Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36 | Case summary

Whether CHMP required; consequences for s 79 failure application where the prescribed time has not run; relevance and admissibility of 'groundwater' issues where water authority has already issued a licence to take and use water.

Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36 | Case summary | Zoe

[23]

Stanley Pastoral Pty Ltd (Stanley Pastoral) has sought to review the purported failure by the responsible authority, Indigo Shire Council (Council), to issue a planning permit to use and develop land for a 'utility installation', as defined in the Indigo Planning Scheme. Specifically, the application seeks to permit Stanley Pastoral to utilise an existing groundwater bore and to develop a water transfer station to transfer water to trucks for transport to an off-site water-bottling plant. The 'failure' application is made under s 79 of the Planning and Environment Act 1987 (P&E Act).
The merits hearing had been due to commence in Melbourne on 1 December 2014 with a time estimate of three days. Shortly before the hearing, the Council's lawyers advised VCAT and the parties that it considered that a Cultural Heritage Management Plan (CHMP) was likely to be required for the proposed activity under the Aboriginal Heritage Act 2006 (AH Act) and the Aboriginal Heritage Regulations 2007 (AH Regulations).
On the first day of the scheduled merits hearing, the CHMP issue was formally raised. Other procedural and legal issues were also raised. In particular, this included issues about VCAT's jurisdiction to consider the use of the groundwater from the bore, or the consequential impact on the availability of water, in circumstances where a licence to take and use water had already been issued by the relevant authority under the Water Act 1989. This issue was also relevant to the admissibility of certain witness evidence on these matters filed by the objector group Stanley Rural Community Inc. (SRCI).
The Tribunal constituted for the merits hearing considered that these issues, in combination, warranted an adjournment to enable all of the issues to be canvassed at a separate hearing. Six questions were thus referred to a preliminary hearing, subsequently listed before me, which I will consider in turn.
The three legally represented parties (Stanley Pastoral, the Council, and SRCI) each filed written outlines of submissions before the preliminary hearing, and their advocates spoke to those submissions at the preliminary hearing. The other objector parties were excused from attendance. The objectors Graham Oke, Andrea Cook & Steven Oke nonetheless also filed a joint written submission, which I have taken into account.

[35]

The regulatory framework and these definitions were discussed at length by Member Naylor and myself in Mainstay Australia Pty Ltd v Mornington Peninsula Shire Council & Ors (Red Dot)[3], including the level of inquiry and standard of proof required by the planning decision maker to satisfy itself whether land had been subject to significant ground disturbance. In Azzure Investment Group Pty Ltd v Mornington Peninsula Shire Council & Ors (Red Dot)[4], I made further comment on a contextual approach that might satisfy the standard of proof for smaller subdivided urban lots in the absence of clear evidence of actual significant ground disturbance across the whole of the land. It is trite to observe that the land here is not a small urban lot, although some of the principles set out in Azzure potentially have a wider application.
None of the parties took issue with the principles outlined in Mainstay or Azzure, and I adopt them here[5]. Without setting out the detail of all of those principles, some that are relevant in this case include the following:
- whether land has been subject to significant ground disturbance, and whether a CHMP is required under the AH Regulations, is essentially a question of fact to be decided on the evidence. The likelihood of there actually being aboriginal cultural heritage on the land is irrelevant to this task.
- the level of inquiry, and information required to satisfy the decision maker, will depend on the circumstances of each case. The standard of proof is on the 'balance of probabilities' - not proof beyond doubt. There must nonetheless be sufficient information, objectively considered, to persuade the decision maker to a reasonable level of satisfaction in a given case that there has been significant ground disturbance.
- the burden of proving significant ground disturbance rests with an applicant, but it is the planning decision maker that must be satisfied with that proof. That satisfaction should not be derived from inexact proofs or indirect inferences, and little weight should be given to a mere assertion by an applicant or landowner.
- even if a contextual approach is appropriate in the absence of clear evidence of actual significant ground disturbance, this approach does not entitle the decision maker to ignore the essential elements of the definition of 'significant ground disturbance' in the AH Regulations. The comparative and contextual information must still reasonably satisfy the decision maker that the topsoil or surface rock layer has been disturbed in the past by machinery in the course of grading, excavating, digging, dredging or deep ripping.

[37]

