Plaintiff v Defendants

2 The parties have provided to the Court, in accordance with Practice Note No. 4 of 2009 in the Judicial Review and Appeals List, a Joint Memorandum on Proposed Orders (the 'Joint Memorandum'), which sets out the following:

(a) The plaintiff applied for a planning permit to develop a wind energy facility on a 680 hectare parcel of land within the area known as The Sisters, approximately 230 kilometres west of Melbourne. On 7 August 2009, the Moyne Shire Council refused the plaintiff's permit application, and on 12 August 2009, the plaintiff applied to the Tribunal for a review of that refusal.

(b) On 20 November 2009, the Tribunal ordered that the Council's grounds of refusal be amended to include the following additional ground:

There is inadequate information to assess the cumulative effects of the proposal, including the cumulative visual effects and cumulative acoustic effects of the proposal, particularly with respect to the proposed Mortlake Wind Farm.

(c) The Moyne Planning Scheme and the Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria, 2009 (the '2009 Guidelines') make reference to assessing noise impact in accordance with New Zealand Standard NZ6808:1998 Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators (the '1998 Standard'). That standard was superseded by NZS6808:2010 Acoustics: Wind Farm Noise (the '2010 Standard').

(d) The 2010 Standard differs from the 1998 Standard in a number of respects. In particular, the 2010 Standard provides that a high amenity noise limit should be considered where a plan promotes a high degree of protection of amenity related to the sound environment of a particular area.

(e) The hearing of the plaintiff's application for review before the Tribunal took place on 11, 12, 15 and 16 February 2010. After a short adjournment as a result of the Tribunal expressing concerns about "shortfalls" in the plaintiff's application concerning noise impact assessment arising from turbines associated with both the plaintiff's proposal and the Mortlake Wind Farm, and the provision by the plaintiff of noise impact assessments and a report by an acoustic engineer, the hearing reconvened on 12 April 2010.

(f) By an order dated 27 April 2010, the Tribunal affirmed the decision of the Council and confirmed that no permit would be granted in respect of the plaintiff's proposal.

3 The error of law made by the Tribunal is submitted by the parties to be contained in the following statement:

under the Interpretation of Legislation Act 1984 the reference to the 1998 New Zealand Standard in the Policy Guideline and the Planning Scheme should be read as a reference to the 2010 New Zealand Standard.

4 The parties agree that the Tribunal was wrong to read references in the Planning Scheme and in the 2009 Guidelines to the 1998 Standard as references to the 2010 Standard.

5 It is submitted by the parties that there is nothing in the Interpretation of Legislation Act 1984 that authorised the Tribunal to read references in the Planning Scheme and in the 2009 Guidelines to the 1998 Standard as references to the 2010 Standard. In the absence of an amendment to the Planning Scheme, the Tribunal was required to apply the 1998 Standard when assessing the noise impact of the plaintiff's proposal.

6 I accept the submissions made by the parties in the Joint Memorandum, which I attach to this judgment. The Tribunal erred in reading the references in the Planning Scheme and the 2009 Guidelines to the 1998 Standard as a reference to the 2010 Standard. That error was a vitiating error.

7 The matter will be remitted to the Tribunal in accordance with the Minute of Joint Proposed Orders.

I certify that this and the 108 preceding page are a true copy of the reasons for Judgment of Emerton J of the Supreme Court of Victoria delivered on 17 December2010.

1. The parties to this appeal agree[1] that the orders of the Victorian Civil and Administrative Tribunal made on 27 April 2010[2] are based on an error of law and should be set aside with the matter remitted to the Tribunal, differently constituted, for a further hearing on additional evidence limited to the issue of the noise impacts of the proposal on existing dwellings, including the cumulative acoustic effects of the Sisters Wind Farm and the Mortlake Wind Farm.
2. The central issue before the Tribunal - which was considering an application for review of a refusal to grant a planning permit for a wind farm - was the noise impacts of the Sisters Wind Farm. The Planning Scheme and the Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria (2009) both made express reference to assessing noise impacts in accordance with New Zealand Standard NZ6808:1988 Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators. That Standard was superseded by NZS6808:2010 Acoustics: Wind Farm Noise.
3. The error of law made by the Tribunal is contained in the following statement:[3]

under the Interpretation of Legislation Act 1984, the reference to the 1998 New Zealand Standard in the Policy Guideline and the Planning Scheme should be read as a reference to the 2010 New Zealand Standard.

