Plaintiffs v First Defendant

ADMINISTRATIVE LAW - Judicial review - Amendment to planning scheme - Minister's decision to exempt himself from statutory notice requirements - Minister's decision to adopt and approve amendment - Whether Minister relied on assessment under Environment Effects Act 1978 (Vic) - Whether exemption decision legally unreasonable - Whether adoption and approval invalid for failure take into account significant effects of amendment on environment - Planning and Environment Act 1987 (Vic), ss 12(2), 20(4), 29, 35.

1 In 2010, the Roads Corporation (VicRoads)[1] proposed duplicating the Western Highway between Beaufort and Ararat, as Stage 2 of a larger project to duplicate the highway between Ballarat and Stawell. Recognising that the Stage 2 project could have a significant effect on the environment, VicRoads sought the advice of the Minister for Planning, under s 8 of the Environment Effects Act 1978 (Vic) (EE Act), as to whether an Environment Effects Statement, or EES, should be prepared for the project. In October 2010, the Minister advised that an EES was required and, in September 2011, he published scoping requirements for its preparation.

2 VicRoads prepared the EES and published it in September 2012. The EES was a multidimensional assessment of the specific environmental effects of the Stage 2 project. It assessed the environmental effects of the project under the headings of: planning and land use, traffic and transport, soils and geology, groundwater, surface water, biodiversity and habitat, cultural heritage, air quality, noise and vibration, visual and landscape, social, economic, and matters of national environmental significance. The EES also attached a number of technical appendices. Technical Appendix H was a biodiversity and habitat impact assessment report prepared for VicRoads by Ecology & Heritage Partners Pty Ltd in August 2012.

3 Chapter 5 of the EES set out VicRoads' assessment of three alternative alignment options for the project. It presented two options - Option 1 and Option 2 - for consideration, with Option 2 being VicRoads' preferred alignment. VicRoads' preference was based on a comparison of both options across each of the 13 environmental domains assessed by the EES, one of which was biodiversity and habitat.

4 MairiAnne Mackenzie and Iona Mackenzie both own land in the Mt Langi Ghiran area, adjacent to the Western Highway, and south of Langi Ghiran State Park. The selection of the alignment for the project was a matter of keen interest to both of them, since the decision would determine the impact of the Stage 2 project on their land. Option 1 contemplated a new road through their properties, and involved compulsory acquisition of parts of their land. Option 2 also affected their land, but to a lesser extent.

5 In November 2012, the Minister appointed a Panel to hold an inquiry into the environmental effects of the Stage 2 project and planning scheme amendments related to the project. The Panel received submissions and held public hearings in December 2012. Both MairiAnne Mackenzie and Iona Mackenzie made written submissions to the Panel, and MairiAnne participated in the public hearings. They proposed a further alternative alignment - the 'Northern Option' - which, like VicRoads' preferred Option 2, was close to the existing highway past Langi Ghiran State Park.

6 The Panel provided its report to the Minister in February 2013. Chapter 25 of the report dealt with the alignment from Pope Road to Langi Ghiran Picnic Ground Road, where Option 1 intruded into the properties of MairiAnne Mackenzie and Iona Mackenzie. After comparing Options 1 and 2, and the proposed Northern Option, the Panel recommended adoption of Option 1.

7 In May 2013, the Minister published his Assessment of the Stage 2 project under the EE Act. Having regard to the EES, the Panel's report, and the matters raised in submissions, it was the Minister's overall assessment that:

• Option 1 provides a more appropriate balance between the likely environmental effects, social and economic outcomes and should be implemented in a manner consistent with this Assessment, including the following responses to the recommendations of the Inquiry.
• In relation to both the relevant legislation and policy framework and the overall benefits of the project in terms of enhancing its important role as a national highway, the potential environmental effects of WHP2[2] are acceptable, provided the appropriate minimisation, mitigation and management measures, as reflected in the findings of this Assessment, are implemented.
• The WHP2 will provide a net benefit to the State of Victoria, having regard to both long-term and short-term economic, environmental and social considerations.

8 In October 2013, the Minister adopted and approved Amendment C27 to the Ararat Planning Scheme. The amendment applied a Public Acquisition Overlay, or PAO, over land required for the Stage 2 project, including parts of the Mackenzies' land. It also incorporated a document in the Ararat Planning Scheme,[3] which permitted works associated with construction of the Stage 2 project, including the removal of native vegetation.

9 Section 2A of the project, from Beaufort to the Buangor bypass, was completed in about May 2016. During August 2015, VicRoads compulsorily acquired private land - including land belonging to MairiAnne Mackenzie and Iona Mackenzie - in order to construct Section 2B between Buangor and Ararat. In April 2016, VicRoads commenced the tender process for the construction of Section 2B, and started vegetation and tree removal in August 2016.

10 In the meantime, VicRoads realised that its EES had significantly underestimated the number of large old trees, or LOTs, that would have to be removed in the construction of the Stage 2 project. In a media release issued in November 2015, VicRoads said that, although the initial estimate was that 221 large old trees and 249 scattered trees would have to be removed, subsequent on-the-ground counting identified a total of 1,645 large old trees and scattered trees for removal. The figure of 1,645 was said to be a worst-case scenario, with the actual number of trees that would have to be removed being 885.

11 The Mackenzies and an incorporated association called Keep the Original Route Supporters Inc. commenced this proceeding in October 2016. The plaintiffs sought judicial review remedies in respect of numerous matters, including the Minister's Assessment and his adoption and approval of Amendment C27. They contended that, as a result of the 'large old trees error', both the Minister's assessment and the approval of Amendment C27 were invalid. They sought interlocutory injunctions restraining VicRoads, its chief executive, and the Minister from undertaking any further works on the Option 1 alignment of Section 2B.

12 On 22 November 2016, Emerton J refused the plaintiffs' application for interlocutory injunctions.[4] The proceeding was listed for trial in early 2017.

13 However, in early February 2017, VicRoads became aware that the Amendment C27 incorporated document had expired. This administrative oversight meant that the Section 2B works were not authorised under the Ararat Planning Scheme. Work on Section 2B immediately ceased, and the trial date was vacated. The expiry of the incorporated document did not affect the Public Acquisition Overlay that had been applied by Amendment C27, or the compulsory acquisition of private land on the Option 1 alignment.

14 On 17 December 2017, the Minister decided, under s 20(4) of the Planning and Environment Act 1987 (Vic) (Planning Act), to exempt himself from the requirements of ss 17 to 19, with respect to the proposed Amendment C37 to the Ararat Planning Scheme. On the same day, the Minister adopted Amendment C37, under s 29 of the Planning Act, and approved it under s 35. The amendment introduced a new incorporated document for Section 2B of the Western Highway project, the effect of which was to authorise work to continue on the construction of Section 2B.

15 In January 2018, VicRoads engaged a contractor for the delivery of Section 2B and commenced preliminary works.[5] Work on Section 2B has encountered considerable opposition, particularly in relation to the planned removal of old trees. Work ceased for some months from June 2018, due to the activity of protesters. In addition, a number of Djab Wurrung traditional owners are seeking declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), in respect of six trees of particular significance.[6]

16 This proceeding was reconstituted during 2018, in light of the Minister's decisions of 17 December 2017. A consolidated further, further amended statement of claim, with further and better particulars, was filed on 16 October 2018. The plaintiffs now seek judicial review of three acts of the Minister:

(a) the Minister's Assessment under the EE Act, published in May 2013;

(b) the Minister's Exemption Decision under s 20(4) of the Planning Act, made on 17 December 2017; and

(c) the Minister's Adoption and Approval of Amendment C37, also dated 17 December 2017.

17 The plaintiffs seek remedies in the form of declarations, that the Minister's Assessment, the Exemption Decision and the Adoption and Approval were and are invalid, to the extent that they applied to the Section 2B works. They also seek declarations that by reason of s 6(2) of the EE Act, and s 8C(1)(a) and s 8C(1)(ii) of the EE Act, it is unlawful for VicRoads to proceed with the Section 2B works.

18 The issues for determination, and a summary of my conclusions in relation to each, are as follows:

(1) Are the Section 2B works 'works' to which the EE Act applies, by operation of s 8B(7) of the EE Act?

Yes.

(2) Is the effect of s 8C(1)(a) of the EE Act that the Section 2B works must not proceed in the absence of a valid Ministerial Assessment?

No. The effect of s 8C(1)(a) is that the Stage 2 works, which included the Section 2B works, could not proceed until VicRoads had prepared an EES and submitted it to the Minister for his assessment. That occurred in August 2012.

(3) Is the effect of s 8C(1)(b) of the EE Act that the Minister could not:

(a) make the Exemption Decision; or

(b) adopt and approve Amendment C37,

in the absence of a valid Ministerial Assessment?

No. Section 8C(1)(b) did not apply to the Minister in this case.

(4) Is certain evidence sought to be led by the plaintiffs to establish the alleged invalidity of the Minister's decisions admissible?

No.

(5) Was the Minister's Assessment invalid on the basis of:

(a) a constructive failure to exercise jurisdiction;

(b) a failure to take into account relevant considerations or taking into account irrelevant considerations;

(c) unreasonableness or irrationality;

(d) a failure to inquire?

No. None of these grounds of jurisdictional error was established in relation to the Minister's Assessment.

(6) Is the Minister's approval of Amendment C37 under s 35 of the Planning Act amenable to challenge on the basis of the matters alleged by the plaintiffs?

Unnecessary to decide.

(7) Did the Minister rely upon the Minister's Assessment when:

(a) making the Exemption Decision;

(b) adopting and approving Amendment C37?

No.

(8) If the Minister's Assessment was invalid, and the Minister relied on it in making the Exemption Decision, was the Exemption Decision therefore invalid?

Does not arise. The Minister's Assessment was valid, and the Minister did not rely on it in making the Exemption Decision.

(9) Was the Exemption Decision invalid on the basis of unreasonableness or irrationality?

No.

(10) If the Minister's Assessment was invalid, and the Minister relied on it in adopting and approving Amendment C37, was the Adoption and Approval therefore invalid?

Does not arise. The Minister's Assessment was valid, and the Minister did not rely on it in adopting and approving Amendment C37.

(11) Was the Adoption and Approval invalid because the Minister was obliged to, and did not, take into account significant effects which he considered Amendment C37 might have on the environment?

No. The Minister did not have an implied duty to take into account significant environmental effects when adopting and approving Amendment C37. He was obliged to take those effects into account in preparing the amendment, and did so.

(12) In the event that any of the plaintiffs' grounds are made out, is the relief sought by the plaintiffs available and, if it is, should the Court exercise its discretion to grant declaratory relief in the circumstances?

As none of the plaintiffs' grounds is made out, there is no basis to grant the declaratory relief sought. The proceeding must be dismissed.

19 My reasons for those conclusions follow. The first part of my reasons deals with issues related to the validity of the Minister's Assessment under the EE Act, published in May 2013. The second part deals with the validity of the Minister's Exemption Decision and his Adoption and Approval of Amendment C37, in December 2017.

Are the Section 2B works 'works' to which the EE Act applies?

20 The plaintiffs' case was, in large part, premised on a contention that the Section 2B works are 'works' to which the EE Act applies, and therefore cannot proceed in the absence of a valid Minister's Assessment under that Act. The defendants took issue with this premise, on several grounds. Resolution of this issue requires examination of the relevant provisions of the EE Act, and the Minister's advice that an EES was required for the Stage 2 project.

21 The EE Act provides an integrated process for the assessment of the environmental works to which the EE Act applies. There are two ways in which the EE Act may apply to works. The first is where the works are declared, under s 3, to be public works for the purposes of the EE Act, by order of the Minister published in the Government Gazette. In that event, ss 4 to 6 of the EE Act apply to those works.

22 The Stage 2 project was not the subject of a declaration made under s 3 of the EE Act, and so ss 4 to 6 do not apply to it.[7] In particular, s 6(2) did not apply to preclude work on the Stage 2 project being 'commenced or proceeded with until the assessment of the Minister with regard to the environmental effects has been considered by the relevant Minister'.

23 Section 8 of the EE Act provides the second way in which the EE Act may apply to works. As will be seen, it was the way in which the EE Act applied to the Stage 2 project. Section 8 provides:

Advice of Minister as to whether statement required

(1) If a person or body (the relevant decision-maker) is required by any Act or law to make a decision in respect of works that could have a significant effect on the environment, the relevant decision-maker may seek the advice of the Minister as to whether a statement should be prepared for the works.

(2) The relevant decision-maker must seek the advice of the Minister under subsection (1) if requested to do so by the Minister responsible for the administration of the Act or law under which the decision is made.

(3) A proponent of works that could have a significant effect on the environment may seek the advice of the Minister as to whether a statement should be prepared for the works.

(4) If the Minister considers that a decision is required by an Act or law in respect of works that could have a significant effect on the environment, the Minister may by notice in writing, require the person or body required to make that decision (the relevant decision-maker) to refer the matter to the Minister for advice as to whether a statement should be prepared for the works

24 Section 8 was inserted into the EE Act in its current form by the Environment Effects (Amendment) Act 2005 (Vic) (EE Amendment Act), which also added ss 8A to 8G to the EE Act. Before 2005, only a decision-maker could seek the advice of the Minister as to whether an EES was required for works. The 2005 amendments enabled a proponent of works - such as VicRoads - to seek the advice of the Minister. The then Minister's second reading speech explained the rationale for the amendments:[8]

New section 8A will empower the minister to specify statutory decisions that are to be put 'on hold' pending the minister's decision on whether an EES should be prepared.

New section 8B sets out the process when a matter comes to the minister for advice under section 8.

...

In order to strengthen the coordination of decision making, new section 8C(1) will clarify that statutory decisions must be put 'on hold' until after the decision-maker has considered the minister's assessment of the environmental effects of a proposal.

The EES process will remain focused on those projects that have the potential for environmental effects of regional or state significance. The overall system of approvals legislation in Victoria, including for example the Planning and Environment Act 1987, the Environment Protection Act 1990, and the Minerals Resources Development Act 1990, provides a robust framework for decision making on such proposals. The reformed EES process can be applied in combination with these core statutory procedures to effectively address the environmental implications of strategically significant development proposals.

In many ways the Victorian system is clearer and more robust than that in other Australian States. Other States have been trying to 'catch up' with Victoria in recent years by tackling a patchwork of multiple approvals that apply to major projects. The reforms introduced by the bill and the new guidelines put Victoria further ahead when it comes to striking the right balance between economic, social and environmental goals. In doing so we are protecting the environment for future generations.

The effect of the reforms to the environmental impact assessment system now being introduced will modernise and improve the workability and effectiveness of the system.

...

Finally these reforms confirm the government's commitment both to facilitate major development in this state whilst at the same time advancing the essential priority of achieving an environmentally sustainable state.

No decision to be made on works until advice given

If a matter comes to the Minister for advice under section 8, the Minister may, by notice in writing to the relevant decision-maker and any other person or body authorised under an Act or law to make a decision with respect to the works, direct the relevant decision-maker or the person or body not to make that decision until the Minister has given advice in respect of the works under section 8B.

26 Section 8B provides for the advice to be given by the Minister:

Advice of Minister

(1) This section applies if a matter comes to the Minister for advice under section 8.

(2) The Minister may by notice in writing require any relevant decision-maker or proponent of the works to provide the Minister with any information that the Minister reasonably requires to decide whether a statement should be prepared for the works.

(3) The Minister must decide whether -

(a) a statement should be prepared for the works; or

(b) a statement is not required for the works if conditions specified by the Minister are met; or

(c) a statement is not required for the works.

(4) On making a decision under subsection (3), the Minister must -

(a) by notice in writing advise the proponent of the works, and any relevant decision-maker from whom the matter has come to the Minister for advice under section 8 -

(i) that a statement should be prepared for the works; or

(ii) that a statement is not required for the works if conditions specified by the Minister are met; or

(iii) that a statement is not required for the works; and

(b) give to that relevant decision-maker any other advice or assistance the Minister thinks fit to enable a decision to be made.

(5) A notice under subsection (4)(a)(i) must specify the procedures and requirements under the guidelines that are to apply to the statement.

(6) The Minister must also give the notice under subsection (4)(a) to each person or body to whom a direction is given under section 8A in respect of the works.

(7) If the Minister gives a notice under subsection (4)(a)(i) in relation to works, the works are deemed to be works to which this Act applies.

27 Section 8C provides for circumstances in which decisions are not to be made, and works are not to proceed, until the Minister's assessment has been considered:

(1) If the Minister gives a notice under section 8B to a person or body (other than the proponent) advising that a statement should be prepared for works -

(a) the works must not proceed; and

(b) no decision can be made under an Act or law by that person or body in relation to the works until -

(i) the proponent has caused the statement to be prepared and submitted to the Minister for the Minister's assessment of the environmental effects of the works; and

(ii) the assessment has been considered by that person or body.

(2) Sections 4(3), 5, 6(1) and 6(3) apply to the preparation of a statement referred to in subsection (1).