Prior to the Council's lawyers raising the CHMP issue in late November 2014, it appears that no material inquiry had previously been undertaken. I will comment on the process later, which reflects poorly on both the applicant and the Council.
The Council now contends that a CHMP is required under the AH Regulations. It says that Stanley Pastoral has not provided sufficient proof, having regard to the Mainstay principles, to satisfy it (or VCAT) that significant ground disturbance has occurred across all of the relevant land. The Council maintained this position even after Stanley Pastoral retained Ms Dugay-Grist of Grist Archaeology to undertake an assessment and report in December 2014, which indicated a contrary opinion. Ms Dugay-Grist was therefore called to give evidence.
Ms Dugay-Grist's opinion was that all of the land in the activity area had been the subject of significant ground disturbance, and was thus exempt from being an area of cultural heritage sensitivity. Her opinion was based on bore samples, aerial photographs, and anecdotal information from the previous landowner.
Through the Council's cross-examination of Ms Dugay-Grist, and my questioning, a number of deficiencies in her assessment and report became apparent. These include the following:
- Ms Dugay-Grist has not delineated, even in a cursory way, the 200 metres from the waterway that identifies the actual 'area of cultural heritage sensitivity' within which her assessment was required - i.e. to determine whether all of that area of cultural heritage sensitivity had been subject to significant ground disturbance. Her assessment essentially focussed on the one-hectare works area. That works area appears to fall wholly within the 200 metres, although even this is not clear. In any event, the works area does not comprise all of the area of cultural heritage sensitivity within the broader activity area. The area of inquiry in her assessment is therefore unclear and insufficient.
- Ms Dugay-Grist's opinion is equivocal. At p 13 of her report, she expresses the view that even this 'works area' is unlikely to be an area of cultural heritage sensitivity because of the nature and extent of previous disturbance. (Later on the same page, she expresses an opinion that the 'activity area' has been subject to significant ground disturbance, although there is no evidence of assessment beyond the works area).
- Ms Dugay-Grist's report indicates that the prior activities relied upon for her opinion include initial vegetation clearance, the cultivation of potatoes and apples for approximately 70 years, the installation of a bore, and 'deep ripping of the ground to a depth of approximately 60 cm'. There is no real evidence about whether the first three items occurred in a manner that meets the definition of 'significant ground disturbance' (e.g. whether by machinery, or through something other than conventional ploughing).
- Although there is mention of deep ripping, the report refers only to ripping to a depth of 'approximately 60 cms'. This does not clearly satisfy the definition of 'deep ripping' to a depth of '60 cms or more'.
- At the hearing it became apparent that, when Ms Dugay-Grist formed these views and signed her report, she had not herself then visited the site. She relied upon work undertaken by a staff member, including testing via a single auger (bore sample) and a discussion by that staff member with the previous landowner. This is a major omission in Ms Dugay-Grist's report, as the report clearly infers her participation in these activities, and there is no mention of the staff member involvement.
- The report is also unclear about the depth of the single auger sample. The photo of the auger and sample indicate a relatively small sample. The single auger 'revealed an underlying profile of reddish brown silty loam to around 600 mm depth, containing clay clumps and shale rock'. This does not of itself evidence deep ripping to '60 cms or more'. Although there is a reference to a disturbed subsurface 'with the underlying clay mixed through overlying soils', there is no evidence about the common depth of topsoil on this land or in this area. If the topsoil on the land is shallow, the intermingled clay could occur well within 60 cms of the surface. Disturbance of shallow topsoil could reflect 'significant ground disturbance' by machinery in the course of grading, excavating, digging etc, as these do not have a depth requirement in the regulatory definition. But these activities are not mentioned or relied upon here. To the extent deep ripping is relied upon as the cause of the significant ground disturbance across all of the relevant land, it must be through ploughing to a depth of 60 cms or more by a ripper or subsoil cultivation tool. A single auger excavation does not prove this, even on a balance of probabilities.
- The evidence relies upon other anecdotal and historical investigations. This is a sensible approach. The aerial photographs show features consistent with general farming across much of the land, including remnant rows from apple tree cultivation. However, these do not provide evidence of deep ripping across all of the relevant land, albeit that they may supplement other evidence.
- The report refers to anecdotal information gained from the former owner of the property, who had apparently stated that the original vegetation had been cleared prior to his family's 75 year ownership, and that 'the original ground surface was also subjected to deep ripping prior to the cultivation of both potatoes and apples over the years'. Ms Dugay-Grist conceded that these comments had been made to her staff member. There is no evidence before me about the nature and extent of the so-called deep ripping - what it comprised, using what machinery, over what area, undertaken when and by whom, whether the former owner had himself undertaken the deep ripping or whether it was an oral account of the past actions of others. Although VCAT is not strictly bound by the rules of evidence, there is an element of hearsay upon hearsay in this material. It is also inconclusive. I have said earlier that little weight should be given to the mere assertions of a landowner. Here, moreover, they are second or third hand assertions, and untested.
- Ms Dugay-Grist indicated an opinion that the disturbance was 'consistent with' deep ripping. However, she seemed unsure about different types of cultivation tools and their cultivation depths, and whether the disturbance could equally be consistent with disturbance by a conventional plough (or something other than deep ripping with a ripper or subsoil cultivation tool). This was an issue raised in Mainstay. A cursory internet review suggests ploughing for potato cultivation is commonly to a depth of only 30 cms, and that some ordinary ploughs (other than rippers) can be used to a depth of more than 60 cms. I do not rely upon this. It simply indicates that a more forensic investigation was warranted here in the anecdotal evidence obtained, or (if possible) in the auger analysis.
- Ms Dugay-Grist did visit the site shortly before giving evidence. She indicated that three additional augers were excavated, but of the same type, and within the same works area. Unfortunately, but importantly, no auger was excavated in the area of cultural heritage sensitivity outside of the works area. Therefore, even if the auger samples do provide some support for 'significant ground disturbance' on a small part of the land, they occurred over an insufficient area to satisfy a decision maker that all of the area of cultural heritage sensitivity has been subject to such disturbance.
Stanley Pastoral relied upon Ms Dugay-Grist's evidence, without more. I am minded of the comment in Mainstay that, in ascertaining whether a decision maker is satisfied that significant ground disturbance has occurred across an area, 'reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences[6]'. There is too much of that here. There is also the appearance of very limited evidence being used to support a pre-determined conclusion, rather than the evidence being fairly assessed for what it does (or doesn't) show.
I am conscious that Ms Dugay-Grist may have been called upon to undertake an urgent assessment with a limited brief at a busy time of year, given the timelines involved. Moreover, as mentioned in Mainstay, a forensic assessment of whether there has been significant ground disturbance by deep ripping will not always be something that a cultural heritage adviser is best equipped to assess, or to address alone in isolation from other expertise or lines of inquiry. In any event, the level of assessment here does not sufficiently address the key questions raised by the regulatory framework with sufficient specificity, nor follow the principles set out in Mainstay or Azzure. Ultimately, the assessment does not do either the witness or her client any favours. It does not provide a sufficient proof on the balance of probabilities, on a disputed threshold matter in the proceeding.
Given the deficiencies, generalities, and equivocation in Ms Dugay-Grist's assessment, I do not consider that there is sufficient information, objectively considered, to support her conclusion or to persuade me to a reasonable level of satisfaction in this case that there has been significant ground disturbance across the whole of the area of cultural heritage sensitivity within the relevant activity area.
This is perhaps disappointing, given the consequences for the proceeding. An even slightly more sophisticated investigation and report may possibly have lead to a different outcome. However, to accept the material presented in this case as sufficient proof would send a poor message to permit applicants, Councils, and those involved in aboriginal heritage, about what is an acceptable level of response.