The Tribunal was wrong to read references in the Policy Guidelines and in the Planning Scheme to the 1998 New Zealand Standard as references to the 2010 Standard.

1. It is apparent from the Tribunal's reasons that this was a vitiating error and the parties therefore agree that the proposed orders attached to this Memorandum should be made.

1. The parties have agreed, for the reasons set out below, that the plaintiff should succeed and have proposed orders to that effect.
2. This joint memorandum has been prepared in accordance with the approach set out in the Court's Judicial Review and Appeals List Practice Note (No 4 of 2009) and the statements of the Full Federal Court in Irwin v Military Rehabilitation and Compensation Commission.[4]
3. In essence, because this appeal is on a question of law from the exercise of executive power by an administrative tribunal, the setting aside of the Tribunal's decision involves the exercise of judicial power and cannot be achieved simply by agreement of the parties.
4. It is for the Court itself to address and be satisfied that an error of law has been made by the Tribunal that warrants the making of the proposed orders. The orders cannot be made by the parties' consent. The Court is required to adjudicate on the plaintiff's application and this joint memorandum serves to identify the error of law that the parties agree was made by the Tribunal.

1. The plaintiff (SWF) sought a planning permit to develop a wind energy facility on a 680 hectare parcel of land within the area known as The Sisters, which is 230 kilometres west of Melbourne and 40 kilometres north-east of Warrnambool (the subject site).
2. The subject site is located wholly within the farming zone as identified in the Moyne Planning Scheme (the Planning Scheme), is predominantly cleared for pasture, and is used for dairy and grazing purposes.
3. In mid-December 2008, SWF applied to the first defendant (the Council) for a planning permit to develop a wind energy facility on the subject site (the SWF Proposal).[5]
4. The SWF Proposal involved the erection on the subject site of up to 12 wind turbine generators and ancillary equipment capable of generating up to 29.99 megawatts of electricity.
5. On 7 August 2009, the Council refused SWF's permit application.[6]
6. On 12 August 2009, SWF applied to the VCAT for a review of the Council's refusal.[7]
7. On 20 November 2009, the VCAT ordered that the Council's grounds of refusal be amended to include the following additional ground:[8]

There is inadequate information to assess the cumulative effects of the proposal, including the cumulative visual effects and cumulative acoustic effects of the proposal, particularly with respect to the proposed Mortlake Wind Farm.

1. The reference to the proposed Mortlake Wind Farm in the VCAT's order is a reference to a proposal by an unrelated developer for a wind farm of up to 97 wind turbine generators in the vicinity of Mortlake. These turbines would be situated on two distinct parcels of land, both of which are located to the north of the subject site. One of those parcels is known as "Mortlake South", and the other is known as "Mortlake East".
2. The hearing of SWF's application for review before the VCAT took place on 11, 12, 15 and 16 February 2010. At the conclusion of the fourth day of the hearing, the VCAT expressed concerns about "shortfalls" in SWF's application and ordered SWF to produce, inter alia, the following:
   • (1) a noise impact assessment for the properties potentially impacted by both the turbines associated with the SWF Proposal and those forming part of the Mortlake South application; and
   • (2) an expert report justifying the use of the 40dB(A) noise impact standard as contained in the New Zealand Standard NZ6808:1998, Acoustics - The Assessment and Measurement of Sound from Wind Turbine Generators (the 1998 Standard), being the standard referred to in the Policy and Planning Guidelines for Development of Wind Energy Facilities in Victoria 2009 (the 2009 Guidelines).