28 The interaction between the EE Act and the Planning Act is dealt with in s 8F:

Only certain planning decisions affected

Sections 8 to 8E do not apply to decisions under the Planning and Environment Act 1987 except the following decisions -

(a) a decision to adopt a planning scheme or an amendment to a planning scheme;

(b) a decision to approve a planning scheme or an amendment to a planning scheme;

(c) a decision to amend or to refuse to amend an application for a permit;

(d) a decision to grant or to refuse to grant a permit or an amendment to a permit.

29 The operation of s 8C in this case depends on two matters:

(a) first, the scope of the 'works' in respect of which the Minister's advice was sought; and

(b) second, the persons or bodies to which the Minister gave notice under s 8B.

30 On 3 September 2010, VicRoads submitted a referral form to the Minister, seeking the Minister's advice as to whether an EES was required for the Western Highway Project - Stage 2. The brief outline of the project provided in the referral was as follows:

Project Title: Western Highway Project - Stage 2 (Beaufort to Ararat)

Project location: (describe location with AMG coordinates and attach A4/A3 map(s) showing project site or Investigation area, as well as its regional and local context)

The project area is between the railway crossing west of Beaufort and Heath Street, Ararat. A notional 1500m either side of the existing Western Highway was identified as the width of the study area corridor. The township of Buangor is situated approximately half way along the 40km corridor.

Railway crossing, Beaufort: 709390 N 5854983 E (approx.)

Heath Street, Ararat: 673476 N 5871472 E (approx.)

The project area is shown in Figure 1.

Short project description (few sentences):

The section of the Western Highway subject to this referral, between Beaufort and Ararat, commences about 160km west of Melbourne, and covers 40km between the two towns. The works will include the construction of a two-lane, dual carriageway freeway containing one railway crossing, five creek and river crossings, and potentially a bypass of the township of Buangor halfway along the corridor.

The areas of interest for the potential alignment options are shown in Figure 2 to Figure 6, the alignments would comprise of either a new single carriageway beside the existing highway, or a dual carriageway realignment which deviates from the existing road reserve.

31 Figure 1 was a map of the area between Beaufort and Ararat, showing the project location divided into four zones. Zone 1 was closest to Beaufort, and Zone 4 closest to Ararat. The town of Buangor was within Zone 3.

32 The referral then provided a more detailed description of the main components of the project:

The corridor is considered in four zones for planning and design development purposes, as shown in the attached figures.

The project is likely to comprise of a combination of the following, the extent of which will be determined by the options selected through further ongoing assessment:

• Duplication - adding a second carriageway adjacent to the existing highway (existing highway retained and used as one of the two carriageways) and
• Realignment - construction of a dual carriageway on a new alignment (existing highway retained as a service road providing access to properties and local roads)

The two carriageways will be separated by a central median. The Right-of-Way (ROW, or road reservation) requirements assumed for this project are [an] additional 50m width for duplications, and approximately 80m width for realigned dual carriageway.

33 As to the project alternatives, the referral stated that, within each of the four zones shown in Figure 1, a number of high level preliminary alignment options had been identified for further assessment. The areas of interest were shown in Figures 2 to 6. Figure 5 showed the alternatives that affected the Mackenzies' properties in Zone 4, between Hillside Road and Heath Street, Ararat. The key alternatives in Zone 4 were described as 'Duplicate or realign south of existing carriageway adjacent to Langi-Ghiran State Park'.

34 On 27 October 2010, the Minister advised that an EES was required for the proposed duplication of the Western Highway between Beaufort and Ararat (Stage 2), 'as described in the referral accepted on 22 September 2010'. The Minister's reasons for decision described the project as follows:

VicRoads proposes to duplicate the Western Highway between Beaufort and Ararat (Stage 2) as part of the larger duplication of the Western Highway between Ballarat and Stawell, as identified in the Victorian Transport Plan.

The project between Beaufort and Ararat will involve the construction of a duplicated road for approximately 40 kilometres.

35 On the same day, the Minister wrote to VicRoads, the Minister for Roads and Ports, the Ararat Rural City Council, and the Pyrenees Shire Council, giving notice under s 8B(4)(a)(i) of the EE Act that an EES was required for the project. The letters to the councils were as follows:

REFERRAL UNDER THE ENVIRONMENT EFFECTS ACT 1978

WESTERN HIGHWAY DUPLICATION - BEAUFORT TO ARARAT

VicRoads has sought my advice on the need for an Environment Effects Statement (EES) under the Environment Effects Act 1978 (EE Act), for the proposed duplication of the Western Highway between Beaufort and Ararat.

I have determined that an EES is required for this project, as described in the referral accepted on 22 September 2010 for the reasons attached.

This letter provides notice to you, as a relevant decision-maker, under both sections 8A and 8B(4) of the EE Act. Therefore, I draw your attention to the provisions of section 8C of the Act, which prevent decisions from being made and works from proceeding until the EES has been completed and my subsequent assessment of the project has been considered. I raise this in the context of your future decisions under the Planning and Environment Act 1987.

36 In September 2011, the Minister published Scoping Requirements for the EES to be prepared for the Western Highway Duplication - Section 2 - Beaufort to Ararat. The Scoping Requirements described the project in the following terms:

The proposed starting point for the duplication of the Western Highway between Beaufort and Ararat is the railway crossing west of the Beaufort township. The duplication is proposed to terminate 38 kilometres (km) to the west at Heath Street, Ararat.

The project would involve the construction of a two-lane, dual carriageway highway containing one rail crossing, five creek crossings and potentially a bypass of the township of Buangor. The duplicated highway would require a nominal width of 80 metres. However, if the carriageway of the existing highway is realigned, up to an additional 50 metres would be needed to achieve appropriate design requirements.

...

The investigation area includes a general corridor approximately 1,500 metres either side of the existing highway alignment. Included within this area are the township of Buangor, approximately 20km west of Beaufort, and the Langi Ghiran State Park, located approximately 10km west of Buangor.

37 VicRoads prepared an EES, which was approved for public exhibition in late August 2012. The Minister published his Assessment of the EES in May 2013 and, on 21 October 2013, approved and adopted Amendment C27 to the Ararat Planning Scheme. The land affected by Amendment C27 was 'land within 1.5 kilometres to the existing Western Highway between Beaufort and Ararat as illustrated in the Western Highway Project Section 2 Environment Effects Statement and contained in Figure 1 of the Incorporated Document forming part of this amendment'.[9] Figure 1 was a map of the area between Ararat and Beaufort, showing the approved route of the Western Highway duplication. This included the Option 1 alignment west of Buangor and south of Langi Ghiran State Park.

38 After VicRoads realised that the incorporated document included by Amendment C27 had lapsed, it requested the Minister to prepare another amendment to the Ararat Planning Scheme. It wrote to the Minister on 2 June 2017, explaining the background to its request and the need for a further amendment:

Introduction

1.1 VicRoads requests that the Minister for Planning intervene under section 20(4) of the Planning and Environment Act 1987 (the Act) to prepare, adopt and approve planning scheme amendments without notice to allow duplication of the Western Highway between Buangor and Ararat.

1.2 The purpose of the approval sought in the enclosed documentation is to enable VicRoads to recommence the construction works for Section 2B of the Western Highway Duplication Project. This approval is required as a result of the expiry of the previous incorporated document approved by the Minister for Planning and seeks to reinstate the planning authority granted to VicRoads by that previous document to enable construction works to recommence.

...

Background and Context

The Project

2.1 The duplication of the Western Highway between Ballarat and Stawell (the Project) was identified by the State of Victoria in the 2008 Victorian Transport Plan as a major initiative for the State of Victoria.

2.2 The project primarily involves the duplication of the Western Highway (that is, the creation of a 4 lane divided road), together with the construction of sealed road shoulders, safety barriers, protected turning lanes, intersection improvements, and service lanes for local access at certain locations.

2.3 The Project has been broken into the following separate sections of the Western Highway:

(a) Section 1, being the section of the Western Highway connecting Ballarat to Beaufort;

(b) Section 2, being the section of the Western Highway connecting Beaufort to Ararat; and

(c) Section 3, being the section of the Western Highway connecting Ararat to Stawell.

...

2.5 Section 2 of the Project has been further divided into Section 2A, Section 2A+ (Buangor bypass) and Section 2B. Section 2A of the Project (being the section of the Western Highway between Beaufort to the Buangor bypass) was completed in about May 2016. Section 2A+ (being the construction of the Buangor bypass) was completed on 30 November 2016. Section 2B of the Project concerns an approximate 12.5km section between Buangor and Ararat and has not yet been constructed.

...

2.7 On 27 October 2010, the Minister for Planning (Minister) determined that Section 2 of the Project required an Environmental Effects Statement (EES) under the Environment Effects Act 1978 (Vic). VicRoads was responsible for the preparation of the EES.

2.8 The Minister assessed the EES and released an Assessment Report (Assessment) in May 2013. Tab 3 of the Assessment sets out the decisions made by the Minister in response to the recommendations contained in [...] the Inquiry Report dated 11 February 2013, which included the decision to implement the 'Option 1' alignment configuration for Section 2B of the Project.

2.9 Following the Assessment, VicRoads became responsible for implementing the decisions contained in the Assessment.

...

2.16 Following the approval by the Minister of the 2013 Incorporated Document, VicRoads has taken a number of steps to complete the Project.

...

3.1 The amendment is required in order to complete the duplication of Section 2 of the Project and specifically to enable construction of section 2B of the Project.

...

3.3 This amendment will permit construction to continue on the alignment determined by the EES process (referred to at paragraphs 2.7 to 2.8 above) which provides a balance between matters including safety, environmental and social needs. ...

39 At the end of a process that will be examined later in this judgment, the Minister adopted and approved Amendment C37. The explanatory report for the amendment included an explanation of what the amendment does:

• Replaces an expired Incorporated Document with a new Incorporated Document for Section 2B of the Western Highway Project between Buangor and Ararat; and
• Updates the relevant clauses to reflect the new Incorporated Document title.

The Amendment makes the following changes to the Ararat Planning Scheme:

• Amends the schedules to Clause 52.03 and Clause 81.01 to introduce a new Incorporated Document for Section 2B of the Western Highway Project to exempt use and development associated with the project from requiring a planning permit. This new incorporated document will replace the expired incorporated document for Western Highway Project: Section 2 - Beaufort to Ararat Incorporated Document, July 2013.

There followed an explanation of why the amendment was required:

The amendment is required to replace an expired Incorporated Document with a new Incorporated Document to facilitate the duplication of the Western Highway between Buangor and Ararat.

The Western Highway is being progressively duplicated and upgraded between Ballarat and Stawell to provide for a safer and more efficient four-lane divided route. On 31 October 2013, Amendment C27 to the Ararat Planning Scheme was gazetted which reserved land for the duplication of Section 2 - Beaufort to Ararat Incorporated Document, July 2013 in the Ararat Planning Scheme to exempt the project from the need for a specific planning permit.

The duplication of the Western Highway has progressively extended west from Ballarat to Buangor. In order to continue works of the duplication between Buangor and Ararat, the expired Incorporated Document gazetted as part of Amendment C27 to the Ararat Planning Scheme needed to be replaced with an updated Incorporated Document (Western Highway Project Section 2B (Buangor to Ararat), Incorporated Document, June 2017) in the Ararat Planning Scheme.

40 The land affected by Amendment C37 was shown in Figure 1 in the new incorporated document. It was a map of the area between Buangor and Ararat, showing the approved route of the Western Highway duplication. The route was the western section of the route that was the subject of the earlier Amendment C27, for Stage 2. It included the Option 1 alignment south of Langi Ghiran State Park.

41 As mentioned, the plaintiffs contended that Section 2B is part of the 'works' to which the EE Act applies, and that work on Section 2B cannot proceed unless the Minister has validly assessed the EES for those works. The Minister submitted that Section 2B is not the 'works' in respect of which the EE Act was engaged. That submission was as follows:

(a) The notice given by the Minister on 27 October 2013 under s 8B(4)(a)(i) of the EE Act related to the Stage 2 works.

(b) The Stage 2 works were broadly and generically defined, comprising a study area corridor of 1500 metres either side of the existing Western Highway for a length of 40 kilometres, within which a combination of duplication and realignment options were to be considered.

(c) In contrast, the Section 2B works concern only a part of the highway length covered by the Stage 2 works - a stretch of 12.5 kilometres between Buangor and Ararat - and were defined much more narrowly and tightly, by reference to a specific alignment for the road corridor.

(d) The Minister considered the Assessment at the time of his preparation, adoption and approval of Amendment C27, in 2013. That decision related to the Stage 2 works. The Assessment had no role to play in relation to the separate, later decisions made in 2018 in connection with Amendment C37, because those decisions were about different works.

(e) The EE Act therefore did not apply to the Section 2B works.

42 I cannot accept this submission. It is perfectly clear from VicRoads' referral to the Minister of 22 September 2010 that the 'works' in respect of which the Minister's advice was sought included the duplication of the Western Highway between Buangor and Ararat - the part of the Stage 2 project that is now called Section 2B. Section 2B was part of the 'works' that were the subject of the Minister's advice of 27 October 2010. It is also plain that Amendment C37 was proposed and adopted to enable completion of the Stage 2 project that was described in VicRoads' referral, due to the unexpected expiry of the incorporated document included in the Ararat Planning Scheme by Amendment C27.

43 The 1,500 metre wide investigation area referred to in the Minister's submission was not part of the project described in VicRoads' referral or in the Minister's advice. The investigation area was first identified in the Scoping Requirements for the EES, by which time the 'works' in respect of which the EES was required had already been defined in the Minister's advice, by reference to VicRoads' referral.

44 Section 2B is not a separate project. It is the western half of the Stage 2 project that the Minister determined, in October 2010, required an EES. It follows that the plaintiffs were correct to contend that Section 2B is part of the Stage 2 works to which, by reason of s 8B(7), the EE Act applies.

Effect of s 8C(1)(a) of the EE Act on Section 2B works

45 As noted, the Minister sent notices under s 8B to both the Ararat Rural City Council and the Pyrenees Shire Council. The plaintiffs submitted that this engaged s 8C(1) of the EE Act, which provides that, if notice is given under s 8B to someone other than the proponent:[10]

(a) the works must not proceed; and

(b) no decision can be made under an Act or law by that person or body in relation to the works until -

(i) the proponent has caused the statement to be prepared and submitted to the Minister for the Minister's assessment of the environmental effects of the works; and

(ii) the assessment has been considered by that person or body.

46 The structure of s 8C(1) is unusual, with the result that the relationship between the conditions in (i) and (ii) and the prohibitions in (a) and (b) is not clear. The plaintiffs contended that the effect of s 8C(1) in this case is that the Section 2B works could not proceed until after the Minister had completed a valid assessment of the EES, and the assessment had been considered by the councils. They submitted that it did not matter that it was the Minister, not the councils, who was the relevant planning authority in relation to the Stage 2 project, and that the councils were not called on to make any decision in relation to the works.

47 This proposition was disputed by the defendants. They argued that s 8C(1) should be read so that the condition in (ii) need only be satisfied where the person or body to whom notice has been given under s 8B has a decision to make in relation to the works. To read the provision in the way contended by the plaintiffs would mean that a person or body with no decision to make could hold up the works by omitting to consider the Minister's assessment. That would, VicRoads submitted, be a nonsense construction.

48 In my view, the construction of s 8C(1) put forward by the defendants is the preferable one. Although the words of the provision are capable of bearing the meaning submitted by the plaintiffs, it achieves no discernible legislative purpose to give them that meaning.

49 The primary purpose of the EE Act is to require the environmental effects of certain works to be assessed. The purpose of the EE Amendment Act, which inserted ss 8 to 8G, was to amend the EE Act to improve its operation.[11] It appears from the Minister's second reading speech that the amendments were intended to strike 'the right balance between economic, social and environmental goals' and 'modernise and improve the workability and effectiveness of the system'.[12] This purpose would not be met if a person or body with no decision-making responsibility for works could stop the works from proceeding by failing to consider the Minister's assessment of the EES prepared for the works. As VicRoads submitted, that construction makes no sense.

50 The effect of s 8C(1)(a) in this case is, therefore, that work on Stage 2 - including Section 2B - of the Western Highway duplication project could not proceed until VicRoads had prepared the EES and submitted it to the Minister for his assessment. That occurred in August 2012. After that date, s 8C(1)(a) did not prevent work on Stage 2 from proceeding.

Effect of s 8C(1)(b) of the EE Act on the Minister's decisions

51 The plaintiffs also contended that the decisions made by the Minister in December 2018, culminating in the gazettal of Amendment C37 to the Ararat Planning Scheme, were invalid because they were informed by the Minister's Assessment of May 2013, which was itself invalid. Although it was not entirely clear, I understood this contention to be, at least in part, based on s 8C(1)(b) of the EE Act.

52 Section 8C(1)(b) puts certain statutory decisions 'on hold' until after the decision-maker has considered the Minister's assessment of the environmental effects of a project. The decision-makers it constrains are those persons or bodies, other than the proponent, to whom the Minister gives notice under s 8B that an EES is required for the project. In that event, such a person or body cannot make any decision in relation to the works until, first, the proponent has prepared an EES and submitted it to the Minister for assessment, and, second, the Minister's assessment has been considered by the person or body.