[41]

When making its permit application to the Council in 2013, a representative of Stanley Pastoral had simply provided a pro forma declaration that no CHMP was required. It appears that this was done without any supporting information. It was not evident from the declaration form that the proposed development and use was a high impact activity, or that part of the land was within 200 metres of a defined waterway, or that 'significant ground disturbance' was relied upon, or that any of these matters had even been considered. Stanley Pastoral's advocate submitted that it was clear that relevant enquiries had been made. In the absence of other evidence, which was not provided, this is not at all 'clear'.
The Council appears to have relied upon this declaration, without material investigation, and without forming a view about whether it was satisfied with its accuracy, or being separately satisfied that no CHMP was required for the purposes of s 52 of the AH Act.
I am aware that many Councils now rely upon declarations from applicants about whether a CHMP is required. VCAT now commonly receives copies of these declarations, where relevant, as part of the PNPE2 practice note material provided by Councils if an application for review is lodged.
Many of the declaration forms are available on Council websites. All differ slightly in their wording, and some are better than others. Most are of a one-page 'tick the box' variety, with an applicant required to declare if a CHMP is or is not required. If the applicant declares that a CHMP is not required, some forms require the applicant to attach relevant proofs, or to attach a copy of the self-assessment undertaken through the AAV website[7]. This at least gives the Council an opportunity to satisfy itself about the matter. Unfortunately, the form provided by Indigo Council and used by the applicant in this case is not one of the 'better' forms. It does not require any additional information, and it appears none was volunteered here. Moreover, for almost all the declaration forms currently used in practice, they are of little assistance in those matters that come before VCAT on review, where VCAT becomes the decision maker.
There is little doubt that the requirements of the AH Regulations have added to the complexity of the planning permit process, and made it more onerous for permit applicants and Councils. However, the use of a declaration form that a CHMP is not required, without more, appears to be increasingly seen as an easy way out. At worst, without more, it provides a temptation to unscrupulous applicants to avoid their obligations, or a temptation to under-resourced Councils to abrogate their responsibilities to be properly satisfied. At best, as I suspect is more the case here, it can still lead to unchecked errors or inadvertence that can have severe consequences if the matter is not addressed properly at the Council level, and only surfaces as an issue in a VCAT review.
In both Mainstay (with Member Naylor) and in Azzure, in 2009, I suggested some regulatory clarification to address some of the practical difficulties for permit applicants and Councils highlighted in those decisions - in particular about proof of significant ground disturbance - whilst still giving effect to the purposes and intent of the AH Act and the important role of CHMPs. Despite an on-going review of the Act, that has not yet occurred. To those matters, I would add the issue of the use of declaration forms that a CHMP is not required - what they ought to contain, and the extent to which a Council can rely upon them. Despite the AH Act and AH Regulations having now been operational for several years, issues about whether a CHMP is required (rather than the actual cultural heritage issues raised in a CHMP, if required) are unfortunately still a confusing and material cause of delay in planning applications coming before VCAT.
I have directed that a copy of this decision be provided to the Office of Aboriginal Affairs Victoria. I do so in the hope that it might facilitate broader industry discussion about a more consistent, but not unduly onerous, approach about when and how CHMP requirements should be addressed by permit applicants and Councils at the permit application stage, and in circumstances where a matter comes before VCAT on review. In saying this, I do not suggest that appropriately worded pro forma declarations should never be used, but they should seemingly be an adjunct to the process rather than an end in itself. Some simplification would appear to be warranted, or at least the obligations clarified.

[43]

The actual question posed in the order of 1 December 2014 was whether, in the event that a CHMP is required, this proceeding can continue, having regard to the decisions made in Lynbrook Village Developments Pty Ltd v Casey CC & Ors (Red Dot) [8] and Community Villages Australia Pty Ltd v Mornington Peninsula SC (Red Dot)[9].
These two decisions took seemingly different views about whether Clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) could be used as a mechanism to continue an application made under s 79 of the P&E Act (i.e. a 'failure' application), in circumstances when a CHMP is required. Clause 62 of Schedule 1 of the VCAT Act provides:
1. The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.
Rather than debate the nuances of the issue, the parties collectively requested me to apply the reasoning in Community Villages, to use Clause 62 to disregard any non-compliance that had led to the current scenario, and to simply adjourn the existing s 79 proceeding pending the preparation and approval of a CHMP. It was suggested that, to dismiss the application for review would simply lead to a fresh application being lodged after a CHMP was prepared and approved, with additional cost and delay to the parties in getting back to essentially the same position.
With respect, I do not see the issue so simply. In particular:
- the issue potentially goes to jurisdiction. It is the 'first duty' of a court or tribunal to satisfy itself about its jurisdiction, and jurisdiction cannot be conferred by consent, just because the parties agree on a particular course that is expedient to them. I am therefore placed in a position of having to consider jurisdiction in the absence of detailed submissions from some parties on some aspects of that debate.
- the facts here differ from those in Community Villages, to the extent that decision may not be applicable even if it was correctly decided on its facts. Importantly, in Community Villages, there was already an approved CHMP. Here, there is not.
- here, there is a scenario that is unique to applications under s 79 of the P&E Act, in circumstances where a CHMP is required and time has not started to run. Other decisions about the breadth of the power in Clause 62, or its use in other circumstances, do not necessarily apply.
- even if Clause 62 can apply, the power is discretionary. I would need to be satisfied that it is in the interests of justice to disregard a relevant identified failure to comply.
As will be seen, I do not agree entirely with the reasoning in either Lynbrook Village or Community Villages even though the outcomes in both cases may have been justifiable on their individual facts, and the application of my reasoning would have likely lead to the same outcome in each case.

