1. In Enfield City Corporation v Development Assessment Commission[18] the High Court held that the question whether what was proposed would fit within a statutory definition of 'special industry' was an issue of 'jurisdictional fact' and was not for the Development Assessment Commission itself to finally determine. The criterion 'special industry' was a matter of fact which did not depend upon the satisfaction or opinion of the Development Assessment Commission.
2. In Becton[19] Morris J referred to the decisions in both Enfield and Timbarra in reaching a conclusion that the 'power given to the responsible authority to approve an amendment to any plans approved under a permit is clearly conditional on the amendment being of a certain character. The use of the word if in section 62(3) makes this plain'. Section 62(3) is no longer in the PE Act but at the time of the Becton decision it provided:

(3) The responsible authority may approve an amendment to any plans, drawings or other documents approved under a permit if -

(i) the planning scheme currently applying to the land; and

(b) the amendment will not authorise anything which would result in a breach of a registered restrictive covenant.

1. The power given to the Responsible Authority in section 62(3) was relied upon by the Minister in Becton to amend a Concept Plan which had been approved under a permit. Morris J observed that the 'power to approve an amendment to plans is a broad power; but it is not a power which would extend to the approval of plans which transformed the development shown on the plans which had been approved under the permit'[20]. In other words the power to approve the amendment to the Concept Plan was dependent on the amendment being consistent with the permit as a matter of fact as required under section 62(3)(a)(i) and (ii).
2. In determining that the matters set out in section 62(3) were necessary 'preconditions' and the Tribunal was required to determine whether such 'jurisdictional fact' existed Morris J contrasted the provisions of section 62(3) with the wording in section 73(1) which provided 'the responsible authority may amend the permit if satisfied that the amendment ... and then a set of criteria are set forth'. Morris J stated:

Where Parliament has intended that a matter, which may enliven jurisdiction or give rise to some obligation, should depend upon the opinion of the decision maker or upon the decision maker being satisfied of certain matters it has said so. It has not said so in section 62(3).[21]

1. The power to include condition 4(b) is found in section 62 (2) PE Act which provides that 'the responsible authority may include any other condition that it thinks fit ...' 'What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion'.[22] There is nothing within this legislative provision that could be considered a precondition to the exercise of the giving of consent.
2. Whether the Minister consents or not to a change of height is contingent on the Minister forming his own view of the matter. In the terms of the condition it is his consent. The wording contained in condition 4 provides the power for the Minister to consider the secondary consent. There is nothing within the permit that specifies a precondition to the exercise of this power. The wording contained in the condition is not dissimilar to wording such as 'his opinion' or to 'his satisfaction'.
3. The decision made by the Minister to consent to the change was not contingent on an objective test of 'no consequence' rather it was contingent on the Minister having formed the opinion on the information available that the height could be increased.
4. It may be that the Minister in reaching his decision to consent to the changes applied the criteria/guidelines referred to in Westpoint but the criteria is not a precondition for such a decision, it is not therefore a matter of jurisdictional fact for the Tribunal to determine and in the words of Kirby J in Re MIMA the Tribunal is not entitled to 'intrude impermissibly into the merits of the process of fact-finding'[23].
5. The applicants do not allege the Minister did not take account of all relevant considerations; or took into account irrelevant considerations; or that the decision was so unreasonable no reasonable Minister would have made the decision. Such considerations are known as Wednesbury[24] unreasonableness.
6. The applicants rejected the contention that any decision to grant secondary consent invokes a Wednesbury test where a primary decision maker could determine the existence or non-existence of fact and the determining court will inquire into the reasonableness of the decision by the primary decision maker. In such matters there is no determination of the actual existence or non existence of the relevant fact. Such was the consideration of the Tribunal in Ellix v Kingston CC [25].
7. The applicants relied upon the decision of Deputy President MacNamara in Love v Whittlesea CC[26] to support their contention that the criteria in Westpoint raises a jurisdictional fact. Whilst the Deputy President did not address the issue of jurisdictional fact he referred to the criteria referred to in Westpoint of 'no consequence having regard to the purpose of the planning control under which the permit was granted' and indicated that the considerations relative to the third objective of the SUZ4 is 'of no consequence'. He then indicated that 'failure to meet this requirement would if the Westpoint formulation is treated as ruling on this point, lead to the conclusion that subject to any discretionary circumstances the declaratory relief sought by Mr Love should be granted with respect to the rock crushing plant'.
8. I am unable to conclude that the propositions sought to be relied upon by the applicants are clearly evident in the determination of the Tribunal in Love. Whilst the Tribunal made declarations it is not clear on what basis these were made. Certainly conclusions were reached that the crushing plant located on the land did not have primary approval. There was however no discussion regarding jurisdictional fact.