53 In this case, the Minister gave notice that an EES was required, under s 8B(4)(a)(i) of the EE Act, to the Ararat Rural City Council and the Pyrenees Shire Council. This meant that neither council could make a decision in relation to the proposed works until it had considered the Minister's assessment of the EES to be prepared by VicRoads.

54 The effect of s 8F of the EE Act is that ss 8 to 8E of that Act can apply to a decision under the Planning Act to adopt and approve an amendment to a planning scheme.[13] However, s 8C(1)(b) had no application to the Minister's adoption and approval of Amendment C37 in December 2017, because he did not give himself notice under s 8B.

55 Further, as I have found, ss 4 to 6 of the EE Act did not apply directly to the Stage 2 works, because they were not declared to be 'public works' under s 3 of the EE Act.[14] This was not a case like Friends of Mallacoota Inc v Minister for Planning,[15] where the relevant decision-maker could not make a decision until an EES had been prepared and assessed by the Minister.[16] In this case, a valid assessment of the EES by the Minister was not a precondition to the Minister making a decision in his capacity as a planning authority. That means that the Minister could adopt and approve Amendment C37 in December 2017, whether or not the previous Minister's Assessment was valid.

56 In any event, I have concluded that the Minister's Assessment was valid. Before explaining my reasons for that conclusion, it is necessary to address the admissibility of certain evidence that the plaintiffs sought to rely on in relation to the validity of the Assessment.

57 The plaintiffs tendered a large amount of evidence to which the defendants objected on the ground that it was irrelevant. The parties accepted that I should rule on the admissibility of this evidence, to the extent necessary, in the course of making my decision.

58 A good deal of this evidence was not referred to in the plaintiffs' pleadings, their written submissions, or in extensive oral submissions at trial. For example, there was a lot of correspondence exhibited to affidavits of the plaintiffs' solicitor, the relevance of which was never explained. I have proceeded on the basis that material that was tendered but not referred to by the plaintiffs was not relevant to their case, and was therefore not admissible.

59 Then there was a body of evidence that was mainly directed to establishing that the EES was flawed and hence the Assessment was invalid, characterised by the defendants as 'post hoc opinion evidence'. It comprised a number of expert reports that were at variance with reports that informed the EES.

60 Some of the reports were referred to in detailed particulars set out in a schedule to the statement of claim, as follows:[17]

(a) a report by Paul Foreman of Blue Devil Consulting, dated October 2015, entitled 'Vegetation Assessment of VicRoads Option 1 By-pass on private land adjoining Langi Ghiran State Park';

(b) a report of Stephen Mueck of Biosis, dated 22 April 2016, entitled 'Western Highway Project Stage 2B Independent Review';

(c) a report by Andrew McMahon of Ecology Australia, dated 25 February 2016, entitled 'Western Highway Duplication Beaufort to Ararat: Alternate Options, Hillside Road Area; Peer Review'; and

(d) a report by Lincoln Kern of Practical Ecology Report, dated 20 July 2016, entitled 'Estimated Net Gain Losses for Alternative Alignments of Western Highway Duplication: Section 2: Beaufort to Ararat, Hillside Rod. Area - Comparison of environmental impacts'.

Two further reports were referred to in the plaintiffs' written submissions, namely:

(e) a report prepared by Sandra Mijatovic and Aaron Organ of Ecology & Heritage Partners, dated 27 May 2016, entitled 'Assessment of degraded treeless vegetation for the Western Highway Project Section 2'; and

(f) a second report prepared by Mr McMahon of Ecology Australia, dated 7 June 2016.

61 Some additional reports were referred to by the plaintiffs during the trial. During their opening submissions, the plaintiffs referred to a report of Mr Foreman of Blue Devil Consulting, dated 23 June 2014, entitled 'Rapid assessment of the ecological impact of proposed Western Highway Project (Section 2, Beaufort to Ararat) - Option 1 bypass in vicinity of Hillside Road (adjoining Langi Ghiran State Park)'. In closing, there was also mention of two expert statements produced in 2018 - one by Mr Foreman of Blue Devil Consulting dated May 2018, and another by Mr McMahon of Ecology Australia dated 30 November 2018.

62 All of these reports post-dated the Minister's Assessment, and two of them were prepared after the Minister's Adoption and Approval of Amendment C37. The defendants objected to this evidence under ss 55(1) and 56(2) of the Evidence Act 2008 (Vic), on the ground that it was not relevant to any fact in issue or any relief sought in the proceeding.

63 I understood the plaintiffs' position to be that the reports were relevant in two ways:

(a) All of the reports were relevant to the plaintiffs' contention that the Minister's Assessment of May 2013 was invalid, because of factual errors in the EES.[18] They relied on the reports to establish that areas of land were incorrectly identified in the EES as 'Degraded Treeless Vegetation' for the purposes of Victoria's Native Vegetation Framework. The reports supported their position that these areas of land were in fact patches of native vegetation that had to be mapped and assessed under the Native Vegetation Framework, and were also suitable habitat for the Golden Sun Moth. The reports also supported the plaintiffs' contention that the EES did not identify patches of vegetation known as the 'White Box - Yellow Box - Blakely's Red Gum (Box Gum) Grassy Woodlands and Derived Grasslands community' (Box Gum community), a community listed as critically endangered under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

(b) In addition, the reports were relevant to their argument that the Minister had failed to take into account significant effects that Amendment C37 might have on the environment, when making the Adoption and Approval decision in December 2017.[19]

64 Acknowledging that all of the reports post-dated the Minister's Assessment, the plaintiffs submitted that they were admissible in relation to the validity of the Assessment on the basis identified in City of Melbourne v Neppessen.[20] That case involved judicial review of the opinion of a Medical Panel, which the plaintiff contended was legally unreasonable. Niall JA received expert evidence as relevant to whether the opinion lacked an evident intelligible basis. His Honour made it clear that there was no role for the evidence on the question of whether the Panel's opinion was the correct or preferable one.[21] In this case, the grounds of challenge to the Assessment (although not the Adoption and Approval of Amendment C37) include legal unreasonableness.

65 The defendants submitted that the starting point in a judicial review proceeding is that the evidence should be confined to the evidence that was before the decision-maker.[22] However, they accepted that there were circumstances in which evidence that was not before the decision-maker would be admissible in a judicial review proceeding. Those circumstances were limited to cases where expert evidence may assist in determining whether the decision under review was legally unreasonable because there was no intelligible foundation for it,[23] or because of a failure to make an obvious inquiry about information that was readily available.[24] Those circumstances were not present in this case. Evidence might also be admissible on a question of jurisdictional fact,[25] which did not arise here.

66 I do not consider that any of the reports objected to are admissible in relation to the validity of the Minister's Assessment, for the following reasons:

(a) First, as I have found, a valid assessment under the EE Act was not a precondition to the Minister's adoption and approval of Amendment C37. On one view, there is no need for me to determine whether the Assessment was valid.

(b) Second, all of the reports were prepared long after the Minister had completed his Assessment, two of them in 2018. They were not relied on in support of an argument that the Assessment lacked an evident and intelligible basis. Rather, the plaintiffs contended that the Assessment was legally unreasonable because it relied on some factual material that, according to their expert reports, was wrong. As I find below, there was no reason in May 2013 for the Minister to make further inquiries about the accuracy of the material that informed the EES. The contents of the reports - even supposing they could have been available in May 2013 - were therefore not relevant.

(c) Third, opinion about the matters canvassed in the reports is not uniform. During 2017, VicRoads provided three reports to the Minister that also expressed conclusions about the categorisation of some areas as Degraded Treeless Vegetation, the extent of suitable Golden Sun Moth habitat, and whether some patches of native vegetation should be identified as Box Gum community.[26] These conclusions were different from those in the reports that the plaintiffs sought to rely on. Resolving these differences of opinion would have involved an impermissible review of the merits of the Minister's Assessment.

67 Nor do I consider that the reports are admissible in relation to the challenge to the Adoption and Approval of December 2017. The submissions made for the plaintiffs, both written and oral, did not reveal how the reports were said to be relevant to the validity of that decision. The plaintiffs did not contend that the Adoption and Approval was legally unreasonable, and did not identify any basis on which the two statements prepared in 2018 could have been relevant to the validity of the decision. Nor did they submit that the Minister was obliged to have regard to the reports from 2015 and 2016 in making the Adoption and Approval decision. In addition, as I explain below, significant environmental effects were not a mandatory consideration for the Minister when making that decision, although the evidence was that he did have regard to them.[27]

68 The plaintiffs submitted that 'the serious and admitted errors in the present case, when combined with the importance of the EES process being properly complied with, justify this evidence being admitted'.[28] I reject this submission. In my view, it amounted to a submission that a considerable volume of evidence should be received to enable the plaintiffs to challenge, impermissibly, the merits of the Minister's Assessment and the subsequent Adoption and Approval of Amendment C37.

69 I understand that MairiAnne Mackenzie and Iona Mackenzie are deeply aggrieved by the decisions that they challenge in this proceeding, and in particular by the selection of the Option 1 alignment that cuts through their land. It is easy to have sympathy for them, and to respect their commitment to contesting the selection of that route. In doing so, they have provided VicRoads with a number of reports that question the accuracy of the biodiversity and habitat assessments made for the EES in 2012, which informed the selection of the Option 1 alignment.

70 However, the merits of the alignment selection are not for this Court to decide on a judicial review application. The Court's jurisdiction is limited to reviewing the lawfulness of the Assessment and the Minister's decisions relating to Amendment C37. This should have been understood by the plaintiffs' legal representatives, if not by the plaintiffs themselves. The undisciplined approach taken to the plaintiffs' evidence suggests that it was not. The result was a bloated court book, containing a large amount of irrelevant material that distracted from the real issues for determination in the proceeding.

71 In conclusion on this issue, I echo the observations made by Weinberg J in Australian Retailers Association v Reserve Bank of Australia.[29] Although in some judicial review cases, additional evidence not before the decision-maker may be relevant and admissible:[30]

It does not follow that there is open slather, in cases of judicial review, to lead any evidence that may be thought to impugn, or support, the merits of the decision at issue. Proceedings for judicial review are not, and should not be regarded as, full blown trials. They should not ordinarily require the tender of new evidence in relation to the decision under challenge, or the resolution of heavily contested issues of fact. When matters are conducted in a way that involves an enormous amount of court time, as well as judgment writing time, other litigants, whose cases are as important to them as this case may be to the parties in this proceeding, are deprived of access to the Court, and a timely resolution of their cases.

72 Judicial review of planning decisions is no different. It will be a rare case in which evidence that was not before the decision-maker is relevant. Parties and their legal advisers should bear in mind the limits of judicial review, and take care to not to burden the Court and the other parties with irrelevant material.

73 The plaintiffs contended that the Minister's Assessment of May 2013 was invalid for several types of jurisdictional error:

(a) failure to carry out the Minister's statutory task under the EE Act, described as being 'to consider the environment that might be impacted by the project the subject of the assessment and to assess any impacts of the project on that environment';[31]

(b) having regard to irrelevant considerations;[32]

(c) failing to have regard to relevant considerations;[33]

(d) failing to inquire about readily available information that was centrally relevant to the statutory task;[34] and

(e) legal unreasonableness.[35]

74 In relation to the first four species of jurisdictional error, the plaintiffs relied on five alleged factual errors in the EES, which informed the Minister's Assessment.

75 The plaintiffs contended that the Minister's Assessment was legally unreasonable because he concluded that the alignment options selection process and specific design measures had attempted to avoid and minimise the impact on native vegetation to the extent practicable, based on a number of factual errors, including what I will call the 'large old trees error'.

76 Before turning to these grounds, I make some general observations about the nature of a Ministerial assessment under the EE Act, and the Minister's Assessment in this case.

77 The EE Act provides little guidance as to the nature of the statutory task to be performed by the Minister in making an assessment. It contemplates that an EES prepared by a proponent of works is 'for the Minister's assessment of the environmental effects of the works'.[36] As discussed, where an EES is required, certain decisions may not be made until after the Minister's assessment has been considered by the decision-maker.[37]

78 What is clear is that the Minister's assessment under the EE Act is not a decision whether or not to approve the relevant project. Its purpose is to inform the ultimate decision-maker of the environmental effects of the proposed works. The opinions and conclusions expressed in an assessment do not bind the ultimate decision-maker, who may decide 'whether the basis disclosed for the opinion contained in the assessment should be accepted'.[38]

79 The EE Act prescribes no framework within which an assessment must take place. In each case, it is for the Minister to determine what the assessment should comprise.[39] Unlike, for example, the Transport Integration Act 2010 (Vic), the EE Act contains no vision statement, policy objectives, or decision-making principles.[40] There is in the EE Act no 'statutory indication of the weight to be given' to any particular matter, or to any aspect of the environment that may be affected by the works.[41] Contrary to the plaintiffs' submission,[42] the EE Act does not require application of the precautionary principle by the Minister.[43] It follows that, in making an assessment of the environmental effects of a project, it is also for the Minister to determine the attribution of weight between those matters identified as relevant to the assessment.[44]

80 Once it is established that the EE Act applies to the works in question, the validity of the Minister's assessment does not depend on the existence of any jurisdictional fact. All that is required is that the Minister must, as a matter of fact, make an assessment of the environmental effects of the proposed works.[45]

81 The Minister's task does not involve making a decision that directly affects legal rights and interests. In some cases, the EE Act obliges the ultimate decision-maker to consider the Minister's assessment before making a decision. At least in those cases, the assessment has legal consequences, and is amenable to being quashed by an order in the nature of certiorari.[46] It is not so clear whether that remedy lies in cases like this one, where the ultimate decision was made by a person who was not bound to consider the assessment.[47] That question does not arise here, because the plaintiffs do not seek to have the Assessment quashed - the only remedies they seek are declarations. I accept the general proposition that, because an assessment is a statutory precondition to certain decisions, it is amenable to judicial review.

82 The stated purpose of the Minister's Assessment of May 2013 was to provide 'advice to decision-makers on the likely environmental effects of the proposal, their acceptability and how they should be addressed in relevant statutory decisions', and to inform the decisions required for the proposal to proceed, in particular approval decisions under the Planning Act and the EPBC Act. It assessed the likely adverse environmental effects of both alignment options against a set of evaluation objectives, namely:

(a) Road safety and capacity - To provide for the duplication of the Western Highway between Beaufort and Ararat to enhance the safety and capacity of this inter-regional and interstate transport link;

(b) Biodiversity - To avoid or minimise effects on flora and fauna species and ecological communities listed under the Flora and Fauna Guarantee Act 1988 (Vic) or the EPBC Act, as well as to comply with requirements under Victoria's Native Vegetation Management Framework;

(c) Infrastructure and land use - To avoid or minimise adverse effects on existing infrastructure and land uses;

(d) Amenity and landscape - To minimise dust emissions, noise, visual and other adverse effects on residents' amenity as well as effects on landscape values;

(e) Catchment values - To protect catchment values, including in relation to soils, surface water and groundwater quality, stream flows and floodway capacity, as well as to avoid impacts on beneficial uses;

(f) Cultural heritage - To protect Aboriginal and non-Aboriginal cultural heritage;

(g) Environmental management framework - To provide a transparent framework with clear accountabilities for managing environmental effects and hazards associated with the project in order to achieve acceptable environmental outcomes; and

(h) Ecologically sustainable development - To achieve an appropriate balance of environmental, economic and social outcomes, consistent with the principles and objectives of ecologically sustainable development.

83 In summary, the Assessment was a global, multidimensional assessment of the environmental effects of Stage 2 of the Western Highway duplication project. Biodiversity, including habitat, was only one of the dimensions that were assessed. As I have noted, it was for the Minister to determine what the assessment should comprise, and the attribution of weight between the matters that he considered relevant to the assessment.

Constructive failure to exercise jurisdiction

84 The plaintiffs contended that the Minister had failed to carry out the statutory task entrusted to him by the EE Act. As I have outlined above, that task was simply to make an 'assessment of the environmental effects' of the Stage 2 works.

85 The plaintiffs submitted that the Minister had failed to make such an assessment, because he had based the Assessment on the following five errors:

(a) the EES estimated that the maximum likely impact on large old trees was a loss of up to 221 trees, when the true loss would be approximately 1,581 large old trees;

(b) areas of land affected by the works, identified in the Ecology & Heritage Partners Pty Ltd in August 2012 (EHP 2012 Report) as 'Degraded Treeless Vegetation' for the purposes of the Native Vegetation Framework, and thus not mapped or assessed, were in fact patches of native vegetation under the Native Vegetation Framework that required mapping and assessment;

(c) areas of land affected by the works, identified in the EHP 2012 Report as 'Degraded Treeless Vegetation' under the Native Vegetation Framework, and thus defined as not suitable habitat for the Golden Sun Moth, were in fact suitable Golden Sun Moth habitat;

(d) the EES did not identify patches of vegetation that were in fact Box Gum community, a community listed as critically endangered under the EPBC Act;[48]

(e) the EES did not comply with the Scoping Requirements, because it did not:

(i) include an accurate description of the existing environment, clearly identifying the sources and accuracy of the information;

(ii) provide accurate details of the potential effects of the works on biodiversity including native vegetation;

(iii) address how vegetation removal has been avoided and minimised by the proposed works.