The VCAT also set down a date for a further hearing on 12 April 2010.[9]

1. On 29 March 2010, SWF filed and served its noise impact assessment dated 12 March 2010.[10]
2. On 31 March 2010, SWF filed and served a further expert report of Jonathan Cooper, an acoustic engineer.[11]
3. The Tribunal was also provided with noise assessments prepared for the Mortlake Wind Farm.[12]
4. On 12 April 2010, the hearing was reconvened. Shortly after the hearing recommenced, the Council's advocate advised the VCAT that the 1998 Standard had, on 1 March 2010, been replaced by a new standard: namely, the New Zealand Standard NZ6808: 2010, Acoustics - Wind Farm Noise (the 2010 Standard).[13]
5. The 2010 Standard differs from the 1998 Standard in several respects. For example, clause 5.3 of the 2010 Standard relevantly provides as follows:

"5.3.1 The wind farm noise limit of 40 dB LA90(10 min) ... is appropriate for protection of sleep, health, and amenity of residents at most noise sensitive locations. In special circumstances at some noise sensitive locations a more stringent noise limit may be justified to afford a greater degree of protection of amenity during evening and night-time. A high amenity noise limit should be considered where a plan promotes a higher degree of protection of amenity related to the sound environment of a particular area, for example where evening and night-time noise limits in the plan for general sound sources are more stringent than 40 dB LAeq(15 min) or 40 dBA L10. ...

5.3.3 Where a high amenity noise limit is shown to be justified in accordance with 5.3.1, under wind conditions determined in accordance with 5.3.2, wind farm sound levels ... during evening and night-time should not exceed the background sound level by more than 5 dB or a level of 35 dB LA90(10 min), whichever is the greater." (emphasis added)

This more stringent noise limit did not exist under the 1998 Standard.[14]

1. By an order dated 27 April 2010, the VCAT affirmed the decision of the Council and confirmed that no permit would be granted in respect of the SWF Proposal.[15]

1. The Tribunal held that it should apply the 2010 Standard rather than the 1998 Standard when assessing noise impacts. It said that the Interpretation of Legislation Act required that conclusion.[16]
2. There is no provision in the Interpretation of Legislation Act that authorised or obliged the Tribunal to read references in the Planning Scheme and in the Policy Guidelines to the 1998 Standard as references to the 2010 Standard. In particular, nothing in ss 31, 32 or 38AA authorised or required that result.
3. In the absence of an amendment to the Planning Scheme, the Tribunal was required to apply the 1998 Standard when assessing the noise impacts of the SWF Proposal.
4. The parties agree that the Tribunal made an error of law in holding that the 2010 Standard was the applicable standard and should have held that the 1998 Standard was the applicable standard.
5. The first defendant contends that the 2010 Standard may, nevertheless, be relevant to a decision to grant or refuse a planning permit.
6. The Tribunal's decision that it was the 2010 Standard that applied was an error of law. Further, because the Tribunal made its decision about the noise impacts of the SWF Proposal expressly on the basis of the 2010 Standard, the Tribunal's decision must be set aside and the matter remitted to it.

1. The parties agree that the issue of the noise impacts of the SWF Proposal, including the cumulative acoustic effects of the Sisters Wind Farm and the Mortlake Wind Farm, should be remitted to the Tribunal for hearing and determination according to law and with the hearing of further evidence. The parties also agree that the Tribunal should be differently constituted, particularly because the parties understand that Member Mainwaring is no longer a member of the Tribunal.
2. Further, the parties agree that the other grounds of objection - conveniently described as visual impact, ecological studies, traffic and access, health and shadow flicker - were either:
   • (1) the subject of findings made by the Tribunal that would not preclude a permit being issued and have not been the subject of appeal or cross-appeal; or
   • (2) are no longer in issue between the parties.
3. For those reasons, it is only the issue of noise impacts that should be remitted to the Tribunal.

[1] This joint memorandum has been signed by the solicitors for the plaintiff and the first defendant. The first defendant has obtained the written consent of each other defendant to this proceeding to the proposed orders.

[4] [2009] FCAFC 33; (2009) 174 FCR 574 at 577 [12]- [16].

[5] Exhibit JTGL-1 to the Affidavit of Justin Lethlean is a copy of the executive summary of that permit application.

[6] Exhibit JTGL-2. See also Exhibit JTGL-11 at page 7.

[14] Clause 4.4.2 of the 1998 Standard simply said this: "As a guide to the limits of acceptability, the sound level from the WTG (or windfarm) should not exceed, at any residential site, and at any of the nominated windspeeds, the background sound level (L95) by more than 5 dBA, or a level of 40 dBA (L95), whichever is the greater".

[15] The VCAT's order and its reasons are exhibit JTGL-11.

[16] Exhibit JTGL-11 at [17], [18], [24], [27]