Whether the 'secondary consent' was merely a prerequisite for obtaining an amendment to the permit.

Distinction between an amendment to a permit and 'secondary consent' within a permit

1. A distinction must be made regarding reference to amending a permit and consenting to changing a requirement within in a permit. These are two distinctive processes[27]. To amend a permit there are specific processes set out in the legislation which must be followed (sections 72 or 87A PE Act) this may result in either the responsible authority or the Tribunal allowing an amendment but this is not until consideration has been given as to whether such an application is advertised under section 52 PE Act and any submissions from persons who may object to the amendment are considered.
2. The secondary consent is not a prerequisite to obtaining an amendment to a permit. An amendment is carried out by way of a statutory process and amends the permit itself. Secondary consent is not a statutory process and results in modifications or variations to the permission granted under the permit. In Benedetti Osborn J stated

The condition does not however, provide for modification of the plans, it provides that the layout of the site and size of the proposed buildings and works shown on the plan shall not be altered or modified without the consent of the responsible authority.[28]

The important distinction between the two mechanisms is that under Division 1A it is the permit itself that is being altered, whereas under a secondary consent provision it is the use or development allowed by the permit (or a particular aspect of the use or development) that is being altered.[29]

1. The Minister's consent to a change in condition 4(b) constitutes a change to the specified height it does not 'amend the specification' as it is written in the permit, rather it consents to the development being different to what has been specified in the condition.
2. No plans have yet been endorsed. Condition 1 of the permit requires development plans to the satisfaction of the Minister for Planning to be submitted and approved, and when approved the plans will be endorsed and then form part of the permit. Condition 1(c) requires the plans to show 'detailed design of wind generators (inclusive of nacelles, blade and foundations), including dimensions, elevations, materials and colours and finish of construction'.
3. There is nothing in condition 1 that requires the development plans to be in accordance with the specifications in condition 4 such development plans must be to the satisfaction of the Minister for Planning.
4. The construction of the various conditions in the permit appears to contemplate that development plans showing amongst other things the detailed design of wind generators must be to the satisfaction of the Minister for Planning and must be submitted to and approved by the Minister before the development starts.
5. Condition 4 requires that the WEF must be constructed in accordance with the specifications contained in the condition and 'which must not be changed without the prior written consent of the Minister for Planning'.
6. Endorsed development plans can be altered or modified under condition 3 but only with the written consent of the Minister.
7. If consent was given to the changes in specifications after the plans were endorsed then not only would there need to be consent to the change under condition 4 but there would also need to be consent to the change being shown on the endorsed plans in accordance with condition 3.

1. The applicants contend the height specification in condition 4(b) must first be amended in the condition itself, otherwise the condition would be rendered misleading, vague and ambiguous.
2. The specifications contained in condition 4 all can be changed with the prior written consent of the Minister for Planning this includes the total number of wind turbines, the heights and base diameter of each wind generator, the number of blades on each wind generator, the colour of the tower, nacelle and rotor blades, the position of electricity cabling and substations, the location of the transformer for each wind generator and the siting of access tracks.
3. There is no need to amend the height specification in condition 4(b). It is evident in the condition that the height specification can be changed. It is noted that at the end of the permit any amendments to the permit are indicated. On 31 August 2006 it is stated 'the permit has been extended for a period of 5 years pursuant to Section 69 of the Act. The permit will expire if the development is not commenced by 19 August 2012 and completed by 19 August 2015'.
4. Condition 39 refers to 'expiry of the permit' and indicates in the condition that the permit will expire if 'development is not started within three years of the date of this permit and the development is not completed within six years of the date of this permit'. It goes on to provide that 'the Minister for Planning may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards'.
5. Taking up the applicants' contention the written consent of the Minister should have been only a precursor to an amendment to the permit and condition 39 should have been amended. The change has been duly recorded on the permit although not in the form of an amendment to condition 39.
6. Whilst it has not been listed on the version of the permit before me it is not unreasonable to consider that the Minister's consent to the increase in height could be similarly noted at the end of the permit.
7. Certainly the wording in condition 4 as in condition 39 would alert anyone looking at the permit to make an enquiry as to whether there had been any changes. I am unable to conclude that in the case of condition 39 because the words in the permit have not been amended it makes the condition misleading, vague and ambiguous to the extent that the condition would be rendered void. Similarly I am not able to conclude that condition 4(b) is rendered misleading, vague and ambiguous because the specified height in the condition has not been amended to accord with the consent height.
8. If there was no secondary consent provision contained within the condition then I would agree with the applicants that the height requirement could only be changed by an amendment to the permit.
9. Whilst the applicants may not agree, if there is a provision for secondary consent then there is conceivably no limit on how many times that secondary consent can be exercised. I do not disagree with the contention by the applicants that as condition 4(b) does not impose any upper limit on what may be consented to then a responsible authority, should not, although not necessarily in the words of the applicants 'err on the side of caution' when considering a request, but should ensure that it has all the information available to it to reach a reasonable conclusion. Otherwise it could be contended, which it has not in this case, that no reasonable responsible authority could have reached the conclusion it reached.