86 These alleged errors were particularised in a schedule to the plaintiffs' statement of claim, which referred to the evidence that was said to demonstrate each error.[49] Those particulars were not elaborated upon during the trial, and I have taken them as the whole of the plaintiffs' case in relation to the alleged errors in the Minister's Assessment.

87 Of the alleged errors, only the first - the large old trees error - was established; the other four were not made out. None of the alleged errors was capable of amounting to a constructive failure to exercise jurisdiction.

88 The plaintiffs contend that the Minister failed to carry out his statutory task under the EE Act because he based his assessment on the maximum likely impact of Option 1 on large old trees being a loss of up to 221 trees, when in fact the maximum likely impact was a loss of a substantially greater number of trees, estimated at 1,581 trees.

89 Chapter 13 of the EES described a number of likely impacts on biodiversity and habitat within the project area. An assessment conducted between October 2010 and January 2012 had identified:

(a) Three species listed under the EPBC Act - Dwarf Galaxias (vulnerable), Golden Sun Moth (critically endangered), and Spiny Rice Flower (critically endangered);

(b) Five State listed species - Golden Cowslip and Emerald Greenhood, which could be impacted by Option 1; Yarra Gum, which could be impacted by Option 2; and Brown Toadlet and Brown Treecreeper, which could be impacted by either alignment option; and

(c) Ten Ecological Vegetation Classes, or EVCs, of varying quality and conservation significance, of which 34.19 hectares were of Very High conservation significance for Option 1, compared with 38.93 hectares for Option 2.

90 The chapter also described the likely loss of a number of large old trees:[50]

The Project could also result in the loss of up to 221 Large Old Trees (LOTs), 140 of which are of Very High conservation significance, in Option 1 and up to 214 LOTs, of which 109 are of Very High conservation significance, in Option 2. Mitigation measures including detailed design should reduce the number of LOTs impacted by the Project. It is expected that eh actual number of LOTs impacted would be less than these totals because management measures including micro-alignment and construction planning would be implemented to minimise the number of LOTs impacted. It is expected that the impact on LOTs would be minor.

91 The figures used in Chapter 13 of the EES were apparently derived from the EHP 2012 Report, a biodiversity and habitat impact assessment report prepared for VicRoads in August 2012, which was Technical Appendix H to the EES.[51] Appendix 2.5 to the EHP 2012 Report was a table of tree location data for some 675 recorded trees within the study area. Although the location of these trees was precisely recorded, a less rigorous method was used to estimate the potential losses of large old trees, in Appendix 2.4. A footnote to that appendix noted 'Large Old Tree targets are based on estimates of trees present and potential losses within each patch, further assessment is required to determine the number of Large Old Trees within all patches within the study area'.[52]

92 As noted, the EHP 2012 Report turned out to have significantly underestimated the potential losses of large old trees. This error was not realised, however, until much later. Aaron Organ, the principal ecologist of Ecology & Heritage Partners, gave evidence at the Panel hearing in December 2012 which was consistent with the EHP 2012 Report. The error was not identified during the Panel's inquiry, including in a report of Mark Sheppard of Practical Ecology, prepared for MairiAnne Mackenzie and provided by her to the Panel.

93 Part A of the Panel's report of 11 February 2013 examined the environmental effects of the project, and the alternative alignment options, in separate chapters dealing with planning and land use, traffic and transport, soils and geology, groundwater, surface water, biodiversity and habitat, cultural heritage, air quality, noise and vibration, visual and landscape, social, economic, and matters of national environmental significance.

94 Chapter 11 dealt with biodiversity and habitat, one aspect of which was the likely losses of large old trees. The Panel appears to have accepted the estimated losses of 221 large old trees for Option 1, and 214 large old trees for Option 2. It considered Option 1 to be the preferable alignment from a biodiversity and habitat perspective, due to 'least impact on Very High and High conservation significance vegetation'.[53] This conclusion was influenced by the preference of the Department of Sustainability and Environment (DSE) for Option 1 over Option 2, because Option 1 would involve less overall vegetation removal and would have less impact on Langi Ghiran State Park. The Panel also relied on Mr Organ's opinion that Option 1 had the least impact on vegetation of high conservation significance. The Panel's conclusions on biodiversity and habitat were:[54]

The Panel remains unclear as to why VicRoads prefers alignment Option 2 from a biodiversity and habitat perspective and considers that Mr Organ's conclusions and DSE's preference for Option 1 have greater merit.

The Panel is satisfied that ... both VicRoads Options have been well designed to avoid and minimise impacts on high conservation value native vegetation, but on balance agrees that Option 1 is preferred from a biodiversity and habitat perspective.

It is notable that the Panel reached this conclusion despite the evidence that Option 1 would involve the loss of up to 140 large old trees of Very High conservation significance, 31 more than would be lost under Option 2.

95 The Panel synthesised its consideration of the various environmental impacts in Part B of its report, which considered the alignment options for six separate sections of the project. Chapter 25 dealt with the section between Pope Road and Langi Ghiran Picnic Ground Road, adjacent to the Mackenzies' properties. The Panel concluded that Option 1 was the preferable alignment for this section, even though it would involve greater severance impact on affected properties. The most significant difference between the two options was their impact on the Very High and High conservation significance Ecological Vegetation Classes, where Option 1 had less impact than Option 2.

96 Overall, the Panel recommended the adoption of alignment Option 1. One of many factors contributing to this conclusion was the lower ecological impact of Option 1:[55]

On balance, the Panel believes the avoidance of significant vegetation, coupled with the lesser severance impact on agricultural land around and west of Buangor, and maintenance of the design objectives (such as 110 kilometres an hour for the whole project length) for Option 1 outweigh the marginal benefits of Option 2 (such as estimated costs and benefits and less severance west of Hillside Road).

97 The potential losses of large old trees was not singled out for consideration in the Panel's comparison of the alignment options. It appears to have been one of a number of matters that contributed to the Panel's conclusion that Option 1 would have a lower ecological impact than Option 2. Much greater prominence was given to the impact on vegetation of High and Very High conservation significance.

98 The Minister's Assessment of May 2013 assessed the project against the evaluation objectives of road safety and capacity, biodiversity, infrastructure and land use, amenity and landscape, catchment values, cultural heritage, environmental management framework, and ecologically sustainable development. In relation to biodiversity and habitat, the Assessment summarised the impacts on native vegetation and matters of national environmental significance that had been identified in the EES. The Minister noted the estimated losses of 221 large old trees under Option 1 and 214 under Option 2.

99 It is worth setting out the Minister's conclusions on biodiversity in full:[56]

While the two options would have quite different impacts in the area west of Buangor near the Langi Ghiran State Park, WHP2 (both options) would result in significant impacts on:

• native vegetation of VHCS and HCS[57]
• two ecological communities listed under the EPBC (although these are largely components of the high quality native vegetation already mentioned)
• GSM[58] habitat.

The identification of the option with the lower biodiversity impacts is not entirely straightforward, although the EES clearly concludes that "Option 1 is considered the preferred alignment from the biodiversity and habitat perspective". Overall, Option 1 has significantly less impact on native vegetation, including less impact on VHCS and HCS native vegetation, while Option 2 has less impact on GSM habitat.

The ecological consultants who undertook the flora and fauna investigations for VicRoads recommended that Option 1 should be selected, particularly due to the much lower impact on high quality native vegetation and habitat. DSE supported this view through their submission to the Inquiry. Both considered the extent of VHCS and HCS vegetation to be a more determining factor than the slight differences in impacts on GSM habitat or other matters of NES[59] for the two options.

Apart from the direct loss of native vegetation and fauna habitat, Option 1 provides the opportunity for superior ecological outcomes in terms of lower impacts on Langi Ghiran State Park, less potential for road kill of native animals due to reduced habitat exposure, and better habitat connectivity between the State Park and bushland south of the existing highway.

The Inquiry has carefully considered this matter and has also found that Option 1 is superior in terms of the overall biodiversity outcomes (even though impacts on matters of NES would be marginally higher).

It is my assessment that:

• WHP2 would result in the loss of a considerable amount of native vegetation and habitat, including significant quantities in the VHCS and HCS categories, affecting 10 EVCs, six of which are endangered.
• The EES demonstrates that the alignment options selection process and specific design measures have attempted to avoid and minimise the impact on native vegetation to the extent practicable in achieving a highway of AMP3[60] standard between Beaufort and Ararat, although further avoidance of native vegetation (consistent with the NVMF[61]) can be achieved through the detailed design stage (as outlined in the EES).
• The proposed clearance of VHCS native vegetation will be an unavoidable impact of the project. This is considered to be acceptable providing appropriate offsets are provided that meet the requirements of the NVMF and given there is some opportunity to minimise this during the detailed design stage.
• There would be significant impacts on two EPBC-listed communities (Natural Temperate Grassland of the Victorian Volcanic Plain and Grassy Eucalypt Woodland of the Victorian Volcanic Plain). These impacts would be considered acceptable only if offsets were provides that met the NVMF and the EPBC Act Environmental Offsets policy (October 2012).
• The impacts on the Spiny Rice-flower and the Dwarf Galaxia are not likely to be significant provided the environmental management commitments in Section 21.7.6 of the EES are fully implemented.
• WHP2 would have a significant impact on the Golden Sun Moth through habitat removal, despite attempts to minimise this impact through the options selection process. These impacts would be acceptable only if offsets are provided to satisfy both the NVMF and the EPBC Act Environmental Offsets policy (October 2012).
• Option 1 presented in the EES is superior in terms of overall biodiversity outcomes, particularly in reducing impacts on native vegetation of VHCS and HCS. It is noted however that Option 1 would have slightly higher impacts on matters of NES.

100 Again, the potential losses of large old trees was not a matter expressly referred to in the Minister's conclusions on the biodiversity impact of the project. The impact on vegetation of High and Very High conservation significance was a key consideration, as was the impact on Langi Ghiran State Park. This was reflected in the Minister's ultimate conclusion that Option 1 represented the most appropriate balance of environmental, economic and social outcomes:[62]

So the focus of determining which option should be implemented is the consideration of effects on biodiversity and habitat, largely native vegetation with VHCS or HCS which provides habitat for protected species. In doing so, this Assessment finds that Option 1 (the "alternative alignment" in the EES) would have a superior overall biodiversity outcome, due to clearly lower impacts on native vegetation (both total amounts and amounts of VHCS and HCS vegetation), as well as lower impacts on habitat areas adjacent to Langi Ghiran State Park. Option 1 would maintain better habitat connectivity between the State Park and large areas of bushland south of the existing highway in particular and result in less potential for road kill of native animals in this area of high biodiversity values. These ecological benefits in the areas adjacent and near the State Park, as well as the lower total amount of significant native vegetation to be cleared for Option 1, outweigh its marginally higher impact on Golden Sun Moth habitat and Grassy Eucalypt Woodland of the Victorian Volcanic Plain.

101 In May 2014, VicRoads realised that the EES had seriously underestimated the number of large old trees that would have to be removed in order to build Stage 2 along the Option 1 alignment. This error was disclosed to the public in a media release dated 13 November 2015, which read:

Tree discrepancy investigation complete

VicRoads has completed its investigation into a discrepancy about tree removal on the Western Highway and will work with the community to implement new practices and improve public consultation.

VicRoads Acting Regional Director, Nicki Kyriakou said the investigation had revealed that the methodology used to estimate the number of trees was not accurate for the Beaufort to Ararat section of the highway duplication project.

Ms Kyriakou said initial footprint plans for the Western Highway duplication form Beaufort to Ararat estimated that 221 'Large Old Trees' (LOT) would need to be removed to build the road. A further 249 scattered trees were included in the appendices of the report. Subsequent on-the-ground counting identified a total of 1645 Large Old Trees (LOTs) and Scattered Trees would need to be removed.

"We've confirmed that the figure of 1645 was the worst case scenario to allow for the road to be built to freeway standard however the actual number of trees required to be removed for the alignment is 885," she said.

102 VicRoads undertook a review of the large old trees error, which was the subject of an internal report dated March 2016 - referred to during the trial as the Large Old Trees Report. Much of the report was concerned with how the error had occurred, and how such an error could be avoided in future, none of which is relevant here. It also examined what the error meant for the assessment of options during the EES process:[63]

We have to accept that it is impossible to know whether the outcome of the EES would have been different if what we now know to be the correct number of LOTs had been included from the outset. What we can do however is examine the statements and documents tendered as part of the EES and draw assumptions from those as to whether the underestimation had an impact on the EES process.

103 After referring to the EES and the Minister's Assessment, the report continued:[64]

From this assessment it appears that the local significance of LOTs was not a priority consideration in selecting the preferred alignment. The primary focus was centred on State and Commonwealth threatened species and ecological communities, and vegetation assessed as Very High and High Conservation Significance. This is reflected in minutes from the EES Technical Reference Group (TRG), and the Department of Sustainability and Environment's (DSE, now part of DELWP) formal submission on the EES and Planning Scheme Amendments (tabled at the panel hearing). These submissions did not make any specific mention of LOTs but instead focussed on the overall amount of hectares and native vegetation, and the significant species and ecological communities potentially affected by each option. ...

It appears that the value of LOTs were only considered relevant in terms of confirming actual numbers prior to construction so that native vegetation offsets could be calculated appropriately ...

Given that the primary biodiversity focus appeared to be on matters other than LOTs, it is not unreasonable to speculate that even if the increased number of LOTs had been known, the options assessment would not have been greatly influenced and Option 1 would have likely remained as the favoured alignment.

104 The review also considered whether the underestimation of numbers of large old trees had affected the determination of the conservation significance of vegetation, and recalculated the habitat quality scores for all relevant habitat zones. This exercise yielded an increase in the proportion of vegetation of Very High conservation significance, and a corresponding decrease in the proportion of vegetation of High conservation significance, for both options. However, there was little change in the total areas of highly significant vegetation affected by each option, and it remained the case that Option 1 affected considerably less highly significant vegetation than did Option 2. On that basis, the Large Old Trees Report concluded that Option 1 would still have been the preferred alignment had the actual numbers of large old trees been known during the EES process.[65]

105 The conclusions expressed in the Large Old Trees Report are similar to the conclusions that I have reached after my own review of the EES, the Panel inquiry and report, and the Minister's Assessment. The number of large old trees likely to be affected by the Stage 2 works was one small factor in a complex and multidimensional assessment of the environmental effects of those works. The potential losses of large old trees was not a key factor in the Minister's assessment of the effects on biodiversity and habitat, and was not material to his overall preference for the Option 1 alignment. The large old trees error, while regrettable, did not have the significance for the Minister's Assessment that the plaintiffs contended it did.

106 The plaintiffs submitted that the large old trees error was a 'plain error on the face of the record' that invalidated the entire Assessment. While no attempt was made to identify the 'record',[66] I understood it to be the Minister's Assessment of May 2013. There are at least two reasons why that submission cannot be accepted. First, the error was not plain on the face of the Assessment, or even the Panel report, or the EES. It was not discovered until some time after the Assessment had been completed, and then not from an examination of the 'record,' but by counting the trees on the ground. Second, it was an error of fact, not an error of law. It is trite that there is no error of law in simply making a mistake of fact.[67]

107 A constructive failure to perform a statutory function can amount to a jurisdictional error, where the nature of the function has been misunderstood or its performance has so badly miscarried that it was not performed at all.[68] As the Court of Appeal explained recently in Chang v Neill,[69] a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker:[70]

Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.

108 In this case, the function that the Minister had to perform under the EE Act was to assess the environmental effects of the Stage 2 works. The Assessment is comprehensive, and there is nothing in it that suggests that the Minister misunderstood his function. The Minister did not fail to have regard to relevant material that was an essential feature of the valid exercise of his function. As discussed, the EE Act leaves it to the Minister to determine what an assessment should comprise, and what weight should be given to the matters identified as relevant to the assessment.[71] In any event, the Minister expressly referred to the estimated potential losses of large old trees in the Assessment. That those estimates later turned out to be wrong does not mean that the Minister constructively failed to perform his statutory function under the EE Act.

109 The plaintiffs submitted that, because the Assessment was an 'holistic and integrated assessment', the large old trees error infected the entire Assessment and 'the failure of such a significant strand of evidence invalidated the whole'.[72] They further submitted:[73]

Hence the legal soundness of the Minister's decisions rested on the accuracy of the information considered and then synthesised in the EES, the Inquiry Report, and thence the Minister's Assessment. It was not enough for the Minister to have been presented with evidence which he might have said supported his decisions. Given the importance of the issues considered and the nature of the exercise of making the impugned decisions the evidence had to be correct.

110 This was, as VicRoads submitted, a 'startling proposition'. I do not accept it, for two reasons. First, there is nothing in the EE Act that indicates that the Minister was obliged to do anything other than assess the environmental effects of the works on the basis of the material available to him at the time of his assessment. It is not a precondition to the performance of the assessment function that all of the material considered must be absolutely correct. The fact that one small part of the material later turned out to be wrong could not invalidate the entire Assessment. Second, as I have explained, the estimated potential losses of large old trees, while important, were not critical to the outcome in this case.