[54]

In Lynbrook Village, Senior Member Rickards had determined that there was a conflict between s 52(6) and Clause 62, and that the later and very specific provision of the AH Act overrode the more general VCAT power in Clause 62. In context, s 52(6) appears to be designed to protect the primacy of the obligation in s 52(1) (i.e. a permit cannot be granted without an approved CHMP in place). It may well be that Clause 62 cannot not be used in a manner that overrides that obligation under s 52(1).
However, Senior Member Rickards' decision in Lynbrook Village is based on a view that s 52(6) has the effect of making the time period in s 52(4) (rather than the primary obligation in s 52(1)) immutable in a manner that could never be dealt with under Clause 62. I am less convinced by that proposition, in circumstances where the actual failure sought to be dealt with under Clause 62 arises more directly under s 79 of the P&E Act rather than s 52(4) of the AH Act. Section 52(4) simply creates the scenario that time has not started to run. It provides the basis for why there may have been a non-compliance with s 79 of the P&E Act. But it is the jurisdictional consequence of time not having started to run under s 79 that is germane to the outcome, rather than there being a conflict per se between s 52(4) and Clause 62.
Having said that, the effect of that jurisdictional consequence that I have identified would have lead to the same outcome in Lynbrook Village, but for slightly different reasons.
In Community Villages, Member Code disagreed with the decision in Lynbrook Village. He found that s 52(4) of the AH Act and Clause 62 covered different fields of operation, and were not in direct conflict. In other respects, the case before Member Code was quite different, as his decision reveals.
Unlike Lynbrook Village and the case before me, Community Villages was not a case where there was no CHMP, and where time had not started to run. There was an approved CHMP. It had been provided to the Council. Time had stated to run. What had transpired was that a full 60 days had not run from the date of provision of the CHMP to the date of lodgement of the s 79 application. The s 79 application was premature, rather than made in circumstances where time had not started to run at all. Indeed, by the time the issue was revealed at VCAT, more than 60 days had by then elapsed since the CHMP had been provided. Whilst I am still a little dubious about the use of Clause 62 as the best mechanism to remedy such a situation, Member Code clearly tied his reasoning to a view that the power in Clause 62 could be used to clear obstacles that had been wholly or substantially cured by the time the matter reaches VCAT[10]. I note in passing that Member Code had been called in to determine a question of law in a proceeding constituted with non-legal members, and gave an oral decision on the run. It is not clear that other options were raised. In the circumstances of the matter before him, he could have used other powers under the VCAT Act[11], without using Clause 62, to produce the same outcome.
Given the very different scenario in Community Villages, I am not convinced it is applicable in the manner contended by the parties before me. The factual scenario before me is more similar to that in Lynbrook Village. Here, there is no approved CHMP, and time has not even started to run. VCAT lacks jurisdiction to entertain the application for review under s 79 of the P&E Act. The application is not merely premature. The circumstances that give rise the relevant right of review have not yet arisen.
In my view, it is very doubtful that Clause 62 can be used to remedy this jurisdictional defect. My reasons are essentially as follows:
- I accept as a starting point the many cases that state that the power in Clause 62 is 'very broad', and 'not expressed to be limited to overcoming technical or procedural non-compliances'. These cases include the decisions of the court in Rumpf v Mornington Peninsula Shire Council[12] and Harvey v Mutsaers[13].
- In all of the significant reported decisions about Clause 62[14], including Rumpf, Harvey, and VCAT decisions such as Schneider v Boroondara CC[15] and Waraglen Developments Pty Ltd v Maroondah CC (Red Dot)[16], Clause 62 has been used when there is already a reviewable 'decision', or a clear failure to decide where a prescribed time has run, that provides VCAT with its underlying jurisdiction. This includes reviews of decisions that are in themselves invalid or beyond power, but that are nonetheless reviewable 'decisions' that vest VCAT with its jurisdiction, having regard to the broad definition of 'decision' in s 4 of the VCAT Act. No such jurisdiction exists here. There was no Council 'decision', valid or not[17]. There is no failure where a prescribed time has run. There is no underlying basis upon which any jurisdiction has yet been conferred upon VCAT in this matter.
- It has been suggested that the power in Clause 62 may be exercised to confer jurisdiction[18]. However, the decisions commonly cited for this proposition do not bear this out, or at least not in a manner relevant to the present case. In decisions such as Rumpf and Waraglen, Clause 62 was used to 'confer' jurisdiction in the sense of disregarding an antecedent non-compliance that would have otherwise rendered the reviewable decision void or invalid. This takes the matter no further than the outcome provided by s 4 of the VCAT Act. In these cases, there was still a 'decision' (albeit only a purported or invalid decision) to found an initial jurisdiction for a proceeding, within which the power in Clause 62 could then be exercised to disregard the antecedent non-compliance. Again, that circumstance does not exist here.
- In Harvey, the court at first instance noted that there was 'no question of VCAT conferring jurisdiction on itself' through its use of Clause 62 in that proceeding, as there was still a purported or invalid decision under s 4, and VCAT was 'properly seized of jurisdiction'[19]. Here, there is no decision through which VCAT has become seized of any jurisdiction.
- Although a 'failure to decide' is also a deemed decision under s 4(2)(d) of the VCAT Act, there has been no such failure here because of s 52(4) of the AH Act. Moreover, that provision (i.e. s 4(2)(d)) has been considered not to apply to a failure giving rise to a specific separate right of review such as an application under s 79 of the P&E Act.
There does not appear to me to be any authority for the proposition that Clause 62 can be used as a mechanism to vest jurisdiction in VCAT where none exists at all. Clause 62 gives VCAT jurisdiction to determine a proceeding despite a failure to comply with an enactment, but it seems that there still needs to be an underling basis for jurisdiction for that proceeding to start with. VCAT is a creature of statute. Despite the 'very broad' power in Clause 62, it cannot be an unlimited power to give the tribunal any level of jurisdiction in any planning matter.
I return to the situation here. VCAT lacks jurisdiction to entertain the application for review under s 79 of the P&E Act. Time has not even started to run. The application is not merely premature. The circumstances that give rise the relevant right of review have not yet arisen. Indeed, Clause 62 refers to the clause being a mechanism to deal with a "failure to comply with a planning enactment...". Quite literally, when time hasn't even started to run under s 79, there is no obvious 'failure to comply' with the P&E Act. No opportunity has yet arisen for there to be a non-compliance.
It would seem curious to me if Clause 62 was intended to be used to vest jurisdiction in such a scenario. Taken to its logical extreme, if that were the case, an application for review could conceivably be lodged without a permit applicant even having applied for a permit, with even that 'failure' disregarded!
It follows that, in my view, Clause 62 cannot be used to vest jurisdiction for the purported s 79 application in this proceeding. The application for review should be dismissed for want of jurisdiction and on the basis that it is misconceived.

