[2004] VCAT 2432

(given orally at the hearing and subsequently revised)

1

This case raises the interesting question of whether the tribunal has power to make an order concerning compliance with section 97E of the Planning and Environment Act 1987 ("the Act"). It also raises the question as to whether any order should be made in the circumstances. It is necessary that I provide some context.

2

On 31 March 2004 Pacific Hydro Ltd applied to the Minister for Planning ("the Minister") for a permit pursuant to the Moorabool Planning Scheme to construct a wind energy generation facility on land at Yaloak, near Ballan. The facility was proposed to comprise 70 wind generators, up to 119 metres in height. The Minister is nominated in the scheme as the responsible authority for considering and determining applications for permit in relation to the use and development of land for the purpose of a wind energy facility with a capacity greater than 30 megawatts. The proposed wind farm had a capacity greater than 30 megawatts.

3

The application for the permit was supported by:

•

an executive summary consisting of 23 pages, plus plans, which gave an overview of the proposed development and use, discussed policy provisions, and provided an overview assessment

•

a main report of some 170 pages, supported by plans, photo montages and other technical information. The main report described the project, set out relevant policies, provided an assessment of landscape and visual impact issues, dealt with issues concerning flora and fauna, including avifauna, cultural heritage, acoustics, economic and social effects, electromagnetic issues and the like. The main report was similar to a typical environment effects statement.

4

In May 2004 Pacific Hydro provided further technical information.

5

On or about 21 April 2004 the Minister decided to call in the planning permit application under section 97C of the Planning and Environment Act 1987. This power forms a suite a provisions in Division 6 of Part 4 of the Act which enables the Minister to call in applications made to a responsible authority. The power is designed to enable the Minister to determine applications that raise a major issue of policy. Usually the power would be exercised where the initial responsible authority is a municipal council. However in this case the Minister was herself the initial responsible authority. But this does not mean that the Minister could not call in the application; by calling the matter in she became the determining body as Minister, rather than as responsible authority; and the matter was then subject to a different set of provisions, which attracted both the obligations and immunities set out in Division 6 of Part 4 of the Act.

6

On 9 June 2004 the Minister directed Pacific Hydro to give notice of the application to persons who might be affected by the proposed development and use. This advertising was carried out in June and July of 2004.

7

A number of persons objected to the grant of a permit, including the present applicant, Kevin Ramholdt.

8

Section 97E of the Act provides, in substance, that where objections have been received in relation to an application being considered under Division 6 of Part 4 of the Act, the Minister must refer those objections and any submissions received to a panel appointed under Part 8 of the Act.

9

Section 97E(2) then provides:

(2) The panel must consider the objections and submissions referred to it and give any person who made an objection or submission referred to it a reasonable opportunity to be heard.

10

A panel was appointed to consider the objections and submissions.

11

It appears that a directions hearing was held on 14 September 2004.

12

On 22 September 2004 the panel wrote to the permit applicant, objectors and submitters ("the parties"), indicating that a hearing would commence on 29 November 2004 and continue until 9 December 2004. The panel enclosed a timetable in relation to the hearing. It also indicated that, as an outcome of the directions hearing, it sought further, specified information from the parties (mainly from Pacific Hydro) to assist it in its deliberations. The further information related to planning scheme provisions, avifauna, noise, maps and images, landscape, traffic, electricity reticulation and other like matters.

13

In the letter of 22 September 2004 the panel contemplated that the further information, and any expert reports to be relied upon at the hearing, be circulated by 3 November 2004.

14

On 3 November 2004 Pacific Hydro provided a substantial amount of the further information requested by the panel; but not the expert reports upon which it intended to rely at the hearing. The additional information was contained in a document containing about 70 pages, including a significant number of plans and montages.

15

At some time around 3 November 2004 Pacific Hydro contacted the panel and indicated it was having difficulty in meeting the deadline of 3 November 2004 in relation to the circulation of expert witness reports. The panel accepted that there should be some variation in the timetable and, by letter dated 12 November 2004, set forth a revised timetable, in which various expert reports were required to be circulated by 10 November, 17 November, 19 November, 29 November and 1 December 2004. Further the panel hearing was postponed so as to commence on 6 December 2004 and to be held on 6, 7, 8, 9, 10 December and 20, 21 and 23 December 2004.

16

On 22 November 2004 the panel issued a further version of the timetable for the panel hearings. This effected minor, and insignificant changes in the order in which the proceedings were to be held.