111 This does not mean that a factual error in an assessment made under the EE Act cannot be corrected. The purpose of a Ministerial assessment is to inform decision-makers of the likely environmental effects of a project. They are not bound to accept the assessment as correct, or the last word, and may take other information into account in making their decisions. As will be seen, that is exactly what the Minister did in relation to decisions made after the large old trees error came to light.

Degraded Treeless Vegetation, Golden Sun Moth habitat and Box Gum community errors

112 The alleged errors involving patches of land identified as Degraded Treeless Vegetation, and non-identification of Golden Sun Moth habitat and patches of Box Gum community were based on opinions that were expressed in reports produced in 2015 and 2016.[74] As discussed above, those reports are inadmissible, because they were not relevant to the validity of the Minister's Assessment at the time it was made.[75]

113 Further, for the reasons just discussed, making an assessment based on factual material that is later disputed or shown to be wrong does not amount to a constructive failure to assess the environmental effects of the relevant works.

114 The final error alleged by the plaintiffs was that the Minister based his assessment on the EES having complied with aspects of the Scoping Requirements, when in fact it did not. The plaintiffs alleged that the relevant Scoping Requirements were as follows:[76]

1. the main EES report should include an accurate description of the existing environment, clearly identifying the sources and accuracy of the information;
2. accurate details of the potential effects of the works on biodiversity including native vegetation;
3. address how vegetation removal has been avoided and minimised by the proposed works.

115 Compliance by VicRoads with the Scoping Requirements was simply not an essential feature of the performance of the Minister's statutory task. The Scoping Requirements had no statutory force. They were not guidelines laid down under s 10 of the EE Act. They were no more than a detailed description of what the Minister expected VicRoads to address in preparing the EES for the Stage 2 works. They did not affect the nature of the Minister's assessment function under the EE Act.

116 Further, the Scoping Requirements were not to the effect alleged. In particular, they required a 'general description' - not an 'accurate' description - of the existing environment,[77] and an 'assessment' - not 'accurate details' - of any potential effects of the works on biodiversity.[78] The Scoping Requirements set a high standard for the EES, but it was not a standard of perfection. They did not require the EES to be accurate in every particular.

117 In the alternative, the plaintiffs contended that the Minister had regard to irrelevant considerations - being the five errors alleged - and had failed to have regard to relevant considerations - being the true state of affairs.[79]

118 In relation to the large old trees error, the plaintiffs alleged that the Minister had regard to the irrelevant consideration that the maximum likely impact on large old trees was the loss of up to 221 trees, and failed to have regard to the relevant consideration of the potential loss of approximately 1,581 large old trees. Both of these grounds must fail.

119 The estimate of the number of large old trees that would have to be removed for the works was plainly a relevant consideration for the Minister in making the Assessment, in the sense that it was a matter that the EE Act permitted the Minister to consider. Its relevance was not altered by the fact that it later turned out to have been a significant underestimate.

120 As discussed, the EE Act does not mandate consideration of any particular feature of the environment. The Minister was not bound by the EE Act to have regard to an estimate of potential losses of large old trees that had not been made at the time of his assessment.

121 The alleged errors involving patches of land identified as Degraded Treeless Vegetation, and non-identification of Golden Sun Moth habitat and patches of Box Gum community, were not known at the time the Minister made the Assessment. It follows that they were not matters that the Minister could have considered, and in any event were not mandatory considerations for him.

122 As explained at [115]-[116] above, there was no substance to the complaint that the Minister should have had regard to alleged non-compliance with the Scoping Requirements.

123 These two grounds of jurisdictional error were not made out.

124 Another form of jurisdictional error that the plaintiffs alleged infected the Minister's Assessment was a failure to inquire into matters that were centrally relevant to the Minister's task and which were readily available had the Minister inquired.[80] These matters were errors in the estimate of the maximum likely impact on large old trees, the incorrect characterisation of patches of native vegetation and Golden Sun Moth habitat as 'Degraded Treeless Vegetation', and non-compliance with the Scoping Requirements.

125 A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can in some circumstances amount to a constructive failure to exercise jurisdiction.[81] I accept the submission of VicRoads that it is only in rare or exceptional circumstances that a failure to inquire will amount to jurisdictional error.[82] Those circumstances were not made out here.

126 The plaintiffs did not point to anything in the EES, the Panel's report, or the submissions and evidence before the Panel, that would have made it obvious to the Minister that he should make inquiries about any of the matters they alleged he overlooked.

127 In relation to the accuracy of the estimated losses of large old trees, I can find nothing in that material that should have alerted the Minister to the possibility that the estimates were wrong. Information about the actual numbers of trees was not critical to the Minister's Assessment, in particular his preference for Option 1. Nor was that information readily available, had the Minister asked for it. It did not come to light during the Panel's inquiry, and it appears that an accurate on-the-ground count of large old trees on the Option 1 alignment was not done until 2014.

128 Disputes about whether certain areas of land should have been identified as Degraded Treeless Vegetation did not arise until October 2015,[83] and there was no reason in May 2013 for the Minister to have queried how they were characterised in the EHP 2012 Report. There was nothing to put the Minister on notice that the Scoping Requirements had not been complied with; indeed, the plaintiffs did not establish any relevant non-compliance.

129 There was no jurisdictional error in the form of a failure to inquire.

130 The plaintiffs pleaded that the Minister's Assessment was legally unreasonable or irrational, and hence invalid, because the Minister concluded that the alignment options selection process and specific design measures had attempted to avoid and minimise the impact on native vegetation to the extent practicable, in circumstances where:[84]

(a) The Minister wrongly proceeded on the basis that, under Option 1, up to 221 large old trees would be lost (subject to a reduction in this number during detailed design);

(b) The Minister wrongly relied on evidence presented by VicRoads at the Panel hearing that the 'northern options' would have a greater impact on native vegetation of Very High conservation significance and High conservation significance than Option 1;

(c) The Minister wrongly relied upon evidence presented by VicRoads at the public hearing that vegetation losses for the 'northern options' would be greater than Option 1, and in particular he wrongly relied on the proposition the northern options had not allowed for required service roads.

(d) The Minister, having identified that the extent of native vegetation clearing and associated impact on biodiversity was a key consideration in selecting the final alignment of the road, wrongly considered that Option 1 would only involve the clearing of 100.7 hectares, equating to 36.91 hectares of native vegetation of Very High conservation significance and High conservation significance.

(e) The EES did not comply with the Scoping Requirements, as set out at [114] above.

131 The only one of these allegations that was the subject of submissions at trial was the large old trees error. The others can be set aside. Paragraphs (b), (c), and (d) relied on opinion evidence that I have ruled inadmissible, because it was irrelevant to the validity of the Minister's Assessment at the time it was made. It was not established that the EES did not comply with the Scoping Requirements, which in any event did not circumscribe the assessment function to be performed by the Minister under the EE Act.

132 A decision may involve jurisdictional error if it is manifestly unreasonable, irrational, illogical or lacks an evident intelligible basis.[85] One form of legal unreasonableness is a factual conclusion for which there was no evidence, where that conclusion was material to the outcome.[86] In order to examine whether a decision - or the performance of a statutory function - was unreasonable, it is necessary to identify the boundaries of the 'decisional freedom' which the statute gives to the decision-maker.[87] Within that area of decisional freedom, reasonable minds may differ as to the correct decision or outcome, and the decision-maker has a 'genuinely free discretion'.[88]

133 Critically here, reasonableness is to be judged on the basis of the material that was available to the decision-maker. In Minister for Immigration and Citizenship v SZMDS,[89] Crennan and Bell JJ explained that the correct approach is to ask whether it was open to the decision-maker to make the findings it did on the material before it. In that case, their Honours concluded:[90]

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was.

134 The EE Act gives the Minister broad freedom to assess the environmental effects of a project. It is up to the Minister what the assessment comprises, and what weight should be given to the various aspects of the environment that are assessed. There is ample room for reasonable minds to differ about conclusions within an assessment.

135 Here, there was plenty of material before the Minister that supported his conclusion that Option 1 was the superior alignment in terms of overall biodiversity outcomes. That was the conclusion of the Panel, after a public hearing in which MairiAnne Mackenzie participated, taking into account the evidence of the ecologist she had engaged. It was also the view of the Department of Sustainability and Environment, which had made its own submission to the Panel. The Minister's conclusion was based on a great deal more than the estimated losses of large old trees under the various alignment options he considered. The fact that those estimates were later found to be wrong does not render the Assessment made in May 2013 legally unreasonable.

136 Further, as I have explained, I am not satisfied that the large old trees error was material to the Minister's preference for Option 1.[91] Even if it had been a factual conclusion for which there was no evidence, it was not shown to have affected the outcome that the Assessment supported the Option 1 alignment.

137 The plaintiffs also challenge a series of more recent decisions that resulted in Amendment C37 to the Ararat Planning Scheme. To recapitulate, on 17 December 2017, the Minister made three decisions:

(a) a decision under s 20(4) of the Planning Act to exempt himself from the notice requirements of ss 17 to 19 in respect of proposed Amendment C37;

(b) a decision to adopt Amendment C37, under s 29 of the Planning Act; and

(c) a decision to approve the amendment, under s 35.

138 These decisions were the subject of a single brief to the Minister, submitted to his office by the Department of Environment, Land, Water and Planning (DELWP) on 13 December 2017. The 'core message' of that brief was:

Mr John Merritt, the Chief Executive of VicRoads, has requested that you prepare, adopt and approve Amendment C37 to the Ararat Planning Scheme, with exemption from notice using your powers under section 20(4) of the Planning and Environment Act 1987. The amendment is required to replace an expired incorporated document in the Ararat Planning Scheme with a new incorporated document to enable construction works to duplicate the Western Highway between Buangor and Ararat (Section 2B) to be completed.

The brief recommended two options to progress the amendment:

Option A: (Approval): Prepare Amendment C37 to the Ararat Planning Scheme for the construction of the duplication of the Western Highway between Ararat and Buangor under Section 8 of the Planning and Environment Act 1987 (the PE Act), exempt yourself from the requirements of section 17, 18 and 19 of the PE Act and the regulations for the amendment under section 20(4) of the PE Act for the reasons set out in the attached Reasons for Decision, and adopt and approve the amendment under sections 29 and 35 of the PE Act, and sign the attached letters to Mr John Merritt, Chief Executive, VicRoads and Cr Paul Hooper, Mayor, Ararat Rural City Council, advising of your decision.

Option B (Advisory committee): Agree to appoint an advisory committee to consider the merits of Amendment C37 to the Ararat Planning Scheme. (Note: if you approve this option Terms of Reference and an Instrument of Appointment for the Advisory Committee and letters advising VicRoads and Ararat Shire Council of your decision will be provided in a subsequent briefing).

139 On 17 December 2017, the Minister approved Option A and signed a number of documents, provided with the brief, to give effect to that decision.

Grounds for judicial review of Minister's approval of Amendment C37

140 The first issue to be resolved is whether the Minister's approval of Amendment C37 is amenable to judicial review on the ground of a failure to have regard to a relevant consideration; namely, significant effects which the amendment might have on the environment.[92] The Minister contended that it is not.

141 The Minister submitted that his decision to approve Amendment C37 was a decision to make delegated legislation, and that it is well established that a decision to make delegated legislation is not amenable to judicial review on grounds such as failure to take account of relevant considerations or irrationality. The Minister pleaded this as a complete answer to this aspect of the plaintiffs' case.[93]

142 It was not controversial that a planning scheme under the Planning Act, and any amendment to that planning scheme, is a form of delegated legislation.[94] The plaintiffs' response to the Minister's submission was that it was not the decision to approve the amendment that was delegated legislation, but its gazettal. This contention was not supported by authority or reference to any provision of the Planning Act. In my view, it confused the amendment of a planning scheme with the mechanism for giving notice of the amendment.

143 Under the Planning Act, it is the Minister's approval of an amendment that amends the planning scheme.[95] Notice of the amendment must be given by a publication in the Government Gazette, after which the amendment comes into effect.[96] Similarly, either House of Parliament may revoke an amendment by resolution.[97] It is the resolution that revokes the amendment, not the notice of the revocation that the Minister must publish in the Gazette.[98] In both instances, the Planning Act distinguishes between the decision that effects the change to the planning scheme, and the requirement to give notice of the decision.

144 The Minister's approval of Amendment C37 therefore involved the making of delegated legislation, as distinct from an administrative decision. Delegated legislation may be declared to be invalid on judicial review, for example on the ground that it is beyond the power conferred by the enabling statute,[99] or because an essential statutory precondition has not been met.[100]

145 There is, however, a very real question whether the validity of delegated legislation can be impugned on all of the grounds available on judicial review of an administrative decision. In Vanstone v Clark,[101] Weinberg J identified various grounds on which delegated legislation may be invalid - where it is beyond the power conferred by or inconsistent with the empowering Act, where it has been made for an impermissible purpose, or where it is not reasonably proportionate to the empowering provision:[102]

A number of these grounds of review plainly overlap. Some of them also provide a basis for reviewing administrative decisions. To that extent, cases concerned with broader issues of judicial review may be of some assistance. However, the full range of grounds of review of administrative decisions is usually not available to challenge delegated legislation. For example, such legislation cannot be impugned solely on the basis that the body responsible for its promulgation has taken into account irrelevant considerations.

146 In Love v State of Victoria,[103] Cavanough J doubted whether the 'considerations' grounds of judicial review were available for attack on a planning scheme amendment, if it were properly characterised as legislative in nature. The point was not taken, and hence not decided, in that case.

147 Although the point was taken by the Minister here, it is not determinative and there is no need to decide it. That is because the Minister's adoption of Amendment C37 is also challenged by the plaintiffs. The adoption of an amendment to a planning scheme by the relevant planning authority, under s 29 of the Planning Act, is a step that must take place before the amendment can be approved by the Minister, under s 35. The Minister appeared to accept that his adoption of the amendment, as distinct from its approval, could be challenged on traditional judicial review grounds.[104] If the adoption had been invalid, there would have been nothing for the Minister to approve under s 35. However, as I explain below, the plaintiffs have not established that the Minister's adoption of Amendment C37 was invalid for failure to take into account significant environmental effects.[105]

Did the Minister rely upon the Minister's Assessment?

148 The next issue is whether, as a matter of fact, the Minister relied on the Assessment of May 2013 in making the Exemption Decision and in the Adoption and Approval of Amendment C37. The plaintiffs contend that he did and that these decisions were invalid because the Assessment itself was invalid. This submission cannot succeed because, as I have found, the EE Act did not oblige the Minister to consider the Assessment when making decisions under the Planning Act,[106] and the plaintiffs have not established that the Assessment was invalid.[107]

149 In addition, it is plain that the Minister did not base the decisions that he made in December 2017 on the Assessment made by the former Minister in May 2013. To the contrary, the Minister was aware that some of the facts that informed the Minister's Assessment - in particular the estimated potential losses of large old trees - were wrong or in dispute.

150 The Minister relied on an affidavit of David Campbell Kirkland dated 21 February 2019, which identified and exhibited the material that was before the Minister when he made the decisions in December 2017. This material included a detailed briefing note, an officer amendment report for Amendment C37, and draft reasons for the Exemption Decision. Correspondence from VicRoads, the Ararat Rural City Council, and Aboriginal Victoria was attached to the brief, together with a number of other documents.[108] The material provided to the Minister did not include a copy of the Minister's Assessment from May 2013.

151 The plaintiffs did not cross-examine Mr Kirkland or question the accuracy of his evidence. There was no suggestion that the Minister considered material other than the documents enumerated in and exhibited to Mr Kirkland's affidavit.

152 The Assessment was not directly considered by the Minister when he made the decisions in December 2017. It was, however, referred to in the material that was provided to him. Having read that material myself, I am confident that the Minister did not rely on the Assessment, but on more up-to-date information about the environmental effects of the Section 2B works. I set out below extracts from that material that make it plain beyond argument that the Minister's decisions of December 2017 were not made in reliance on the Assessment.

153 The officer amendment report was prepared by officers of DELWP, and provided a detailed account of the background to the amendment. The EES process undertaken in 2012 and 2013 was noted at several points. Part 10 of the report provided the officers' assessment of the merits of the proposed amendment:

There is broad support from the community, Ararat Rural City Council, DELWP Forest Fire and Regions, and the Glenelg Hopkins CMA for the duplication of the Western Highway. There are considerable benefits to road safety, travel times, tourism, economic development and access to services that completion of the project will bring.

There are however concerns regarding the particular alignment of the duplication chosen as some members of the community believe a route closer to the current Western Highway (the 'Northern Option') would have fewer environmental impacts, cost less and be less visually intrusive on the landscape.

This amendment does not reconsider the merits or otherwise of various route options, as the options assessment was undertaken as part of the EES process in 2012 and 2013. The route chosen was based on the best information available at the time and Amendment C27 to the Ararat Planning Scheme applied the Public Acquisition Overlay to the land required for the construction of Section 2B, based on the EES assessment weighting (including impacts to native vegetation and habitat). This amendment seeks to provide planning permission, through an incorporated document, so that works on Section 2B can recommence and the section be completed.

