives introduced above, before turning to respond to the latter's recommendations.

Objective 1: To provide efficient, safe infrastructure for the launching and retrieval of commercial and recreational boats under all tides at Mallacoota

This objective reflects the basis purpose of the OABR project. The efficiency and safety of the infrastructure options during different seasons and weather conditions need to be taken into account for both commercial and recreational users boating users, and other beach and water users. In terms of prospective commercial users, the needs of abalone and other commercial fishers as well as tourism operators warrant consideration. Efficiency encompasses both functional and cost aspects, while the safety of both users and other parties needs to be considered. I note the advice provided to the Inquiry by the East Gippsland Shire Council, which is the Committee of Management for the foreshore, that concerns with current operational risks at the existing launching ramp may necessitate its closure.

It is clear from the EES and the Inquiry Report that safety is a significant overall consideration in assessing alternatives. I have seen the ramp in operation and concur with the general observations made to the inquiry by a number of parties on this issue. I note particularly the advice of Gippsland Ports, who are responsible for management of marine issues in the special use zone identified around the existing launch ramp site, that past practices to minimise interaction between boat traffic and other water users has not been successful and that a preferable outcome would be to increase the physical separation between conflicting user groups to minimise long term risks of recreational water users and boats impacting each other. This advice matches my observations.

Practical operating safety is a serious issue that has received considerable attention in both submission and by the Inquiry Panel and in this context it is disappointing to note that a comprehensive safety audit of both the current ramp and future options was not effectively undertaken to inform the process and the Inquiry. In this respect I note that whilst a written submission was made by Marine Safety Victoria that raised relevant design considerations, neither Marine Safety Victoria nor Gippsland Ports appeared at the Inquiry to expand upon their written submissions.

In this context, and having regard to the Inquiry Panel's report, it is my assessment that:

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All proposed options for a new boat ramp with breakwaters would significantly enhance the functional efficiency of boat launch and retrieval activities, as well as the safety of boats within the area enclosed by the breakwater structures. The combination of a dual lane boat ramp together with a formed road and increased parking capacity would increase the efficiency of the movement of vehicles and parking, particularly at peak times over the Christmas-New Year period, and would enable improved pedestrian and vehicular management to be implemented.
The options for a new boat ramp at a new location at Bastion Point is likely to raise operational safety considerations that will need to be addressed potentially including overall safety of boat users transiting the area enclosed by the breakwater structures either to or from open water, because of the hazards respectively associated with: (a) exiting boats encountering waves side on in a situation of constrained visibility because of the breakwater walls themselves; and (b) timing the movement of returning boats to access the safety of the breakwaters.
The greatest increase in risk exposure would occur for inexperienced recreational boat users who might be encouraged to utilise the new facility because of its apparent safety, but who lack the level of local knowledge and boat-handling skill acquired by local commercial users. Accordingly operational conditions may need to be established to manage the practical use of any new ramp, and these conditions may need to vary with prevailing conditions.
A comprehensive safety and risk audit should be undertaken by Marine Safety Victoria to inform detailed design of any open ocean access ramp option, including associated search and rescue capacity and requirements.
Surfers are unlikely to be exposed to any increase in risk as the likely practical impact of construction of a breakwater at the sites considered is likely to physically prevent surfing in the immediate vicinity of the breakwater.

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SAFETY FIRST FOR NEW BASTION POINT BOAT RAMP

Thursday, 11 June 2009

Planning Minister Justin Madden today released his assessment of the Panel Report into an ocean access boat ramp at Bastion Point, Mallacoota, which will allow council to design and construct a breakwater and boat ramp.

Mr Madden said the Brumby Labor Government was taking action to support delivery [of] necessary infrastructure required for safe commercial, fishing and recreational boating needs.

"After an extensive Environmental Effects Study (EES), which included public hearings, I have disagreed with the panel report and conclude that doing nothing or a minor upgrade at the existing site would only increase the risk of swimmers and beach users sharing the ocean where boat launching occurs," Mr Madden said.

"There is currently a dangerous mix of swimmers, beach users and boating traffic in a confined area of water at the boat ramp location and this is not acceptable.

"Therefore I have approved the option presented to the panel which best minimises the problem of swimmers and boat users in the same space and provides the necessary approvals for further work on the more detailed design and construction."

The East Gippsland Shire will now work with the Department of Sustainability and Environment, Marine Safety Victoria, Aboriginal Affairs Victoria and Gippsland Ports to develop a more detailed design.

Mr Madden said boat access to the ocean was an important requirement for Mallacoota given the emerging growth in marine tourism, the existing commercial fishery and increasing recreational boating demands.

Any contemporary new facility requested by the East Gippsland Shire Council, would need to be designed consistent with a full safety audit conducted by Marine Safety Victoria, and in accordance with relevant Australian design standards.

"Striking the right balance between the needs of beach users and boat access is important," he said.

The existing car park will also be expanded giving access to the beach via the existing access track, creating additional access along the base of the headland and creation of a new two-lane ramp protected by a breakwater where boats can launch into a naturally occurring fissure in the rock platform.

Mr Madden said the design must include provision for sand bypass, safety and management arrangements and enhancement of car parking and pedestrian safety considerations.

Consent of the Minister for Environment and Climate Change is also required for any works on Coastal Crown Land.

The Inquiry Panel report will be published at www.dpcd.vic.gov.au /planning[30]

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The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything" (Board of Education v Rice [1911] AC 179, 182). But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

" ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a `policy' or `political' decision and is not subject to judicial review." Salemi v Minister for Immigration and Foreign Affairs [No2] [1977] HCA 26; (1977) 137 CLR 396, 452 per Jacobs J)

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.

In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[48]