[56]

I indicated earlier that it was 'doubtful' that the jurisdictional defect in this case could be remedied through the use of Clause 62. I say this because, despite my finding that it cannot be used here, I acknowledge some uncertainty in the case law, and in the way different provisions in the AH Act, P&E Act and VCAT Act have been interpreted together or separately. This specific issue has not been resolved by the courts. In one sense, apart from having a duty to satisfy myself about jurisdiction, I do not need to finally decide the issue. That is because, even if I have jurisdiction and Clause 62 is available, I would not exercise the discretion it provides to disregard the relevant failure in this case.
If Clause 62 applies, VCAT would have jurisdiction to determine the proceeding despite a failure to comply with the planning enactment and, in doing so "... may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so".
Stanley Pastoral suggested that the use of Clause 62 would avoid the costs and delay of a fresh application, after a CHMP was prepared and approved, to get the parties back to essentially the same position.
I agree that it will often be in the 'interests of justice' to avoid additional costs and delay to parties, but I am not convinced that the costs and delay here will be significant. Moreover, the 'interests of justice' is a concept that connotes more than mere expediency for the parties, and a discretion should not be exercised in the interests of justice automatically or without proper cause. Although undefined, the 'interests of justice' may in appropriate cases involve a consideration of matters such as:
- whether there is an adequate explanation or excuse for what has occurred;
- the conduct of particular parties;
- the potential prejudice to particular parties;
- the nature and merits of the substantive application, and whether other circumstances have changed so that, but for the use of Clause 62, a party may lose the benefit of a pre-existing right or privilege in relation to that application;
- the nature of the particular failure or non-compliance sought to be disregarded;
- the role and importance within the regulatory or legal framework of the particular provision or requirement for which there has been a non-compliance, and any established practices in relation to it; and
- overall fairness and equity.
This list is not intended to be exhaustive and some of the factors overlap.
Here, I consider that the conduct of the permit applicant and the Council, in not undertaking a proper assessment of whether a CHMP was required, should not be lightly disregarded. The conduct here seems to arise from something more than mere inadvertence.
Secondly, I do not consider that the permit applicant (or other parties) will suffer any real prejudice through additional costs or delay. The effect of my decision means that the s 79 application is dismissed in a manner as if it had not been made. There is still a live permit application to be decided, and the permit applicant is not obliged to re-apply for a fresh permit. The objections lodged by objectors with the Council still stand. They do not have to be re-submitted. The Council still has to make its decision, once an approved CHMP is provided. The proper process will simply pick up from where it had stopped. Alternatively, it is possible that the CHMP may reveal aboriginal heritage issues that lead to an amendment to the application being desirable or necessary. That process would then need to run its course.
Moreover, had I been minded to apply Clause 62, and allow the current proceeding to continue, I would still have thought it appropriate to allow time for the Council to 'reconsider' its position once it had an approved CHMP, effectively requiring the matter to be re-decided by the Council before a final hearing. There is therefore unlikely to be a material further delay beyond the delay that has already occurred, or would otherwise still arise. The only real cost is that, if the Council refuses the application after an approved CHMP is provided, or fails to decide after 60 days has elapsed after an approved CHMP is provided, the permit applicant will need to lodge a fresh application to VCAT and pay a new filing fee. Objectors wishing to participate in a future VCAT proceeding will need to file (or re-file) their statements of grounds. In the overall scheme of things, these are relatively minor consequences.
There are also issues of policy, certainty and consistency. The inter-relationship of s 52 of the AH Act and the planning permit process should not be lightly disregarded. In my view, it would not ordinarily be in the interests of justice, just of itself and without some compelling circumstance, to disregard a non-compliance with s 79 of the P&E Act in a manner that avoids the clear intent of s 52(4) of the AH Act (i.e. that time does not start to run).
Furthermore, s 79 of the P&E Act provides a special specific right of review that is based on a prescribed time. It has been held in many cases that time limits relating to applications for review are important to the certainty and consistency of the planning and environmental permit processes[21]. There may perhaps be an argument for using Clause 62 to cure a s 79 application that is a few days premature (about which I express no concluded view). However, it would be unsettling to common practice, and to the certainty of the planning process, if VCAT used Clause 62 to facilitate the conferral of jurisdiction in a 'failure' application under s 79 of the P&E Act when the prescribed time of 60 days had not even started to run. To my mind, if the power to use Clause 62 in such a circumstance even exists, something exceptional would be required in the 'interests of justice' to warrant its use in that circumstance. I do not consider that the facts and circumstances of this case warrant such a departure from accepted practice. Indeed, allowing the s 79 application to continue in such a circumstance would be unsettling to established practices.
It follows that, even if I have jurisdiction and Clause 62 is available, I would not exercise the discretion it provides to disregard the failure to comply with the prescribed time for the purpose of s 79 of the P&E Act in this case. It therefore follows that, under this scenario, even if I have jurisdiction, the application for review should still be dismissed for want of jurisdiction and on the basis that it is misconceived.

