Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor - [2010] VCAT 1226 - VCAT 2010 case summary — Zoe

[9]

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.
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'.
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.
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].
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.
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].
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'.
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.

[16]

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.
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.
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'.
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'.
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.
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.
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.
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.
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.

[22]

An Environmental Effects Statement and a Supplementary Environmental Effects Statement were prepared and considered prior to the granting of the permit.
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.
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.
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.
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.
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.
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.

[29]

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.
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.
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.
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.
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.
The application for declarations is dismissed.

Parties

Applicant/Plaintiff:

# Tarwin Valley Coastal Guardians Inc

Respondent/Defendant:

Minister for Planning & Anor

Legislation Cited (2)

Environment Act 1987

Effects Act 1978

Cases Cited (6)

Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor (includes Summary) (Red Dot) [2010] VCAT 1226 (28 July 2010)

Whether condition 4 contained a trigger for secondary consent. Whether the giving of secondary consent was a precondition to an amendment to the permit. Whether the criteria of 'no consequence' referred to in Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049 is a 'jurisdictional fact'. Whether the consent triggered the requirements of the Environment Effects Act 1978 and whether the applicants were denied procedural fairness in not being able to make submissions regarding the consent.

Mentone Mansions Pty Ltd v Kingston CC [2000] VCAT 1947 (30 September 2000); Austcorp Group Limited v Monash CC [2006] VCAT 2061 (12 October 2006); Westpoint Corporation Pty Ltd v Moreland CC [2005] VCAT 1049; Zuzek v Boroondara CC (Red Dot) [2007] VCAT2174 (15 November 2007); unChain St Kilda Inc v Port Phillip CC (Red Dot) [2009] VCAT 833 (18 May 2009); Benedetti v Moonee Valley City Council [2005] VSC 434; Vestey v Warrnambool City Council (Red Dot) [2008] VCAT 963 (24 June 2008); 155 Domain Road Pty Ltd v Melbourne City Council [2005] VCAT 637; APAC Design Construction v Whitehorse City Council [2006] VCAT 594; 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; Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Melbourne CC & Ors v Minister for Planning and Becton Corporation Pty Ltd [2003] VCAT 1077; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; ; MIMA); [1948] 1KB223; ; ; ; ; ; (Appeal No 1992/21753); (2008) 20 VR 338; ; (Red Dot) (12 May 2010)

(2000) 199 CLR 135

(1986) 162 CLR 24

(2008) 20 VR 338

Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor

At a glance

Court

Decision date

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

Tarwin Valley Coastal Guardians Inc v Minister for Planning & Anor (includes Summary) (Red Dot) [2010] VCAT 1226 (28 July 2010)