17

I have been informed that the expert reports to be relied upon by Pacific Hydro at the panel hearing were circulated by the revised dates required by the panel. Further I am informed and, for the present purposes accept, that the expert reports that were circulated contained the further information required by the panel on 22 September 2004 which had not otherwise been provided on 3 November 2004.

18

By letter dated 15 November 2004 Mr Ramholdt asked the tribunal to intervene in the panel proceedings on the basis that he did not believe that he and other objectors were being given a reasonable opportunity to be heard. In his letter he specifically referred to section 161 of the Planning and Environment Act 1987 and the obligations contained therein in relation to a panel being bound by the rules of natural justice and acting according to equity and good conscience.

19

The senior registrar of the tribunal interpreted the letter as probably being an application under section 39 of the Act and notified Mr Ramholdt accordingly. Subsequently, on 23 November 2004, Mr Ramholdt completed a form and lodged it with the tribunal specifically applying to the tribunal under section 39 of the Act. A week of so later Freehills, solicitors for Pacific Hydro, took the point that section 39 was not available as it was confined to amendments to planning schemes and did not extend to the circumstances of this case.

Section 39

20

Section 39 of the Act is a provision that enables a person who is substantially or materially affected by certain failures to comply with the Act to apply to the tribunal to obtain relief. However the section only relates to a failure to comply with certain part of the Act "in relation to an amendment". In the present case there is no proposed amendment to a planning scheme. Hence section 39 is inapplicable.

A declaration provides another basis for relief

21

That raises the question as to whether or not the letter written by Mr Ramholdt can be interpreted as an application to invoke some other jurisdiction of the tribunal, such as the declaration power in section 149B of the Act. As a general rule the tribunal should be willing to amend application documents to enable the substance of matters to be ventilated, particularly when an application is brought by a layperson.

22

Whether section 149B is available is a difficult and complex question and, in the present circumstances, it is unnecessary to give any definitive view upon it. However I am inclined to think that the tribunal could entertain the issues raised by Mr Ramholdt under that section.

23

Section 149B of the Planning and Environment Act 1987 provides:

(1) A person may apply to the Tribunal for a declaration concerning -

(a) any matter which may be the subject of an application to the Tribunal under this Act; or

(b) anything done by a responsible authority under this Act.

24

The Minister is not a responsible authority under the Act in exercising her powers as Minister under Division 6 of Part 4 of the Act. It is true that, by reason of section 97D(2)(a), certain provisions apply to the Minister "as if the Minister were the responsible authority". But, in my opinion, that does not make the Minister the responsible authority as such. This would be so even in the somewhat unusual circumstances which exist here where the Minister was the original responsible authority. The effect of this call in was to change the hat that the Minister was wearing from "responsible authority" to "Minister, deemed to be a responsible authority".

25

Section 97M of the Act contains a number of provisions which restrict the ability of a person to apply to the tribunal in relation to an application which has been referred to the Minister under Division 6 of Part 4 of the Act. Thus section 97M provides that Division 2, which deals generally with applications to review decisions of responsible authorities, does not apply. It also provides that Division 3, which deals with the cancellation and amendment of permits, does not apply. It also provides that section 149A, which deals with applications to interpret planning schemes and the like, does not apply.

26

However I am inclined to think that the tribunal would still have power under section 149B to deal with the substance of the current complaint because the complaint concerns a matter which may be the subject of an application to the tribunal under section 114 of the Act. Section 114 provides that a person may apply to the tribunal for an enforcement order if a use or development contravenes, or has contravened, or unless prevented by the enforcement order, will contravene the Act.

27

If section 97E(2) is not complied with the consequence may be that any permit that is subsequently granted would be invalid. I use the word "invalid" to mean "void", not merely voidable.[1] In such circumstance a person acting upon such a void permit would be seeking to use or develop land unlawfully and this could be the subject of an enforcement order application to the tribunal. In such a case the substance of the matter the tribunal would need to consider would be whether or not there had been some procedural flaw leading to the grant of a permit which made the permit unlawful. This is the same matter that is the substance of the present application. Given that, and given the elasticity provided by the word "concerning" in section 149B, I think that the tribunal does have the power to address the substance of the issue raised by the applicant in the present case.