[59]

I was asked to determine whether VCAT had jurisdiction to consider the use of the water from the proposed bore in circumstances where a licence to take and use water had already been issued by the relevant authority under the Water Act 1989. A similar issue arose in relation to the relevance of the consequential impact of the use of that water on the availability of water in the area.
Stanley Pastoral sought a finding that these issues were not within VCAT's jurisdiction having regard to the relevant issues to be decided, and sought that I rule as inadmissible certain expert witness evidence on these matters that had been filed by SRCI.
Stanley Pastoral relied on a string of VCAT decisions stemming from Learmonth Springs Pty Ltd v Yarra Ranges Shire Council[22]. The decision in Learmonth Springs is often cited for the principle that potential impacts on water supply are matters for the relevant water authority to consider separately under the Water Act 1989 as part of its regulatory regime, and that it is outside of VCAT's jurisdiction to consider those matters in a planning application for a development of land that involves water extraction, where the water authority has already issued a licence to take and use the water under the Water Act 1989.
It is occasionally the case that a VCAT decision becomes so often cited for a particular principle that no-one actually reflects upon the original decision and the facts and circumstances on which it is based, or what VCAT actually said, or whether the circumstances are applicable or have changed. Learmonth Springs certainly commented on the water authority's important role, its regulatory function in the issue of licences to take and use water, and the fact that no planning permit was required there for the groundwater extraction. But it said nothing about VCAT's jurisdiction, and made no emphatic statement that the issue of water extraction or the consequences of groundwater use could never be a relevant planning consideration. In particular, it said nothing about an application for the development and use of a utility installation for bulk water extraction that facilitates the off-site use of water. I respectfully disagree with other decisions that have applied Learmonth Springs in a broader way to decline jurisdiction.
The issue is not so much about jurisdiction, as about the relevance of groundwater extraction in the context of a particular planning application, and having regard to the particular planning controls that apply.
In this regard, I generally prefer[23] the submissions of the Council and SRCI over those of Stanley Pastoral. I do not propose to deal with their very detailed submissions at length, but in particular:
- Here, the permit application relates to the development and use of the land for a utility installation, rather than just development as in Learmonth Springs. A utility installation is a Section 2 use in the Farming Zone. The relevant part of the application is for a '"Change of Use" of an existing groundwater bore as a Utility Installation (Bulk Water extraction) and the development of a Water Transfer Station adjacent to the bore'. Some 'use' issues are clearly called up by the requirement for a 'use' permit (subject to relevance), at least insofar as the decision guidelines in the Farming Zone are concerned.
- In raising groundwater impacts, the Council and SRCI are not contesting the actual decision of Goulburn Murray Water to issue the licence to take and use water, or its subsequent variation by the Minister[24]. Rather they are responding to relevant planning provisions that allow consideration of potential impacts to groundwater from a relevant planning proposal[25].
- Here, a licence was originally issued to take and use water on the land for agricultural purposes, but it was subsequently varied to allow the off-site use of the water (which will facilitate its use at an external bottling plant). That at least has potential implications for groundwater and sustainable agriculture in an area of high quality agriculture[26].
- In this regard, the impacts of the use of the bore as part of the utility installation are at least arguably relevant to the decision guidelines in the Farming Zone that pertain to agricultural issues and the impact of non-agricultural use and development, and to environmental issues called up in the decision guidelines. The impacts of the development are at least arguably relevant to the purposes and decision guidelines of the specific Environmental Significance Overlay that applies to the land, and which refers to the sustainability and protection of high quality agricultural land.
- Because there are potentially relevant decision guidelines in both the zone and overlay controls that pertain to this permit application, the raising of relevant groundwater impacts does not offend the National Trust principle[27]; namely that a decision maker cannot stray beyond the scope of the discretion given to it under the enabling legislation and regulatory framework.
The Council and SRCI both reminded me of the decision in Victorian National Parks Association Inc. and Mineral Policy Institute v Iluka Resources Ltd[28], where the then Justice Morris stated:

[61]

In Hasan v Moreland City Council[29], Justice Morris also referred to other matters, including water, which may come within the 'broad sweep' of the P&E Act. There will often be an overlap in the potential issues of relevance that arise in the complementary regulatory frameworks that apply to the development and use of land, albeit that separate discretions are being exercised according to particular regulatory provisions. It becomes a question of the weight and relevance to attach to particular matters having regard to the particular discretion being exercised.
In this regard, I also note that:
- Goulburn Murray Water's licence to take and use water clearly states on its face that the licence does not remove the need for any other authorisations and permissions to be obtained under other legislation.
- Goulburn Murray Water is a referral authority under the Indigo Planning Scheme in relation to the planning permit application that forms the subject matter of this proceeding, and (although it has not attended any hearings) it is entitled to participate in the proceeding in that capacity[30].
I also note that Stanley Pastoral included information about groundwater in its planning application, and has filed expert evidence on groundwater impacts in the VCAT proceeding. It has, to an extent, itself made the issue relevant.
That said, town planning is not a panacea for all perceived community concerns, nor is planning decision-making a forum for addressing all such concerns[31]. Here, a specialist body such as Goulburn Murray Water has made a decision to issue a licence to take and use water. That body administers a Water Management Plan prepared for the Upper Ovens River Water Supply Protection Area under the Water Act 1989. The plan deals with water entitlements, including sustainable agricultural, and striking a balance between competing interests over groundwater extraction and use. In issuing a licence, Goulburn Murray Water would presumably have taken into account many of the issues that the Council and objectors seek to agitate in this proceeding. This does not, of itself, remove the potential relevance of impacts on groundwater as a planning consideration if it is otherwise called into the sphere of relevance by the relevant planning controls and decision guidelines. But the licence issued by Goulburn Murray Water, and the management plan, are likely to be highly relevant to any decision made by VCAT in relation to groundwater impacts in a planning context.
Having regard to the comments of Justice Morris in Iluka above, it may be that VCAT, after considering all relevant issues, chooses not to 'enter the territory covered by the specific legislation'. Equally, having regard to the decision in Iluka, and in the circumstances of the particular application, planning controls, and decision guidelines before me, I do not think it could be said that the impacts on groundwater could never be relevant, nor that the Goulburn Murray Water licence exclusively 'covers the field' for all planning purposes, or that VCAT has no jurisdiction to consider the matter.
I have however carefully referred above to 'potential' implications and 'arguable' relevance. SRCI may face a high bar in convincing VCAT that great weight ought not to be given to the Goulburn Murray Water licence in considering any overlapping planning considerations, and cannot expect to do so through generalised assertions or limited evidence. Lest it be thought otherwise, whilst the Council and objectors have raised groundwater issues that may arguably be relevant to the planning decision to be made, it seems to me that some of the material upon which it relies will likely be of limited relevance. The proceeding is not a de facto review of Goulburn Murray Water's decision to issue the licence to take and use water. It is the exercise of a quite separate discretion under the P&E Act. It relates to a permit application to use and develop land as a utility installation, rather than specifically to use water. The use of the groundwater water is not automatically relevant in a planning context and, to be relevant, it must arise directly from the permission sought having regard to the relevant planning controls and decision guidelines. Ultimately, the relevance and weight that VCAT places on all of this material is a matter for the members constituted to hear the merits of the application. It may be that there are some specific aspects of the objectors' submissions and evidence that the VCAT members find wholly irrelevant, or of very limited relevance.