The introduction of a secondary consent provision implies trusting the responsible authority to behave sensibly, responsibly and reasonably in relation to the exercise of power.[30]

1. It may be that normally height specifications can only be changed by amendment that however is not so in this permit.
2. In 155 Domain Road Pty Ltd[31] Morris J determined that a change to the permission required under the planning scheme following the grant of a permit did not prevent consent being given to the alteration to endorsed plans. Such consent 'would not however allow plans to be transformed into some new type of development or new type of permission'[32].

Such a change must also be consistent with the permit: not because this is a requirement of section 62 (3) (a) (ii), but because it would be illogical for a secondary consent to produce an outcome inconsistent with the primary consent (the permit) which created the right to give secondary consent. The same logic does not apply to the current planning scheme because an unexpired permit continues to speak even if the scheme has been changed so that such a permit can no longer be granted'.[33]

1. This is not a case in which the there is any change to the primary consent given. Changing the height does not change the permission granted under the permit. The permission remains for a WEF.

Whether the changes triggered a requirement for a further assessment or approval under the Environment Effects Act 1978.

1. An Environmental Effects Statement and a Supplementary Environmental Effects Statement were prepared and considered prior to the granting of the permit.
2. The applicants contend the change in height should be deemed to be works for which the EE Act applies and that therefore no decision should be made until an Environmental Effects Statement is prepared and assessed. As the EE Act does not contemplate secondary consent it is submitted a change to the height should be considered to be an amendment of the permit for the purpose of the EE Act.
3. Due to the transitional provisions in section 11 of the current version of the EE Act[34] the applicable legislation in relation to this matter is the EE Act in force at 23 May 2005.
4. The scope of the Tribunal's declaratory powers under section 149B PE Act extend only to any matter which may be subject of an application or anything done by a responsible authority under the PE Act. The EE Act is not the PE Act.
5. It does not follow as contended by the applicants that the EE Act in particular section 8 applies to applications for secondary consent. The inference drawn by the applicants that the secondary consent is an amendment to the permit is not supported for the reasons given above and section 8(6) EE Act provides that section 8 does not apply to decisions made under the Planning and Environment Act 1987 except a decision to grant or refuse a permit or an amendment to a permit.
6. The wording of section 8(6) is specific. Section 8 only applies to three types of decisions under the PE Act they are a decision to grant, a decision to refuse or an amendment to a permit. The provision deals with what occurs after a permit is granted and in this regard it is only an amendment to the permit which may trigger the request to prepare an EES.
7. Even if there was a trigger the application of the EE Act is discretionary[35] and in the circumstances of this matter the giving of consent to a change in height does not trigger any requirements or considerations under the EE Act.

Whether the Applicant was denied procedural fairness in not being given an opportunity to make a submission regarding the proposed height increase.

1. The applicants acknowledge that secondary consent applications do not give rise to a right to notice. The provisions for giving of notice relating to permit applications is set out in section 52 P E Act and these provisions apply to a request for an amendment under section 72 PE Act.
2. I am unable to conclude that there is any right that arises for persons to be given notice and allowed to make submissions when a responsible authority is asked to give consent. As stated above it is a matter for the responsible authority to decide whether to give consent or not. If the responsible authority reached the conclusion that what was proposed could cause material detriment, an issue solely for the consideration of the responsible authority, then no doubt it could refuse to grant the consent. If then a request was made to amend the permit it is open under the provisions of section 52 P E Act for the responsible authority to consider to give notice of such an application.
3. A request for an amendment may not automatically occur in circumstances where consent is refused. It may be that the requestor would seek to exercise their rights under the provisions of section 149 PE Act.
4. In the circumstances of section 149 PE Act Parliament has clearly contemplated there may arise a situation where 'a specified person may apply to the Tribunal for review of ... a decision of a specified body in relation to a matter if ... a permit contains a condition that the matter ... must not be done without the consent or approval of the specified body'. Section 148 PE Act defines 'specified person' and 'specified body'. There is no reference within section 148 to a third party.
5. This was highlighted by the predecessor of the Tribunal, the Administrative Appeals Tribunal in relation to the predecessor of section 149 PE Act. In _Kitsone Pty Ltd v City of Doncaster and Templestowe[36]_the Tribunal stated