The claims of individuals and community members about the alignment have not been tested or explored here. It would require another EES with an adjusted terms of reference to assess these claims. VicRoads maintain that should another EES process be undertaken with the same terms of reference, the same alignment would be chosen.

154 The report then moved to a consideration of the environmental, social and economic effects of the amendment, as required by s 12(2)(b) of the Planning Act. In relation to the environmental effects, the report provided the following information:

The Incorporated Document requires the preparation and approval of an Environmental Management Framework or equivalent document that will include key construction methodologies, an overall framework for site management and specific work measures in order to reduce and manage environmental effects during the construction of the project.

This project has previously been the subject of an Environmental Effect[s] Statement (EES), which was assessed in an Assessment Report (Assessment) in May 2013. Extensive investigation was carried out in relation to the environmental effects associated with the project as part of the EES. This included a detailed assessment of the ecological impact of the project.

This ecological assessment has been recently updated by reference to current conditions in order to accurately describe the impact the project will have. VicRoads contracted Ecology & Heritage Partners to determine the extent of impacts on native vegetation and species habitat ('Ecological Assessment: Western Highway Project Section 2B, Victoria, May 2017'). VicRoads provided Ecology & Heritage Partners with a refined construction footprint (refinements discussed below) to assess and quantify impacts to native vegetation.

[DELWP] Regional Planning sought assistance from colleagues in DELWP Land Planning and Approvals to review the report and ensure the methodology followed by Ecology & Heritage Partners is consistent with the requirements of native vegetation policy. In addition, this report used the methodology required by the Framework that is previous DELWP native vegetation policy in the Victoria Planning Provisions, and has since been replaced by the 'Biodiversity Assessment Guidelines, September 2013'. DELWP Biodiversity Policy allowed VicRoads to use the Framework methodology on the basis that VicRoads has sourced over 90 per cent of offsets for Stage 2B. Continuing to offset using this methodology would mean offsets would not need to be recalculated nor re-traded to source compliant offsets.

VicRoads sought independent peer review of the Ecology & Heritage Partners assessment through Brett Lane and Associates Pty Ltd Ecological Heritage Research & Management (report number 17130, dated 3 August 2017). Brett Lane and Associates were asked to consider the following:

1. Have all the correct regulatory controls governing impacts of the project been considered and addressed?
2. Have adequate investigations, including field surveys been undertaken to document the biodiversity of the area impacted by the project?
3. Have the survey results been reported comprehensively and accurately?
4. Have the impacts of the project on biodiversity been comprehensively covered in the report?
5. Have the implications for VicRoads and the decision-maker of these impacts under the applicable regulations been fully covered and documented?

Brett Lane & Associates also reviewed ecological information provided by a submitter to the initial EES process, as well as previous and current assessments by Ecology & Heritage Partners. Brett Lane & Associates concluded (page 17/20):

I have read the second report (2017b) responding to key ecological issues raised by a submitter. Having regard to the findings during my site assessments in 2017 and the foregoing review, I conclude that the response provided reflects accurately the conditions on the site and I concur with its conclusions in relation to the matters it considers [status of ecological communities and threatened species habitats]

The internal and external reviews of the Ecology & Heritage Partners report provide [a] suitable basis to take the view that VicRoads have made an accurate assessment of the environmental impacts of the project for the purposes of the amendment.

In the intervening time since the expiry of the previous incorporated document, VicRoads has progressed with conceptual design of the duplication, and has been able to demonstrate how the principles of avoid and minimise required in the proposed incorporated document will be met. Some of the changes VicRoads report to have made include the following:

• redesigned various intersections to minimise impact on Golden Sun Moth (GSM) habitat and large old trees (LOTs) specifically, eg: Hillside Road (West) intersection which saved 14 LOT[s];
• installed over 500 nest boxes for native birdlife (not a requirement);
• made road pavement more shallow where possible to avoid impact on tree roots;
• steepened batters where possible, from 6:1 to 2:1 - avoided approximately 1200 trees;
• narrowed median to minimum safely possible (6m) in areas of high environmental sensitivity - retained 250 trees and earthwork required;
• widened centre median to up to 33m to keep areas of high environmental sensitivity in centre median where possible - retaining over 5,000 trees and 100,000m2 of EVC;
• swale drains have been reshaped where possible to minimise area of impact;
• Wire Rope Safety Barrier will be installed for the length of 2B, allowing vegetation and trees to be retaining closer to the road without compromising safety;
• GSM habitat revegetation project;
• redesign of area between Dobie and Ararat - avoided 2.46Ha of vegetation and 27 LOTs;
• implementing innovative "ecological restoration" in many parts of 2B, restoring the landscape to pre-1788 condition; and
• contributing and funding dendrochronology research by University of Melbourne to help identify age of River Red Gums in Western Vic.

In early 2017 claims were made by some members of the community that Large Old Trees within the alignment of the duplication to be removed were of indigenous cultural significance as birthing trees. VicRoads engaged with the Registered Aboriginal Party and Aboriginal Victoria to further investigate and resolve this matter. Aboriginal Victoria wrote to VicRoads in November 2017 confirming that VicRoads could proceed to remove these trees in accordance with the previously approved Cultural Heritage Management Plan.

155 The briefing note provided to the Minister also noted the EES process completed in 2013. In relation to native vegetation, the briefing note advised:

VicRoads has assessed and quantified the native vegetation removal required for the project. The internal and external reviews of this assessment provide a suitable basis for you to also form the view that an accurate assessment of the impacts of the project on native vegetation has been made, before deciding to prepare the amendment.

1. The assessment was undertaken by the same ecologists who initially assessed the alignment for the route selection and EES process.
2. VicRoads sought independent peer review of this report. The peer review did not raise any issues with the methodology or results of the assessment.

1. Given there have been previous errors (discussed in point 9 below) in native vegetation accounting for this section of the duplication, DELWP Planning sought internal review of the assessment, which concluded that the assessment was prepared using appropriate methodology in a thorough and sound manner, and that it adequately addressed matters of legislation and policy relating to native vegetation and threatened species.

1. Conditions within the incorporated document and the existing Commonwealth approval under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) are designed to ensure matters of national environmental significance and native vegetation are managed appropriately.
2. Native vegetation removal is proposed to be managed in accordance with Victoria's Native Vegetation Management: A Framework for Action, 2002 (the framework). Although this policy has been superseded by the Permitted Clearing of Native Vegetation: Biodiversity Assessment Guidelines, 2013 (the guidelines), 90 per cent of the offsets for this project have already been secured under the framework. DELWP's Biodiversity Policy Division has no objections to this approach, noting that the transitional arrangements between the framework and the guidelines provide some flexibility to applicants who have already taken steps to meet the earlier native vegetation policy.
3. When making a decision on the amendment, you can, as required, have regard to the current Victoria Planning Provisions, which reference the guidelines, but decide to maintain the requirement to manage native vegetation removal in accordance with the framework in the incorporated document for the project.

156 There followed a reference to this proceeding, and the issues raised by the plaintiffs about the Minister's Assessment:

The previous Minister for Planning's decision to apply the PAO and grant planning approval for the duplication of Section 2 is being challenged in the Supreme Court (Mackenzie v Roads Corporation and Minister for Planning), together with the legality of the Minister's Assessment issued under the EE Act. The Supreme Court matter has been deferred pending the decision on Amendment C37.

1. Section 2B traverses land owned and occupied by Ms Mairi Anne Mackenzie. Ms Mackenzie claims that VicRoads should be considering an alternative alignment adjacent to the current Western Highway (her proposed 'Northern Option') and sees the alignment currently chosen as more expensive, more damaging to the environment and more visually intrusive to the landscape.
2. Ms Mackenzie has had various reports and expert advice commissioned to assess her preferred Northern Option against the current alignment (Option 1 in the EES process). It is difficult to assess the claimed benefits of the Northern Option for a number of reasons, including that it proposes an alternative carriageway width (16-18 metres, as opposed to VicRoads 25-32 metres), a different construction standard, and ultimately a lower speed limit.

1. While the inquiry and advisory committee appointed to consider the EES considered Ms Mackenzie's submission on the Northern Option, the route proposed by Ms Mackenzie was not assessed in detail within the EES process. It was eliminated as an option by VicRoads before detailed studies were undertaken.

1. Ms Mackenzie has indicated (through her counsel) that she would accept the recommendations of an independent panel that considered the alternative alignments, provided an environmental expert was a member of the panel.
2. VicRoads' request to you to prepare, adopt and approve Amendment C37 to the Ararat Planning Scheme does not ask you to make any decision on the alignment of Section 2B. The alignment is already covered by the PAO.

157 The briefing note mentioned that, since the completion of the EES in 2013, errors had been identified in the native vegetation accounting relied upon by VicRoads in forming its preferred alignment option. There was express reference to the large old trees error:

The number of large old trees initially reported to be required to [be] removed was 221. VicRoads revised this to 1,350 large old trees after the error was brought to its attention.

158 It then addressed the claims made by the plaintiffs in this proceeding that the Minister's Assessment under the EE Act was invalid because of these errors, and hence the subsequent adoption and approval of planning scheme amendments informed by the Assessment were also invalid. It conveyed VicRoads' position that the original EES was sufficient to determine the most appropriate alignment, and that another EES would result in the same outcome:

1. While the errors identified in the EES have been acknowledged by VicRoads, it maintains that the EES continues to have merit in the assessment of the alignment chosen, and that the project has and continues to be guided by the native vegetation framework principles of avoid, minimise and offset.
2. Since the EES process, VicRoads commissioned further work on the effects of the project on the environment, particularly to address concerns raised by the community.

1. VicRoads is satisfied it now has an accurate record of the impacts the project will have on the environment, and the steps required to reduce, minimise and offset those impacts.

159 A section towards the end of the briefing note provided some additional context for the decision. In relation to the environmental effects of the project, the following context was given:

1. The environmental effects of the preferred and alternative alignments for the duplication project were considered through an EES process.

1. The EES canvassed various route alignments, and two potential alignments between Beaufort and Ararat were selected. Following public exhibition, an independent advisory committee and inquiry considered the two options, including through a public hearing process, and recommended that VicRoads' alignment Option 1 be adopted and that the proposed Amendments C27 to the Ararat Planning Scheme and C37 to the Pyrenees Planning Scheme be approved. 2. The Minister's Assessment under the EE Act recommended that Option 1 be approved.

1. The former Minister for Planning approved Amendments C27 to the Ararat Planning Scheme and C37 to the Pyrenees Planning Scheme. These amendments applied the PAO to land required for the project. They also introduced an incorporated document to exempt the project works from requiring planning permits, which included conditions and requirements for a range of documents to be submitted for approval to address recommendations of the Minister's Assessment under the EE Act.

1. The PAO has been applied to the land required for Section 2B. However, the incorporated document expired between January and June 2015.
2. The 2012 EES considered the impacts on native vegetation within the bounds of the PAO (a corridor approximately 100 metres wide), although each carriageway is 25-32 metres wide. The most up-to-date design of the project has given a more detailed account of the project's impact on the environment (see Attachment 7).
   1. In response to community consultation and further environmental reports, detailed design and mitigation measures by VicRoads has resulted in:
      • steepened batters to avoid the removal of 1 200 trees
      • narrowing the central median to 6 metres in some areas to avoid 250 trees
      • widening the central median to 33 metres in some areas to retain 5 000 trees and 100 000 square metres of native vegetation
      • designing the highway with wire rope safety barriers along the entire length of Section 2B, allowing vegetation and trees to be retained close to the edge of the road without compromising safety
   2. Through the EES, the project was designed on the principles to avoid native vegetation, minimise impacts and then offset any impacts that do occur. These principles still guide the project and work continues to be done to avoid and minimise impacts on native vegetation where possible.

160 Attachment 7 to the brief was a table, comparing the native vegetation impacts considered through the EES, compare to the latest reports based on a detailed design:

Habitat Hectares (total Ha multiplied by a quality grading of the habitat)

Large Old Trees and Very Large Old Trees to be removed in Section 2

Large Old Trees and Very Large Old Trees to be removed in Section 2B

The EES did not break down the project into sections 2A and 2B, so the data for these two individual sections is not known.

A note below the table explained, in relation to the figures with an asterisk:

* Even though detailed designs have minimised impacts on native vegetation, there was an error in the 2012 EES pertaining to the number of Large Old Trees and Very Large Old Trees to be impacted. This error has been investigated and admitted to by VicRoads. An independent ecological report from 2014 puts the figure of Large Old Trees and Very Large Old Trees within Section 2 at 1,581, and within Section 2B as 408.

161 In addition, the draft reasons for the Exemption Decision - which were signed and adopted by the Minister - noted the prior EES process, and the issues that had arisen with it:

1. The EES was based on a Biodiversity and Habitat Impact Assessment Report prepared by Ecology and Heritage Partners (which formed Technical Appendix H to the EES). The advice, with respect to impact on Large Old Trees, was that 221 Large Old Trees were required to be removed for the alignment ultimately recommended.
2. In May 2014, it became apparent that the EES substantially understated the number of Large Old Trees likely to be impacted by the works, including the Section 2B works. VicRoads has identified that the error was caused by the methodology employed by its consultant (Ecology & Heritage Partners) that extrapolated Large Old Trees with similar habitat zones to estimate the total number, rather than survey each of the habitat zones.
3. VicRoads revised the expected impact to 1350 Large Old Trees, based on the same project footprint, after the error was brought to its attention by members of the community and environmental groups.
4. The incorrect advice with respect to impact on Large Old Trees was inadvertently adopted and replicated in the Inquiry Report and the Minister's Assessment (the error not being known at the time). As a result:

22.1 The EES process - including the Inquiry Panel report and the Minister's Assessment - cannot be wholly relied upon as an accurate and up to date assessment of the environmental impact of Section 2B works with respect to Large Old Trees.

22.2 The balance of the EES, and the resulting Inquiry Report and Minister's Assessment, remain well founded (acknowledging that broader recommendations were likely affected by the error as to Large Old Trees).

1. VicRoads has provided an updated assessment of social, environmental and economic matters to reflect current conditions and the most up-to-date information available. The updated material includes a new assessment of impacts on native vegetation, including Large Old Trees, that is based on sounder methodology.
2. The Incorporated Document requires VicRoads to further minimise native vegetation removal within the existing Public Acquisition Overlay. Since the initial approval, VicRoads has progressed concept designs for the project and through this process has been able to demonstrate a reduction in impact e.g. through the use of wire rope barriers that allow vegetation to be retained closer to the Highway. These measures will be captured in the submission of a native vegetation management plan required by the incorporated document.

162 As a result, the plaintiffs' contentions that the Exemption Decision and the Adoption and Approval were invalid because they were made in reliance on an invalid Minister's Assessment fail in two respects. First, the Minister's Assessment was valid, although it contained errors in relation to, at least, the likely impact of Stage 2 on large old trees. Second, while the Minister was referred to the Minister's Assessment, he clearly did not rely on the error in it when making the Exemption Decision or in adopting and approving Amendment C37. The Minister was aware of the error and of VicRoads' assessment that the error was not material to the selection of the Option 1 alignment.

Was the Exemption Decision legally unreasonable?

163 The Exemption Decision was made under s 20(4) of the Planning Act, which provides:

The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

164 Sections 17 to 19 of the Planning Act require a planning authority to exhibit and give notice of any amendment it has prepared to a planning scheme. In particular, s 19(1)(b) requires the planning authority to give notice to the owners and occupiers of land that 'it believes may be materially affected by the amendment'. Where notice of an amendment is given under s 19, any person may make a submission about the amendment to the planning authority.[109] The planning authority is obliged to consider all submissions made by the date set out in the notice.[110] In this case, that would have been achieved by the Minister referring the submissions to a panel appointed under Part 8 of the Planning Act, for its consideration, hearing, and report.[111]

Minister's reasons for the Exemption Decision

165 The Minister gave written reasons for the Exemption Decision. The reasons set out at some length the context in which Amendment C37 had been prepared, the prior EES process and the issues that had arisen with it, and further community consultation by VicRoads. After describing the expected benefits of completing the construction of Section 2B, the Minister addressed the benefits of the exemption and its effects on third parties:

1. The main benefit of the exemption is that it will enable a prompt decision to be made on the adoption and approval of the amendment. Following the usual process may mean that Stage 2B of the project is delayed by a further 12-18 months.
2. Exempting the amendment from the requirements of sections 17 to 19 of the Act and the regulations will mean that the significant benefits of the projects will be able to be delivered sooner, and the significant safety and economic consequences of further delay will be avoided, including:

37.1 Safety benefits: an estimated 60 per cent reduction in people involved in crashes (potentially avoiding an estimated 4 people involved in accidents over an average 18 month period); and

37.2 Economic benefits: an increase in highway capacity and speed limits, and the minimisation of travel delays, will assist the movement of freight and have positive economic consequences.

1. An exemption from the usual notice requirements will assist in the realisation of benefits associated with the works already completed for Sections 1 and 2A, and also facilitate further works necessary to complete the Project within a reasonable period.

