1. My response to the questions of law framed in writing and that emerged at the hearing are as follows:
   1. The Tribunal is required to be independently satisfied that the proposed development meets the requirements of the planning scheme, including a consideration of clause 15.09, and that the EPBC Act decision cannot bind the Tribunal to make a decision in a particular way.
   2. The Tribunal may consider the EPBC Act decision under section 60(1A)(j) of the Planning and Environment Act 1987 if it considers that the circumstances so require.
2. The application for costs by the permit applicant is refused.

Mr B Sydes, solicitor, Environment Defenders Office

Mr Mark Naughton, solicitor, of Planning and Property Partners

1. I have been asked to determine a question of law raised by the South Beach Wetlands & Landcare Group Inc. in the context of a hearing about a permit application to subdivide land for residential purposes adjacent to a wetland. The wetland's habitat for the bird species, Lathams Snipe. This is an endangered, migratory species listed under international agreements.[1] Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Commonwealth Department of Environment and Heritage has made a decision that the proposed subdivision is not a "controlled action" under this Act.
2. A legal question was raised at the conclusion of the hearing before Members O'Leary and Mainwaring on 16 July 2008. The Tribunal directed the Landcare Group to frame the question of law in writing, which it did in the following terms:

Is the Tribunal required to be independently satisfied that the proposed development meets the requirements of the Moyne Planning Scheme, and in particular Clause 15.09, notwithstanding the decision by the Commonwealth Department of Environment and Heritage that the proposed action is not a "controlled action" under sections 20 and 20A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) provided it is undertaken in a specified manner?

1. A written submission dated 6 August 2008 by the permit applicant's legal representative essentially agreed that the Tribunal was required to be independently satisfied about all relevant matters under the Planning and Environment Act 1987 and the Moyne Planning Scheme. Its jurisdiction and ambit of discretion are not, as a direct consequence of the Commonwealth Department of Environment and Heritage determination, confined in any express way by any statute provision.
2. The council adopted a similar view. The EPBC Act approval does not bind the Tribunal in the planning permit assessment. It must assess the merits as it sees them.
3. The parties therefore appear to be in agreement that the legal question framed by South Beach Wetlands & Landcare Group Inc must be answered in the affirmative. The Tribunal is required to be independently satisfied that the proposed development meets the requirements of the planning scheme, including a consideration of clause 15.09, and that the EPBC Act decision cannot bind the Tribunal to make a decision in a particular way.
4. It seems to me that this is self evident. The Tribunal must form its own opinion and exercise its own discretion in making a decision about this planning permit application. A decision by another body made in a different jurisdiction under different legislation cannot bind the Tribunal or require it, as a matter of law, to make a particular decision or reach a particular conclusion unless the legislative framework that the Tribunal is acting in requires this. The Tribunal's responsibilities and discretion arise under the Victorian Planning and Environment Act 1987 and there is nothing within it or the Moyne Planning Scheme to suggest that the EPBC Act decision governs the Tribunal's decision in any way.

Can the Tribunal have regard to the EPBC Act decision?

1. However, it seems that this is not the nub of the Landcare Group's issue. It emerged at the hearing that the real question, and the source of dispute between the parties, is whether, as a question of law, the Tribunal can have any regard to the EPBC Act decision at all.
2. The Landcare Group submitted that not only can the Tribunal not adopt the EPBC Act decision in exercising its discretion, but it cannot even consider it as a relevant matter under section 60(1A)(j) of the Planning and Environment Act 1987. It is not simply a question of what weight ought be given to the EPBC Act decision. Instead, the Tribunal cannot properly consider it at all, even as part of the factual matrix surrounding the permit application. The group says that if the Tribunal considers it is at all relevant, then it opens up the question of the correctness of this decision. It is not the Tribunal's role and it has no power to review the correctness or otherwise of the EPBC Act decision.
3. In my view such an argument is misconceived. Unquestionably, the Tribunal has no ability to review the correctness or otherwise of the EPBC Act decision by the Department of Environment and Heritage. Nevertheless, the fact remains that a decision has been made. Whether it is relevant to the quite different decision which the Tribunal must make is a question of fact for the Tribunal to determine based on the circumstances of the case.
4. Clause 65.01 of the planning scheme provides that before deciding on an application, the responsible authority (and the Tribunal on review) must consider, as appropriate, the matters set out in section 60 of the Act. The words of section 60(1A) commence:

Before deciding on an application, the responsible authority [or Tribunal on review], if the circumstances appear to so require, may consider -

There are then listed a range of matters, including at sub-section (j) "any other relevant matter."