An informal consent is one which is only required pursuant to conditions in a planning permit. It is not subject to the notification or appeal provisions of the Planning and Environment Act. Disputes in relation to an informal consent may be referred to the Tribunal pursuant to section 149A of the Act. The parties to such a dispute are set out in Section 149A (2). They do not include third parties.

1. Similar to the situations that occurred in the Friends of Mallacoota[37] and Geelong Community for Good Life[38] the applicants, who are an incorporated community group, were accorded procedural fairness by appearing and making submissions in relation to the granting of the permit before the Panel. 'The mere fact of prior consultation cannot readily of itself generate a right to further hearing'[39].
2. As stated by Cavanough J in Geelong Community for Good Life[40]

Counsel did not refer me to any case, nor have I been able to find any, in which it has been held that an established practice of consultation with, or an assurance of consultation given to, an environmental group, a representative group, any other kind of public interest group or any other kind of third party objector at all has been held to give rise to the application of the rules of natural justice or the principles of procedural fairness (whether by way of the doctrine of legitimate expectations or otherwise) where the substantive decision has not directly and specially affected the rights, interests or substantive expectations of particular individuals or of a small identifiable group or class of individuals. Such cases and academic writings as I have been able to find touching these issues - which mainly arise in the planning and environment areas - tend strongly to the contrary. The judgement of Lehane J in Botany Bay City Council v Minister for Transport, to which I have already referred, indicates strongly that cases favouring the plaintiff in this regard are unlikely to be found...

1. The applicants further contend, relying upon Section 32 Charter of Human Rights and Responsibilities Act 2006 (the Charter) which requires statutory provisions to be interpreted in a way compatible with human rights, that section 52 PE Act, that is relating to the provision of notice under the Act, should extend to the right expressed in section 18 of the Charter to participate in public affairs.
2. The right to participate in public affairs in relation to planning is governed by the provision of the giving of notice in relation to permit applications and amendments to permits. Section 52 PE Act does not apply to the giving of notice in relation to a secondary consent. The Minister is therefore not required under the provisions of the PE Act to give notice to third parties.
3. The inclusion of the power to provide secondary consent under a permit is governed by section 62(2) PE Act. The PE Act only provides under section 149 for a specified person or specified body to review the giving of such consent. The PE Act does not provide any rights of review to a third party. By not including within the definition in section 148 PE Act of a specified person or specified body any third parties there is clear legislative intention to exclude the rights of third parties to participate in a review relating to secondary consent[41].
4. The legislation therefore provides for a limitation or restriction on the right in section 18 of the Charter to participate in public affairs in relation to consenting to a change in a condition in a permit. Although the right provides for an opportunity to participate in public affairs, such a right has already been accorded to the applicants in relation to the process relating to the granting of the permit.
5. Applying section 7(2) of the Charter such a limit imposed on the right is justified. An opportunity to participate in public affairs does not extend to notification of every change that will occur under a condition in a planning permit.

1. The Minister as the responsible authority had power to consent to a change in the height specification under condition 4(b) of the permit. The trigger is contained in condition 4(b) and this type of condition is recognised in section 62(2) PE Act.
2. The criteria referred to by the Tribunal in Westpoint are merely guidelines formulated by the Tribunal to assist it in considering applications for review under section 149 PE Act. The criteria and in particular the criteria that the change to be consented to 'is of no consequence having regard to the purpose of the planning control under which the permit was granted' is not a jurisdictional fact for which its existence is required to be determined by the Tribunal. It is merely a guideline used by the Tribunal in considering review applications under section 149 PE Act.
3. The giving of secondary consent is not a prerequisite for obtaining an amendment of the permit. These are two distinctive processes. One is statutory and amends the permit itself, whereas the other is not statutory and results in modifications or variations to the permission granted under the permit. The consent does not 'amend the specifications' as it is written in the permit rather it consents to the development being different to what has been specified in the condition. This does not render the condition misleading, vague or ambiguous. It is evident in the wording of the condition that changes are contemplated.
4. The changes consented to do not trigger a requirement for further assessment or approval under the EE Act. The application of the EE Act is discretionary and there is no reference in the EE Act to secondary consent.
5. There has been no denial of procedural fairness to the applicants. There is no requirement for the giving of notice to third parties in relation to the giving of consent under a permit condition and the legislation specifically limits any right of review in relation to consent to a 'specified body' and 'specified person' which does not include third parties. As an incorporated community group the applicants were accorded procedural fairness by appearing and making submissions in relation to the granting of the permit before the Panel. They were also accorded their right to participate in public affairs but this right is justifiably limited.
6. The application for declarations is dismissed.