[62]

It follows from the above that I would not have struck out the proposed expert evidence of Dr Dahlhaus, concerning potential groundwater impacts, albeit that there are some aspects of his evidence that may stray from what is directly relevant to the planning decision to be made.
It will occasionally be appropriate for separate interlocutory proceedings before a legal member to determine the relevance or admissibility of particular grounds upon which a party relies - for example, having regard to the so-called 'National Trust principle', or where available grounds or issues are confined by the enabling enactment or regulatory framework.
However, it is difficult for a member not hearing the merits, and not seized of all of the material, submissions and evidence, and the nuances of a particular case, to make rulings about what may or may not be admissible by way of expert evidence. Decisions about the admissibility, relevance and weight to attach to particular evidence within such grounds are commonly best left to the member(s) constituted to hear the merits, and dealt with through cross-examination or submissions. VCAT is not strictly bound by the rules of evidence. Sometimes, it will be necessary to hear evidence of potentially marginal relevance before an informed decision can be made about what parts (if any) are relevant and what weight ought to attach to it.
In a 'specialist' list such as the Planning and Environment List at VCAT, members (both legal and non-legal) are generally assigned to a hearing based on their experience and expertise having regard to the subject matter of the proceeding, and are well placed to make these decisions. Having an interlocutory fight about this before a different member will not generally be productive. I suspect it took longer for the parties to argue before me their respective issues about the admissibility of Dr Dahlhaus' evidence than it would have taken to hear that evidence.
Whilst I could conceivably indicate specific parts of Dr Dahlhaus' report that appear to lack relevance, no party suggested that I should do so. The arguments were implicitly put on an 'all or nothing' basis. The relevance of particular aspects of Dr Dahlhaus' evidence would therefore be better addressed through cross-examination or submission at a hearing and, as I have said, are ultimately matters for determination by the tribunal members constituted to hear the merits.
The situation with Dr McDonald is somewhat different. SRCI has filed a purported expert witness statement by Dr McDonald, but Dr McDonald is also an objector who has filed a statement of grounds and is a separate party in the proceeding. He cannot be both. He will need to make a choice. If, in a future proceeding, he chooses to be an expert witness for SCRI rather than an objector party, the fact of his previous objection means that he cannot be considered to be an independent expert nor able to comply with an expert witness' paramount duty to VCAT. To the extent any of his evidence is considered expert and relevant, it will be weighted accordingly.
Putting this to one side, Stanley Pastoral suggested that the evidence of Dr McDonald was "beyond the jurisdiction of the Tribunal as it also seeks to deal with ... climate change", because climate change "is not a matter the planning scheme deals with directly". The extent to which climate change is relevant in any particular application will again depend on its circumstances. Given what I have said about Dr McDonald not being an independent expert, I do not need to decide the particular relevance of his material. However, I think it is drawing a long bow for a permit applicant to effectively suggest that climate change is not a matter within VCAT's planning jurisdiction at all. Quite apart from relevant parts of the state and local planning policy frameworks, I think that the objectives of planning in s 4 of the P&E Act, combined with matters that must be considered under s 60(1)(e) of the P&E Act, and perhaps also combined with the preamble to the Climate Change Act 2010, put that simplistic contention to rest.

[63]