1. The main effect of the exemption is that third parties will not receive notice of the Amendment and will not have the opportunity to make a submission or be heard by an Independent panel in relation to the Amendment.
2. The new Incorporated Document will apply to VicRoads land, and does not directly affect private land. VicRoads has already acquired the Section 2B land (and the PAO was unaffected by the expiry of the Incorporated Document). Development and use of that land will still have effects on adjacent landowners.
3. The effect on third parties of not having that opportunity is mitigated to some extent by the earlier EES process, noting:

41.1 All affected persons at that time had an opportunity to make submissions, which were considered by the Inquiry Panel (being also an Advisory Committee under the Act).

41.2 The EES process was some years ago, and proceeded on the basis of inaccurate information about the effect on Large Old Trees, so is not an adequate replacement for the planning process for this Amendment.

41.3 However, the error in the earlier EES is not the reason why this Amendment is required (being the expiry of the 2013 Incorporated Document). If not for that expiry, the works would have been able to proceed without a further planning process.

1. Community consultation since then has provided some opportunity for newly affected parties and new views to be expressed to VicRoads. However, VicRoads' informal consultation did not concern the Amendment directly, is not equivalent to a panel process, and has not resulted in a report to me about community submissions on planning matters.
2. Some people affected by the Amendment have requested the usual process be followed. Certain persons seek an opportunity to make further submissions about route selection. Even if the usual process was followed under the Act, submissions are properly about the prepared Amendment. The process is concerned (broadly described) with whether or not to authorise the use and development the land to which the Incorporated Document will apply, and on what terms (not with VicRoads' route selection or preferred road network solution per se).

1. If the Amendment followed the usual planning processes, in considering whether to adopt and approve the amendment, I would have the benefit of third party submissions and a Panel report.
2. Given the circumstances, particularly the passage of time, the error with the EES process, the expiry of the Incorporated Document (and the resulting possibility that the scheme may have inadvertently been breached), I understand that the exemption will be contrary to the wishes from at least some parts of the affected community to have a further say in the planning process.

166 The Minister then said that he had decided to exercise his power under s 20(4) to exempt himself from all of the requirements of ss 17, 18, and 19 and the regulations in respect of Amendment C37:

1. I have decided to exercise the power under s 20(4), in the following manner:

47.1 In considering whether the interests of Victoria or part of Victoria makes the exemption appropriate, I have weighed all relevant matters of which I am aware.

47.2 I have considered whether the interests of Victoria or a part of Victoria makes the exemption appropriate (not the Amendment, nor the Project, although the desirability of both are relevant to my decision).

47.3 I have considered what is appropriate in the interests of Victoria or part of Victoria, for the purposes of s 20(4), in the context of and by reference to the purpose of the Act, the objectives of planning, and other provisions of the Act.

1. The exercise of my power under s 20(4) authorises departure from the usual planning processes, which must ordinarily be followed, and which I do not depart from lightly.
2. I nonetheless consider the interests of Victoria, or the Western part of Victoria, make such an exemption appropriate in all of the circumstances, because:

49.1 The earlier EES process, although relying in part on inaccurate information about Large Old Trees, provided an opportunity for members of the public to make submissions about all other matters in a process similar to that which would occur in the usual planning process.

49.2 There has been further, albeit informal, consultation by VicRoads with affected and concerned persons. While some people are not satisfied with that opportunity, other parts of the community, the Ararat City Council and other bodies support the Project and timely approval of the Amendment.

49.3 The need for a further planning scheme amendment arises by reason of an administrative oversight by VicRoads. But for that administrative oversight, it is likely that VicRoads could have completed the project under the 2013 Incorporated Document (without further process).

49.4 There is greater certainty about the impact of the works on native vegetation (including Large Old Trees), and a significant reduction in impact on such matters, compared to the 2013 Incorporated Document.

49.5 As a result of the preceding matters, and of actions already lawfully taken by VicRoads, the prospects that following the usual process would result in material changes to the Amendment are reasonably low.

49.6 The project is a State significant project, is supported by Commonwealth, State and local governments, is in the public interest, and will result in significant public benefits when delivered. The project is increasingly time critical.

49.7 By reference to such benefits, and the need for timely delivery, there would be significant delay costs and consequences in following the usual planning process.

49.8 I have sufficient information, without following the usual process, to enable me to consider whether:

(a) The prepared planning scheme amendment facilitates the delivery of the project works in an appropriate way by reference to the Act, state and local planning policy and other planning provisions.

(b) The Incorporated Document is appropriately conditioned, including to manage and offset the removal of native vegetation (including particularly directed to the issue with Large Old Trees).

49.9 While there remains public interest in, and potentially some practical benefits of, following the usual process of notice under the Act in this case, I consider that to be sufficiently outweighed by the advantages of an expedited amendment.

I accordingly consider that the interests of Victoria generally, and the Western part of Victoria in particular - in enabling this important project to proceed in a timely and expeditious manner, and avoiding delay consequences, by exempting the amendment from ss 17, 18 and 19 of the Act and from the regulations - make this exemption appropriate.

167 The plaintiffs contended that the Exemption Decision made by the Minister in December 2017 was invalid because there was no rational basis for the Minister to consider that exempting himself from the requirements of ss 17 to 19 was warranted in the circumstances, or in the interests of Victoria.[112] They particularised this contention as follows:[113]

There was no information before the Minister when making the Minister's Second 20(4) Exemption that the time to commence and/or undertake the Stage 2B Works would be delayed by compliance with the requirements of ss 17 to 19 of the PE Act.

There was, they submitted, no evidence to support the Minister's conclusion that following the usual process would delay the project by a further 12 to 18 months.

168 The plaintiffs relied on the Court of Appeal's decision in East Melbourne Group Inc v Minister for Planning,[114] in which a decision under s 20(4) was held to be legally unreasonable. The majority recognised that urgency was a 'potent consideration' and could provide 'an obvious and discrete justification for the exercise of the s 20(4) discretion'.[115] However, the single publicly stated reason for the Minister's decision to exempt the amendment from the notification process was 'wholly implausible' and hence was incapable of founding a valid exercise of the exemption discretion.[116]

169 The plaintiffs submitted that this case was similar to East Melbourne Group. They argued that the claimed urgency was 'even more spurious' in this case:[117]

The Minister, after acknowledging the errors in the EES and the Ministerial Assessment, irrationally and unreasonably seeks to rely on supposed (and unsubstantiated) delays in following the "proper basis" as the reason for seeking to exempt himself from the usual process.

They characterised this as a 'bootstraps' justification for utilising the exemption power.

170 This submission strayed from the plaintiffs' pleaded case, and was not easy to follow. I understood the submission to be that it was unreasonable for the Minister to take into account the delay that would result from complying with the requirements of ss 17 to 19, when VicRoads had known of errors in the EES process since 2014 or 2015, and could have commenced a new public consultation process at an earlier time.

171 The defendants noted that the plaintiffs' particulars confined the alleged unreasonableness of the Exemption Decision to the contention that there was no information before the Minister that enabled him to conclude that compliance with ss 17 to 19 would further delay completion of the project. As to that contention, they referred me to material provided by VicRoads to the Minister that supported his conclusion. I refer to that material below.

172 Attachment 3 to the brief provided to the Minister by DELWP was a letter from VicRoads dated 8 November 2017, providing further information in support of its request that the Minister approve Amendment C37. The letter included a detailed submission about why an exemption was appropriate in the interests of Victoria. The first issue addressed was delay to the realisation of safety benefits to the State and the region:

1. The works that will be permitted by the Amendment will result in a safer road, eliminating and/or significantly reducing possible conflict between directional opposing traffic while providing for greater overtaking opportunity, resulting in a reduction in the potential for accidents. Compliance with the usual notice requirements of the Act will result in the delay of the delivery of these road safety benefits to the State and the region.
2. The Western Highway is the busiest undivided National Highway in Australia and the Western Highway is the second busiest interstate road freight corridor in Australia. By way of context, 43 people have been involved in casualty crashes along the 12.5km section to be upgraded as part of the Project in the last 10 years. Ten of those were serious injury crashes. As recently as May 2017, a truck rolled on this section before a second vehicle crashed into the truck requiring the highway to be closed.
3. Based on the enclosed briefing paper (Annexure A) outlining timeframe options, if the Minister for Planning does not exercise his discretion under section 20(4) of the Act in respect of the Amendments, it is estimated that the completion of the Project will be delayed by up to 18-36 months. This estimate does not take account of any additional delays associated with any legal challenge brought by any person, including a challenge pursuant to section 39 of the Act which may be brought by a person who is substantially or materially affected by a failure of, among other things, a panel convened pursuant to section 23(1)(b) of the Act or any attempt by a person to seek judicial intervention, preventing the Minister for Planning from making a decision following the receipt of advice from an advisory committee. Any such steps (irrespective of their merits) have the potential to cause delay.
4. VicRoads has sought the advice of a road safety expert to provide an indication of the consequences that would arise as a result of such a delay. The engineer has reviewed vehicle crash data available for the Western Highway and has considered the impact that duplication of other sections of the Western Highway (already completed by VicRoads in 2015 and 2016) has had on road safety. The results of that analysis are attached to this letter at Annexure B. This analysis reveals, in VicRoads' opinion, a substantial reduction of approximately 60% in the number of people involved in crashes after the completion of the duplication of other sections of the Western Highway. This analysis is consistent with the conclusions expressed in the Environmental Effects Statement prepared in connection with the Project in 2012 that the design features of the construction were 'expected to eliminate a high proportion of existing road safety risks and provide for a higher road safety standard than currently exists' (see section 9.6.3 of the Environmental Effects Statement).
5. Using this analysis as a guide, it has been estimated that a delay to the completion of the Project:

(a) by 18 months will result in an additional 4 people being involved in a motor vehicle crash; and

(b) by 36 months will result in an additional 8 people being involved in a motor vehicle crash.

1. Although these figures are only a guide, VicRoads considers that they are a reasonable indication of the extent of the impact that would be occasioned by a delay to the Project. In the event that delays to the completion of works were shorter, the impacts of those delays would be reduced but not obviated. In addition, any estimates of delay above do not take account of any challenge to the advisory board process, which even if not successful, have the potential to cause further delay.
2. In addition, the prompt realisation of safety benefits is supported by the Transport Accident Commission. Attached to this letter at Annexure C is a letter from the Transport Accident Commission, confirming its support.

173 The letter then outlined why VicRoads considered that prompt completion of the project was in the interests of Victoria, and identified community support for undertaking the Section 2B works as soon as possible. It went on to set out the reasons why, in VicRoads' submission, compliance with the usual notice provisions was not warranted. There had been extensive consultation in respect of the works that would be permitted by the amendment during the EES process in 2012 and 2013, including the Panel hearing and report. On the question of whether further consultation was warranted in light of the large old trees error, VicRoads submitted:

1. VicRoads acknowledges that the Environment Effects Statement substantially understated the number of large old trees (LOTs) likely to be impacted by the works. This understatement was discovered in May 2014 following the provision of further detailed information about the number of LOTs impacted by the works. Upon receipt of this information, VicRoads:

(a) publicly acknowledged the understatement and issued a media release apologising for the discrepancy;

(b) VicRoads Chief Executive John Merritt committed that in relation to the sections beyond the Buangor Bypass and up to Ararat, VicRoads would not proceed with any tree clearing works until the issue of the tree discrepancy was understood, made public and fully considered; and

(c) This involved: the issue of the media release; the engagement of VicRoads Senior Environmental and Heritage Advisor, Matt Mooney, to respond to issues raised by members of the community as a result of the discrepancy and to produce a report called the Tree Discrepancy Report; the publication of the Tree Discrepancy Report on the VicRoads website; a presentation by Mr Mooney on the discrepancy, to VicRoads personnel to ensure learnings were distributed through the organisation and has taken steps as part of the design process to reduce the number of LOTs impacted. VicRoads refers to Schedule A of its letter to the Minister for Planning dated 2 June 2017 which identifies the reduction in LOTs impacted by the Project as a result of design refinement.

1. As a result of these and other steps taken by VicRoads, VicRoads responded to community concerns, and employed an ecologist who has individually counted and catalogued all trees in the Section 2B Project area and identified all trees which will be impacted by the Project. VicRoads refers to Schedule A of its letter dated 2 June 2017 which provides exact numbers of the LOTs which will be impacted by the works.
2. VicRoads also refers to paragraphs 3.11 and 3.12(a)-(e) of its letter dated 2 June 2017, which details the steps taken by VicRoads following its consultation efforts to reduce the number of trees (including LOTs) impacted by the works through further design refinement. As indicated in Schedule A of the letter, these efforts have resulted in a reduction of the total number of LOTs and Very Large Old Trees required to be removed as part of the broader Section 2 works from 1,581 (estimated in May 2014) to 854 (as at June 2016).
3. The impact on LOTs will no doubt be taken into account by the Minister for Planning in determining whether to prepare, adopt and approve the Amendments in the form proposed by VicRoads. However, in terms of whether further consultation on this issue is warranted, VicRoads considers that it has consulted, and addressed with the community, the fact that LOTs will be impacted by the Project and specifically the issues arising from the understatement oi the number of LOTs impacted by the Project in the EES. In VicRoads' view, the views of those impacted by this issue have been made known such that further consultation on that issue is not warranted.

174 The letter also addressed whether further consultation was needed in relation to the other errors alleged by the plaintiffs in the EES:

1. VicRoads considers that the consultation carried out as part of the Environment Effects Statement (as detailed in paragraph 24 above) provided an appropriate opportunity for those affected by the works to make their views known.
2. VicRoads notes that certain members of the community have also expressed other concerns about the Project. These concerns involved additional allegations that there were other 'errors' in the assessment of environmental impact that would be occasioned by the works.
3. VicRoads does not accept that there were other 'errors' in the environmental assessment carried out as part of the Environment Effects Statement. Despite this position, VicRoads has ensured that as part of the information prepared by VicRoads in support of the Amendments, that:

(a) Ecology and Heritage Partners was specifically asked to deal with all of the issues which had been previously raised and ensure that any subsequent report expressly considered those issues. In this regard, VicRoads refers to paragraph 3.9 of its letter dated 2 June 2017; and

(b) obtained an independent review (carried out by Brett Lane and Associates) of Ecology and Heritage Partners to ensure that it accurately captured the impact that the works would have on the environment, including the matters which have been characterised as 'errors'.

1. VicRoads is satisfied that the further information provided to the Minister for Planning accurately describes the impact of the Project on the environment and specifically any matters that have been raised by the community. VicRoads believes that further consultation on these issues is not necessary.

175 Annexure A to VicRoads' letter was an assessment of the likely timeframes associated with the options for the notification process. In summary, assuming no delay due to legal challenges, the following likely scenarios and time estimates were given:

1. the Minister is satisfied that it is appropriate to exercise the powers available under section 10(4) of the Act and subsequently approve an amendment - construction works to commence thereafter;
2. the Minister appoints an Advisory Committee and subsequent to receiving the Advisory Committee's advice, the Minister is satisfied that it is appropriate to exercise the powers available under section 20(4) of the Act and subsequently approve an amendment - construction works to commence in 12 to 18 months' time;
3. the Minister is not satisfied that it is appropriate to exercise the powers available under section 20(4) of the Act that that the 'usual' amendment process occurs - construction works to commence in 12 to 18 months' time; and
4. the Minister appoints an Advisory Committee and subsequent to receiving the Advisory Committee's advice, the Minister is not satisfied that it is appropriate to exercise the powers available under section 20(4) of the Act so that the 'usual' amendment process occurs - construction works to commence in 24 to 36 months' time.

176 It was not only VicRoads that supported an exemption from the notice requirements of the Planning Act. The officer amendment report prepared by DELWP concluded that an exemption was appropriate:

The interests of Victoria or any part of Victoria make such an exemption appropriate because:

• The previous EES process included public consultation that enabled interested parties to make submissions about the impacts of the project and its alignment and the proposed planning controls.
• VicRoads has undertaking further consultation with various parties and has refined its analysis of the impact of works on native vegetation and its methods for reducing any impact. The more robust approach to this analysis enables greater certainty about the impact of works.
• The project is a genuine matter of State significance, with State and Commonwealth funding in place for construction. It is supported by State, Commonwealth and local governments.
• There are significant undesirable consequences of further delays to the project, related to the construction costs and awarding of tenders. As the amendment is considered suitable for approval, it is considered to be in the interests of Victoria to avoid further delays and financial consequences by facilitating the timely delivery of the project.
• Section 2B of the duplication forms a critical linkage between the previously constructed sections of the project (Sections 1 and 2A) and Section 3. Delivery of the safety and efficiency improvements from the fully duplicated Highway (estimated at a 60% crash reduction) will not be released until this section is complete. Safety and efficiency are further impacted by increasing traffic volumes on the Western Highway, predicted to double by 2025, due to industrial and commercial sector [growth, and] due to population growth in Adelaide and Melbourne.