[1] A more detailed description of the subject site and surrounds can be found at pages 14 - 19 of the Panel Report 'Bald Hills Wind Farm Project EES, EES Supplement and Called-In Planning Permits' - 24 June 2004

[2] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons

[3] Clause 61.01 Schedule 1 South Gippsland Planning Scheme - The Minister for Planning is the responsible authority under the South Gippsland Planning Scheme for a Wind Energy Facility over 30 megawatts.

[4] An additional request to consent to the provision of aviation safety lighting was later withdrawn due to the withdrawal of the Civil Aviation Safety Authority (CASA) Advisory Circular AC139-18(0) - Obstacle Marking and Lighting of Wind Farms

[5] Cover Sheet to Ministerial Briefing Note 16 December 2009, Letter from Minister for Planning to Director of Bald Hills Wind Farm Pty Ltd dated 16 December 2009, Letter from Minister for Planning to Mayor of the South Gippsland Shire Council dated 16 December 2009

[6] Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947 (30 September 2000) at [14-15 & 20]; Austcorp Group Limited v Monash CC [2006] VCAT 2061 (12 October 2006) at [9-10]; Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 at [7]; Zuzek v Boroondara CC (Red Dot) [2007] VCAT2174 (15 November 2007) at [7]

[7] Zuzek v Boroondara CC (Red Dot) [2007] VCAT 2174 (15 November 2007)

[8] unChain St Kilda Inc v Port Phillip CC (Red Dot) [2009] VCAT 833 (18 May 2009)

[9] Benedetti v Moonee Valley City Council [2005] VSC 434

[10] Vestey v Warrnambool City Council (Red Dot) [2008] VCAT 963 (24 June 2008)

[11] Section 97H Planning and Environment Act 1987

[12] Panel Report Section 21.1.2 page 295

[13] Mentone Mansions v Kingston CC [2000] VCAT 1947; Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049;

[14] Mentone Mansions v Kingston CC [2000] VCAT 1947 ; Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049; 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637; _APAC Design Construction v Whitehorse City Counci_l [2006] VCAT 594; Zuzek v Boroondara City Council [2007] VCAT 2174

[15] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049

[16] Timbarra Protection Coalition Inc v Ross Mining NL and Others [1999] NSWCA 8; Cabal and Others v Attorney -General of the Commonwealth [2001] FCA 583

[17] A Aronsen & B Dyer, Judicial Review of Administrative Action (2nd ed 2000)

[18] [2000] HCA 5; (2000) 199 CLR 135

[19] Melbourne CC & Ors v Minister for Planning and Becton Corporation Pty Ltd [2003] VCAT 1077

[22] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

[23] Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 (Re MIMA)

[24] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB223

[25] [2006] VCAT 2234

[26] [2009] VCAT 1343

[27] Benedetti v Moonee Valley City Council [2005] VSC 434

[29] Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 at [36]

[30] CMA Corporation v Whitehorse CC [2010] VCAT 660 at [27]

[31] 155 Domain Road Pty Ltd v Melbourne CC [2005] VCAT 637

[34] Version No 025 incorporating amendments as at 7 December 2007

[35] Friends of Mallacoota Inc v Minister for Planning and Minister for Environment and Climate Change [2010] VSC 222

[38] Geelong Community for Good Life v EPA (2008) 20 VR 338

[39] Friends of Mallacoota Inc v Minister for Planning and Minister for Environment and Climate Change [2010] VSC 222 at [97]

[40] Geelong Community for Good Life v EPA (2008) 20 VR 338 at [28]

[41] R v Momcilovic [2010] VSCA 50; Smith v Hobsons Bay CC (Red Dot) [2010] VCAT 668 (12 May 2010)