28

It is important, as the High Court has recently observed[2], that powers given to specialist courts and tribunals be interpreted amply to give effect to the legislative policy that the specialist court or tribunal address legitimate issues of concern. Further it is quite clear that non-compliance with section 97E(2) could be the subject of legal action in some court of law, if not in VCAT; and there are strong policy reasons why the power given to this tribunal should be interpreted in a way that enables it to deal with such concerns rather than require persons to engage in more expensive litigation in other places. I point to the legislative response to the Doug Wade[3] case in the mid 1980s, which was designed to ensure that the planning tribunal provided accessible, timely and inexpensive recourse in relation to matters of a procedural kind arising under the Act.

29

Be that as it may, I am not persuaded that the applicant has made a case for the making of a declaration that the panel will be failing in its duty to provide him with a reasonable opportunity to be heard.

30

Panels are obliged to act fairly and to give persons who it must hear a reasonable opportunity to be heard. What is a "reasonable" opportunity to be heard will usually require the exercise of judgment. Hence as a general principle, the tribunal should show restraint in interfering in the procedure adopted by a panel. The panel will often be in a better position to assess what is fair and reasonable in the circumstances. It will usually have a more detailed knowledge of the issues in a case. It will be able to observe matters directly, rather than rely on evidence of an indirect kind. It is also true that there will often be more than one procedural approach which is fair and reasonable. The tribunal should not interfere unless it is persuaded that the approach to be taken by the panel will be clearly such as to defeat the legislative objective that there be a reasonable opportunity to be heard.

31

Further, the onus is upon an applicant to demonstrate that he or she will be denied a reasonable opportunity to be heard.

32

Even if I take into account the practical nature of the tribunal and its ability to receive evidence informally, I am not persuaded that that onus has been discharged. The application materials are extremely comprehensive. Moreover they have been publicly available since March 2004, or at least since the advertising took place in June and July 2004.[4] It is common in panel hearings that expert evidence is called by a proponent in support of the application. But it is also common that that expert evidence, in large part, reinforces and amplifies information that has already been provided in a document such as an environment effects statement or the information which supports this application. Although I have not examined the various expert reports that are to be relied upon, I infer on the limited material before me[5] that those reports largely duplicate information in the statement accompanying the application; and to the extent that additional information has been provided, it covers, in the scheme of things, relatively confined areas.

33

The timetable for the panel hearing envisages that Pacific Hydro will take most of the first stanza of the hearing; with most of the objectors taking the second stanza, which is to commence on 20 December 2004. There is some weight in the submission made by Mr Power, for Pacific Hydro, that the objectors would have until 20 December 2004 to prepare. But I prefer to regard the commencement of the hearing as the relevant date in assessing what is fair and reasonable, because cross-examination of expert witnesses called by Pacific Hydro will be required then; this is often important; and a party needs to be sufficiently prepared to conduct cross-examination.

34

But even on this basis I am not satisfied that the timetable which has now been adopted by the panel, and which has been complied with to date, is unreasonable or would prevent the objectors from having a reasonable opportunity to be heard. Much of the substantial information in the expert reports was provided many months ago; and to the extent that additional or different information has been provided, the objectors have had between three weeks and one week before the commencement of the hearing to consider and evaluate the information. This is not unreasonable in all the circumstances.

35

I appreciate that many people who wish to participate in planning hearings are lay persons and rely upon volunteer resources for assistance. Further they often need to take time from work in order to participate in hearings. The Act recognises that it is important that Victoria's planning system be a participatory system. These factors ought to carry some weight. On the other side of the ledger, economic development is important for the State. Thus it is important that procedures for assessing economic development proposals be efficient and be within reasonable timeframes. There is a balance to be struck. In this case, striking a proper balance, the proposed procedure is reasonable; or, more relevantly, has not been shown to be unreasonable. I dismiss the application.

[1] See Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147. Whether potential nullification by a court or tribunal operates ab initio or retrospectively does not matter for present purposes.

[2] Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59.

[3] Thorne v Doug Wade Consultants Pty Ltd [1985] VicRp 48; [1985] VR 433.

[4] I do not place any emphasis upon information sessions that were said to be held by Pacific Hydro in mid-2003, because I am not satisfied that those sessions necessarily related to the same proposal as is now being pursued. I also think that the focus should be upon the information that has been provided pursuant to the statutory requirements, rather than that which has been informally provided. Indeed, one of the issues in the famous Doug Wade case was the problems that had arisen by reason of the council relying on an informal statement that there was no need to require advertising because next door neighbours had "agreed to the plans".

[5] It is after all a matter for the applicant to demonstrate that there will not be a reasonable opportunity for him to be heard; so I think it is appropriate that I accept what has been said by the solicitor for Pacific Hydro in this regard in the context of this urgent application.