177 The briefing note to the Minister attached both VicRoads' letter and the officer amendment report. It recommended an exemption as the preferred option, for the following reasons:

1. The main benefit of exemption from notice requirements is that it would enable the prompt adoption and approval of the amendment. This would allow construction of the duplication to commence shortly after approval of the amendment and more quickly realise the public benefits stated by VicRoads: reduced risk of vehicle accidents and improved efficiency and associated economic benefits. It would also avoid incurring further costs related to re-awarding the construction tender.
2. VicRoads states that the use of the exemption is in the interests of Victoria due to the safety benefits that the duplicated highway would provide. VicRoads estimates that the fully duplicated Western Highway would result in a 60 per cent reduction in vehicle accidents, and a delay of up to 18 months for the completion of the works would result in four people being involved in major vehicle accidents.

1. Furthermore, VicRoads contends that exempting yourself from notice requirements is in the interests of the State due to the State and Commonwealth funding already committed or expended for the duplication (approximately $8.8 million). VicRoads expects that re-awarding the construction tender after a delay to the approval, such as for an advisory committee, would increase the overall public cost of the duplication.

1. VicRoads has continued to consult with local parties interested in the project and has updated its design for the project to significantly reduce its impact on native vegetation.
2. If you are satisfied that an exempt from notice is in the interest of Victoria or part of Victoria, it is open to you to exercise the exemption power provided by section 20(4) of the PE Act. ...
3. On balance DELWP considers this the preferred option:
   1. The amendment is consistent with state policy and will facilitate the timely delivery of the project providing significant benefits to the region and state.
   2. The project is a genuine matter of state significance, with state and Commonwealth funding in place for construction.
   3. There are significant undesirable financial consequences of further delays to the project, related to the construction costs and awarding of tenders.
   4. Delivery of the safety and efficiency improvements from the fully duplicated highway will not be realised until Section 2B is complete and the consequences of delay are clearly undesirable.

178 The plaintiffs' 'no evidence' submission was not sustainable in light of the material actually provided to the Minister in December 2017. The Minister's conclusion that undertaking the usual notification process in relation to Amendment C37 would further delay completion of the Stage 2 project was supported by material before him. That material included an estimate of the timeframes for each of the options under the notification process. Those timeframes were not inflated and were consistent with the process set out in Pt 3, Div 2 of the Planning Act.

179 In any event, I did not accept the plaintiffs' premise that there had to be some 'evidence' of the time it would take to complete the notification process. The Minister is a planning authority for every planning scheme in Victoria,[118] and may be taken to understand what is involved in complying with the requirements of ss 17 to 19, and how long that process is likely to take.

180 As to the plaintiffs' 'bootstraps' submission,[119] there was plainly material on which it was open to the Minister to conclude that the benefits of notification would be marginal, given the formal and informal public consultation that had taken place since 2012. It was also open to the Minister to conclude that those benefits were outweighed by the advantages of expediting the amendment. The material before him identified significant safety and economic benefits that would flow from an exemption.

181 The fact that VicRoads first became aware of the large old trees error in 2014 did not make it unreasonable for the Minister to assess the costs and benefits of a further notification process as matters stood in December 2017. This submission of the plaintiffs conflated two separate aspects of the approval process for the Stage 2 project. In particular, the submission overlooked the fact that it was not the large old trees error that had led to the Minister's consideration of Amendment C37. It was the unexpected expiry of the incorporated document included by Amendment C27 to the Ararat Planning Scheme, which was not discovered until February 2017.

182 In conclusion on this issue, this was not a case where the Minister's reason for favouring expedition was wholly implausible, in contrast with the exemption under review in East Melbourne Group. To the contrary, there was a sound basis in the material for the Minister's opinion that it was in the interests of Victoria generally, and the Western part of Victoria in particular, to exempt the amendment from the notification process.[120]

Was the Adoption and Approval invalid for failure to consider environmental effects?

183 Separately from their arguments based on the Minister's Assessment, the plaintiffs contended that the Adoption and Approval was invalid because:

(a) the Minister was under an implied duty to take into account any significant effects that the amendment might have on the environment;[121] and

(b) had failed to take those effects into account in adopting and approving Amendment C37.[122]

An implied duty to consider significant environmental effects?

184 The plaintiffs pleaded that a duty to take into account any significant effects that an amendment to a planning scheme might have on the environment, when deciding whether to adopt the amendment, is to be implied from ss 4(1), 4(2), 12(2)(aa), (ab), and (b), and 29 of the Planning Act. In relation to the decision to approve an amendment, the duty is to be implied from ss 4(1), 4(2), 12(2)(aa), (ab), and (b), and 35.[123] The basis for the pleaded implied duty was not enlarged upon in the plaintiffs' written submissions or their oral submissions at trial.

185 The objectives of planning in Victoria, and the planning framework established by the Planning Act, are set out in s 4:

(1) The objectives of planning in Victoria are -

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.

(2) The objectives of the planning framework established by this Act are -

(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;

(l) to provide for compensation when land is set aside for public purposes and in other circumstances.

The objectives in ss 4(1)(a) and (b), and 4(2)(d) appear to be of particular relevance here.

186 Section 12 of the Planning Act sets out the duties and powers of planning authorities:

(a) implement the objectives of planning in Victoria;

(b) provide sound, strategic and co-ordinated planning of the use and development of land in its area;

(c) review regularly the provisions of the planning scheme for which it is a planning authority;

(d) prepare amendments to a planning scheme for which it is a planning authority;

(e) prepare an explanatory report in respect of any proposed amendment to a planning scheme;

(f) provide information and reports as required by the Minister.

(2) In preparing a planning scheme or amendment, a planning authority -

(a) must have regard to the Minister's directions; and

(aa) must have regard to the Victoria Planning Provisions; and

(ab) in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and

(b) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and

(c) must take into account its social effects and economic effects.

187 Section 8 of the Planning Act provides that the Minister is a planning authority and may prepare amendments to any provision of a planning scheme.

188 Section 29 empowers a planning authority to adopt an amendment to a planning scheme, with or without changes. A planning authority may only adopt an amendment after it has complied with Pt 3, Divs 1 and 2 in respect of the amendment. Those Divisions provide for a process of notification and public submissions about an amendment prepared by a planning authority, which must be followed unless the Minister grants an exemption under s 20.

189 Section 35 provides for the final step in the amendment process, the approval of an amendment by the Minister:

(a) approve an amendment or a part of an amendment prepared by the Minister or submitted to the Minister under section 31 -

(i) with or without changes; and

(ii) subject to any conditions the Minister wishes to impose; or

(b) refuse to approve the amendment or part of the amendment.

(2) If the Minister approves only a part of an amendment that part becomes a separate amendment.

(3) The Minister may approve further parts of an amendment at any time.

(4) ...

190 The defendants pointed out that, in preparing Amendment C37, the Minister was required by s 12(2)(b) of the Planning Act to take into account any significant effects which he considered the amendment might have on the environment. They submitted that there was no such obligation imposed by the Planning Act on a planning authority, when adopting an amendment under s 29, or on the Minister, when approving an amendment under s 35. The fact that a duty to take into account significant environmental effects was expressly imposed by s 12(2)(b), but did not appear in ss 29 or 35, was a strong indication that no additional duty was to be implied.

191 I accept the defendants' submission. The objectives in ss 4(1)(a) and (b), and 4(2)(d) of the Planning Act are achieved by the explicit obligation in s 12(2)(b), to take into account any significant effects that the planning authority considers that the amendment might have on the environment. This ensures that environmental effects are considered at the earliest stage in the amendment process. The Planning Act then requires the planning authority to consider any submissions made in relation to the amendment,[124] and the report of any panel appointed to consider those submissions, before deciding to adopt the amendment.[125] It does not require the planning authority or the Minister to take into account something that was already considered at the preparation stage. No such duty is to be implied. To put it another way, the significant environmental effects of an amendment is a mandatory consideration when preparing the amendment, but not at later stages of the amendment process.

192 The preparation of Amendment C37 - as distinct from its adoption and approval - was not challenged in this proceeding. In any event, the evidence was that, in preparing the amendment, the Minister did what was required by s 12(2)(b), and took into account significant effects that he considered the amendment might have on the environment.

193 As outlined above, there was material before the Minister that addressed all of the environmental concerns raised by the plaintiffs in this proceeding. The briefing note and its attachments, together with the Minister's reasons for the Exemption Decision, demonstrate that those concerns were taken into account by the Minister.[126] In particular, the Minister's decisions in December 2017 were made with better information about the impact the Section 2B works would have on native vegetation and large old trees than was available when the former Minister made the Assessment in May 2013.[127]

194 None of the grounds relied on by the plaintiffs has been made out, and there is no basis for the declarations they seek. The proceeding must be dismissed.

195 I will make orders for the provision of brief written submissions on the question of the costs of the proceeding. My starting point on that question is that, unless I am persuaded otherwise, the plaintiffs should pay the defendants' costs of the proceeding, including any reserved costs, on a standard basis.

[1] The Roads Corporation was abolished on 1 January 2020 and its functions transferred, relevantly here, to a corporation sole titled 'Head, Transport for Victoria'. At the commencement of the trial, I made an order substituting Head, Transport for Victoria as the first defendant to the proceeding. Because this judgment concerns matters that occurred before 1 January 2020, I will refer to the first defendant as VicRoads.

[2] Western Highway Project Section 2 (Beaufort to Ararat).

[3] Pursuant to s 6(2)(j) of the Planning and Environment Act 1987 (Vic) (Planning Act).

[4] Mackenzie v VicRoads [2016] VSC 698.

[5] Affidavit of Stephen Pattinson dated 3 June 2019, [41], [52].

[6] Clark v Minister for Environment [2019] FCA 2027.

[7] EE Act, s 8C(2) applies ss 4(3), 5, 6(1) and 6(3) to the preparation of an EES referred to in s 8C(1).

[8] Victoria, P_arliamentary Debates,_ Legislative Assembly, 6 October 2005, 1356-1358 (Rob Hulls, Minister for Planning).

[9] Ararat Planning Scheme - Amendment C27, Explanatory Report.

[10] Section 8C is set out in full at [27] above.

[11] Environment Effects (Amendment) Act 2005 (Vic), s 1.

[12] The Minister's second reading speech is extracted at [24] above.

[13] Section 8F is set out at [28] above.

[14] See [21]-[22] above.

[15] (2010) 28 VR 257 (Friends of Mallacoota).

[17] Statement of Claim, Schedule 2, [45]-[49], [63], [76]-[77], [80], [87].

[18] Statement of Claim, [37]-[40A].

[20] [2019] VSC 84 (Neppessen).

[22] Relying on Chandra v Webber [2010] FCA 705; (2010) 187 FCR 31, [40] and Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [442].

[23] For example, Chandra v Webber, Neppessen, and Port Phillip Scallops v Minister for Agriculture (2018) 238 LGERA 344.

[24] For example, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 170.

[25] Australian Retailers Association, [458].

[26] Ecology & Heritage Partners, Final Report - Ecological Assessment: Western Highway Project, Section 2B, Victoria, 29 May 2017; Ecology & Heritage Partners, Responses to the Key Ecological Issues Raised by MairiAnne Mackenzie: Western Highway Project, Section 2B, 26 June 2017; and Brett Lane & Associates, Western Highway Duplication: Buangor to Ararat, Section 2B - Review of 2017 Flora and Fauna Assessment, 3 July 2017. These reports were exhibits DCK-6A, DCK-8A and DCK-8 to the affidavit of David Campbell Kirkland dated 21 February 2019.

[27] See [191]-[193] below.

[28] Plaintiffs' amended closing submissions dated 24 March 2020, [124].

[29] [2005] FCA 1707; (2005) 148 FCR 446 (Australian Retailers Association).

[30] Australian Retailers Association, [636]-[637].

[31] Consolidated further, further amended statement of claim filed 17 October 2018 (Statement of Claim), [37].

[34] Statement of Claim, [41]. This ground relied on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.

[37] EE Act, ss 6(2), 8C(1). See [45]-[54] above.

[40] Transport Integration Act 2010 (Vic), Pt 2.

[41] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 40-41.

[42] Plaintiffs' amended closing submissions dated 24 March 2020, [3].

[43] Section 19(1) of the Transport Integration Act provides that 'the precautionary principle means that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.'

[46] Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 159-160 (Brennan, Gaudron and Gummow JJ); Friends of Mallacoota, [104]-[107].

[47] See [51]-[55] above.

[48] See [63](a) above.

[49] Statement of Claim, Schedule 2 - Plaintiffs' further particulars of claim, including particulars of alleged errors in Minister's Assessment.

[50] Environment Effect Statement for the Western Highway Duplication Project as approved for public exhibition, August 2012 (EES), 13-2; see also 13-8, 13-34.

[51] EES, Technical Appendix H - Biodiversity and Habitat Impact Assessment Report - Flora, Fauna and Ecological Communities, August 2012 (EHP 2012 Report), 14, 92.

[53] Western Highway Section 2 EES Inquiry and Draft Planning Scheme Amendments, Panel Report, 11 February 2013 (Panel Report), 43.

[57] Very High conservation significance and High conservation significance.

[59] National Environmental Significance.

[60] VicRoads Access Management Policy road category 3.

[61] Native Vegetation Management Framework.

[63] Western Highway Duplication Section 2, Beaufort to Ararat - Underestimation of Large Old Trees within the Environment Effects Statement, March 2016 (Large Old Trees Report), 11.

[65] Large Old Trees Report, 12-14 and Figures 5 and 6.

[66] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 180-183.

[67] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ).

[68] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [41]-[42]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [31].

[69] [2019] VSCA 151 (Chang v Neill).

[71] See [79] above.

[72] Plaintiffs' amended closing submissions dated 24 March 2020, [97], [99].

[73] Plaintiffs' amended closing submissions, [100].

[74] In relation to the alleged Degraded Treeless Vegetation error, the plaintiffs relied on a report of Blue Devil Consulting dated October 2015, a report of Biosis dated 22 April 2016, and a report of Practical Ecology dated 20 July 2016. In relation to the alleged Golden Sun Moth habitat error, they relied on a report of Ecology Australia dated February 2016. In relation to the Box-Gum Community error, they relied on the Blue Devil Consulting report of October 2015 and the Ecology Australia report of February 2016. See Schedule 2 to the Statement of Claim, [45]-[49], [63], [76]-[77].

[75] See [66]-[68] above.

[76] Statement of Claim, Schedule 2, [78].

[79] Statement of Claim, [38]-[39].

[81] Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429, [25]; Chang v Neill, [35]-[42], [50]-[52].

[82] Relying on Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151, [60]; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309, [30].

[83] Statement of Claim, Schedule 2, [45].

[85] Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158, [58]-[65].

[86] Peko-Wallsend, 40-42 (Mason J); S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).

[89] (2010) 240 CLR 611 (SZMDS), [133].

[91] See [105] above.

[93] Amended defence of the third defendant dated 31 August 2018, [43.5].

[94] Ventana Pty Ltd v Federal Airports Corporation (1997) 75 FCR 400, 410; Seventh Columbo Pty Ltd v Melbourne City Council (1998) 100 LGERA 93, 99; MA Zeltoff Pty Ltd v Stonnington City Council [1998] VSC 270; [1999] 3 VR 88, [26].

[96] Planning Act, ss 36, 37. Section 37 provides that an amendment comes into operation when notice of approval is published in the Government Gazette or on any later day specified in the notice.

[98] Planning Act, s 38. See specifically s 38(4).

[99] For example, Leslie v City of Essendon [1951] VicLawRp 55; [1952] VLR 222.

[100] For example, East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605.

[101] Vanstone v Clark (2005) 224 ALR 666, [104]-[105]. Weinberg J's summary of the principles governing judicial review of delegated legislation referred extensively to D Pearce and S Argument, Delegated Legislation in Australia (2nd ed, 1999). His Honour's summary has been cited with approval in Messages on Hold Australia Pty Ltd v City of Perth [2007] WASC 226, [22]; Qi Guang Guo v Minister for Immigration and Citizenship [2009] FCA 356; (2009) 176 FCR 83, [36]; and Love v State of Victoria [2009] VSC 215, [255].

[103] [2009] VSC 215, [255].

[104] The Minister did not submit that the adoption of a planning scheme amendment was an act of delegated legislation, as distinct from an administrative decision that must precede the approval of an amendment. The point is arguable either way, but was not argued in this case.

[105] See [191]-[193] below.

[106] See [51]-[55] above.

[107] See [73]-[75], [87], [123], [129], [131], [135]-[136] above.

[108] Affidavit of David Campbell Kirkland dated 21 February 2019, [11]-[21], exhibits DCK-9, DCK-10A to DCK-10L, and DCK-11.

[114] [2008] VSCA 217; (2008) 23 VR 605 (East Melbourne Group).

[115] East Melbourne Group, [192] (Ashley and Redlich JJA). See also Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development [1993] 1 VR 627, 642.

[116] East Melbourne Group, [332] (Ashley and Redlich JJA).

[117] Plaintiffs' amended closing submissions dated 24 March 2020, [118].

[119] See [169]-[170] above.

[120] As was the case in Lower Our Tracks Inc. v Minister for Planning (2016) 219 LGERA 352, [191].

[126] See [152]-[162], [173]-[174] above.

[127] See [154] and [159]-[160] above.