1. If the Tribunal, considering all the circumstances of the case, reaches a conclusion about the relevance of a matter that was not open to it to reach, based on the Wednesbury principle of unreasonableness,[2] this would constitute an error of law. But until the Tribunal has considered all those circumstances, it is not possible to say in advance that a particular conclusion, in this case that the EPBC Act decision is relevant, is not open to it.
2. There is nothing within the statutory framework to suggest that a decision of this nature could never be relevant to the various assessments and judgments the Tribunal must make in deciding whether or not to grant a permit.
3. The parties agree that it is not open to the Tribunal to say that because of the EPBC Act decision, ipso facto the subdivision will not adversely affect the habitat values of the wetland. The Tribunal must form its own view on this important issue. Whether it considers the EPBC Act decision has any relevance in forming its own view or deciding what conditions to impose on a permit (if one should be granted) is a matter of judgment for the Tribunal.
4. The relevance of the EPBC Act decision may also depend upon the arguments and submissions put by the various parties. I have not been privy to all these, but it seems that one of the ways in which the permit applicant seeks to rely on the EPBC Act decision is to say that whilst made under a separate legislative regime and for different purposes, it is persuasive when considering the effect of the subdivision on the habitat values of the wetland. This is because it was made by a body expert in making decisions about similar subject matter to one of the issues involved in this case, namely impact of the subdivision on an aspect of the environment.
5. In my view, the weight to be placed on the EPBC Act decision in term of its persuasive character is a matter for the Tribunal dealing with the merits of the case to decide.

1. An application for costs was made by the permit applicant on the basis that it has been unnecessarily disadvantaged by the Landcare Group raising at the last minute during the course of the hearing a question of law of no substance. It was submitted that the question could have been dealt with entirely on the papers. It did not necessitate a hearing with legal representation.
2. Mr Naughton referred to the lack of substance in the question of law. He submitted that the question of law as framed in writing has no tenable basis in law. At the hearing, it then morphed into another question. The applicant was able, and did, deal with the planning merits directly. It was only this ill-conceived question of law that necessitated legal advice and representation at this hearing.
3. These arguments raise grounds set out in section 109(3)(a)(b) and (c) of the Victorian Civil & Administrative Tribunal Act 1998. If the Tribunal considers it is fair, these grounds may displace the normal rule about costs in proceedings before the Tribunal, namely that each party is to bear their own costs.[3]
4. In terms of section 109(3)(a), I am not satisfied that the Landcare Group has conducted the proceeding in a way that unnecessarily disadvantaged the permit applicant.
5. The fact that the question of law was only raised late in the hearing might have been inconvenient to the permit applicant, but that does not mean the Landcare Group was not entitled to raise it. The fact that a question of law was raised is not of itself justification for an award of costs.
6. The Landcare Group indicated at the time when it submitted its question of law in writing that it was suitable for determination on the basis of written submissions. It was the permit applicant, that requested "a further hearing to determine the legal question and to be heard on the matter of costs."[4] As it turned out, a further hearing was convened by the Tribunal to consider matters relating to the merits of the case on the same morning.
7. I do not consider that the Landcare Group has been responsible for prolonging unreasonably the time taken to complete the proceeding within the meaning of section 109(3)(b) of the Victorian Civil & Administrative Tribunal Act 1998. It was the permit applicant who wanted this hearing. A further hearing on the merits of the case was required and therefore there was no additional hearing required attributable solely to this question of law.
8. It was the permit applicant's choice to engage a lawyer to respond to the question of law and appear at the hearing. This alone is not a matter that justifies an award of costs.
9. Finally, although the Landcare Group has not been successful on its question of law, the hearing was useful in clarifying the substantive legal issue it wanted the Tribunal to address - namely, whether the Tribunal could consider at all the EPBC Act decision. This was a somewhat different question to the way in which the written question was initially framed.
10. The Tribunal has held that "untenable" in the context of section 109(3)(c) means something like "so weak as to be unarguable".[5] The Tribunal has also said that simply because a party is unsuccessful does not mean that the unsuccessful party should be required to pay costs because this would amount to "costs following the event" and would compromise the general rule created in section 109(1).[6]
11. The Landcare Group may have been unsuccessful with respect to the legal issue but this should not be considered in isolation from the rest of the case. The permit applicant insisted on a further hearing regarding the legal issue, which was able to be accommodated at the same time as the further hearing on the merits convened by the Tribunal itself to resolve further issues it needed more information about. Ultimately, the permit application has been rejected on its planning merits. In all the circumstances I do not consider that any of the grounds under section 109(3) have been established such that it would be fair to depart from the normal rule that each party is to bear their own costs.

1. My response to the questions of law framed in writing and that emerged at the hearing are as follows:

1. The Tribunal is required to be independently satisfied that the proposed development meets the requirements of the planning scheme, including a consideration of clause 15.09, and that the EPBC Act decision cannot bind the Tribunal to make a decision in a particular way.

1. The Tribunal may consider the EPBC Act decision under section 60(1A)(j) of the Planning and Environment Act 1987 if it considers that the circumstances so require.
2. The application for costs by the permit applicant is refused.

[1] Japan - Australia Migratory Birds Agreement (JAMBA) and China - Australia Migratory Birds Agreement (CAMBA)

[2] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

[3] Section 109(1) Victorian Civil & Administrative Tribunal Act 1998

[4] Letter from Planning and Property Partners dated 6 August 2008.

[5] Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691 at [19]

[6] See Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691 at [5]