The original hearing had been listed for final hearing in Melbourne. This listing decision was criticised by both the Council and some of the objectors, who wanted the hearing listed in Wangaratta. I note in passing that some of this criticism was conducted through the media rather than through a practice day request on notice to other parties. However, following the vacating of the 1 December hearing, the Council and some objectors did request that this matter be formally considered at the preliminary hearing with a view to having the reconvened hearing listed in Wangaratta. The request was opposed by Stanley Pastoral.
Most matters in VCAT's Planning and Environment List are heard in Melbourne. There are a variety of reasons for this. VCAT nonetheless attempts to list planning matters in regional locations when necessary or desirable to promote proper access to the justice system and/or to facilitate participation in it. There are a number of competing considerations when a decision is made to list a matter at a regional hearing venue. These include:
- whether the Council has requested a regional hearing in its practice note material, or whether any other party has requested a regional hearing;
- the nature of the proceeding, including whether it relates to a broad matter of public or community interest or controversy;
- the estimated length of hearing, and the length of time within that hearing in which 'regional' participation is likely to occur;
- the availability of a suitable regional hearing venue with appropriate facilities (including recording facilities, administrative support and security, and public facilities). In this regard, matters in the Planning and Environment List are generally unable to be heard on Council premises, because the Council will be a party in the proceeding;
- the proximity of the regional hearing venue to the relevant land, and to the parties;
- the availability of the regional hearing venue to hear the matter within a reasonable listing time frame, with some listing flexibility, and on a basis that would not unreasonably delay the time of the hearing beyond when it would otherwise be able to be heard in Melbourne;
- the number of parties and where they normally live and work;
- whether parties are represented and, if so, where the advocates are based;
- the number of expert witnesses and where they are based,
- the cost and convenience for the parties, or particular parties;
- whether any particular party will be denied access to the justice system or reasonable participation in the hearing, depending on the choice of venue. In the case of third party objectors in a planning matter, this requires VCAT to consider the desirability of providing an opportunity for the broadest possible participation by those objectors who are actually parties in the proceeding, but having regard to the numbers who would actually attend and participate in the hearing if it is located in a regional venue or in Melbourne;
- whether there are other options (telephone, video-conferencing, circulation of written material) to facilitate participation for some or all of the hearing for those unable to travel to an alternative venue;
- the cost to VCAT including, if a large cost is involved, whether this would impact on VCAT's ability to hear other cases within the same listing period;
- whether a site inspection is required, and whether it would desirably be an accompanied inspection in the presence of the parties; and
- overall consistency and fairness.
Some regions are better served for VCAT's Planning and Environment List hearings than others. That is a matter that perhaps needs to be addressed over time by VCAT, Court Services Victoria, and the various tiers of government. But even where there is access to a regional hearing venue, a balancing of the competing considerations above will often still lead to a decision that the preferable and most convenient hearing venue is in Melbourne.
Here, the three main parties (Stanley Pastoral, the Council, and SRCI) are all legally represented by Melbourne-based lawyers and/or advocates. Some of the individual third-party objectors are also members of SRCI. The expert witnesses are primarily Melbourne-based. SRCI's expert witness Dr Dahlhaus is from Ballarat. The subject land is at Stanley, where there are no hearing facilities. The nearest hearing venues are at Wangaratta and Wodonga, which would still require interested participants to make a conscious decision to travel 40 to 50 kms to the hearing. Wangaratta Court is generally unavailable to VCAT's Planning and Environment List at present, given the needs of its primary users and timetabling difficulties in accommodating multi-day VCAT hearings.
For a variety of the reasons above, a decision was made to list the hearing in Melbourne. It was not my decision, but I do not disagree with the decision. The Council is not unduly prejudiced by that decision, given its use of Melbourne-based lawyers, but I accept that a small number of objector parties are inconvenienced and put to greater cost.
Prior to the preliminary hearing, I had the Principal Registrar make further enquiries. I ascertained that a matter such as this proceeding could likely, on reasonable notice, be heard at Wodonga Court, which is a similar distance from Stanley as Wangaratta. However, the holding of the whole hearing in Wodonga would create an overall higher level of cost and inconvenience to a greater number of parties and witnesses than a hearing in Melbourne.
Accordingly, had this matter proceeded, I consider a compromise may have been appropriate that, whilst not ideal, would share the cost and inconvenience over a multi-day hearing. It would also respond to the local community interest or notoriety that now seems to have attached to this application, whether warranted or not. For example, the initial Council case, and relevant objector party submissions, could be undertaken at a hearing over two days in Wodonga, combined with a site inspection. This would be followed by the second part of the hearing over two days in Melbourne, where Melbourne based expert evidence could be heard. Some co-operation between the parties in the re-ordering of submissions and evidence may be required.
With the proceeding dismissed, it is unnecessary to resolve this. These matters will be relevant however to a future listing decision, depending on the particular circumstances of any future application for review arising from Stanley Pastoral's permit application.

[64]

SRCI sought costs against Stanley Pastoral, being the costs thrown away as a consequence of VCAT having vacated the merits hearing scheduled to commence on 1 December 2014, including counsel's fees.
It was suggested that Stanley Pastoral ought to have known that a CHMP was required, and it was ultimately Stanley Pastoral's failure to address the CHMP issue that lead to the hearing being vacated. SRCI, being a small community organisation, had incurred costs in preparing for the merits hearing, and in appearing via counsel on Day 1. It was blameless in the issues that had lead to the hearing being vacated, and contended that it should be compensated through an award of costs.
Stanley Pastoral opposed the award of costs. It argued that the hearing was not adjourned solely because of the CHMP (with other issues being referred to the preliminary hearing), that it was the Council's conduct in its late raising of the CHMP issue that had lead to the hearing being vacated (rather than conduct by Stanley Pastoral in the proceeding), and that it was VCAT that unilaterally vacated the proceeding despite all parties wanting to continue.
I do not consider that the convenience of using the preliminary hearing to canvass other issues is a sufficient reason to not award costs in circumstances where the primary reason for vacating the hearing was to consider the requirement for a CHMP - a requirement subsequently upheld. Nor is the fact that VCAT unilaterally vacated the hearing - a decision now justified by reason of dismissal of the proceeding for want of jurisdiction.
I consider that SRCI is blameless in what has occurred, and has incurred unnecessary costs. Having regard to the matters in s 109(3) of the VCAT Act, Stanley Pastoral has contributed to the hearing being vacated, both by its conduct in the proceeding in failing to comply with the P&E Act (evidenced by its attempt to have that failure disregarded) and on the basis that it has unnecessarily disadvantaged SRCI through its approach to the proceeding. Having regard to these matters, I consider that it is fair to award some costs against Stanley Pastoral. Alternatively, there is conduct causing disadvantage, for the purposes of s 78 of the VCAT Act, that would justify an award of some costs against Stanley Pastoral.
However, I have some sympathy for the notion that the vacation of the hearing was not caused entirely by Stanley Pastoral, but to a degree by the very late raising of the CHMP issue by the Council. The Council is certainly not blameless in its conduct in the proceeding, and in the events that have transpired. Some of SRCI's costs thrown away may not have been incurred if the Council had properly considered the CHMP issue sooner. I asked SRCI to indicate whether it wished to seek some of its costs against the Council if I was minded to award costs at all, and if I formed the view that the Council was partly responsible for what had occurred. SRCI expressly indicated that it did not seek costs against the Council, but only against Stanley Pastoral.
Although a matter of discretion and balance, I do not consider that SRCI's decision not to seek costs jointly or severally against the Council should operate in a manner that penalises Stanley Pastoral. In the circumstances therefore, and taking account of the other matters I have referred to above, I consider it fair that Stanley Pastoral compensate SRCI for 50% of its costs (including counsel's fees) thrown away as a result of the Tribunal's orders of 1 December 2014 vacating the hearing scheduled to commence on that day. The costs are to be assessed on a party-party basis on the County Court scale, with such costs to be assessed by the Costs Court in default of agreement.

Stanley Pastoral Pty Ltd v Indigo SC

At a glance

Court

Decision date

Source

Judgment (95 paragraphs)

Stanley Pastoral Pty Ltd v Indigo SC (Includes Summary) (Red Dot) [2015] VCAT 36 (27 January 2015)

Parties

Legislation Cited (6)

Cases Cited (1)