Victorian Civil and Administrative Tribunal|2011-06-21

The applicant does not propose to change its proposal. It became evident at the hearing that there was common ground between the parties that the further hearing by the Tribunal should be limited to the issue of noise impacts in accordance with paragraph 5(1) of the Court's order.[4] It also became apparent at the hearing that there was common ground between the parties that the nature of the remittal about noise is a rehearing de novo on this issue.
The key issue in dispute between the parties is the question of what law applies to the Tribunal's rehearing on the issue of noise. The council says that noise impacts must be assessed on the basis of the standard and requirements of Amendment VC78 as they are relevant to the issue of noise impacts. This means that the 2010 Standard is relevant.
The applicant says that it is entitled to rely on the 1998 Standard. It says that the applicant has accrued a right under section 28 of the Interpretation of Legislation Act 1984 to have the proceeding determined in accordance with the law as it was at the time that the Tribunal fell into error, which was when the Tribunal made its first determination.

(2) Where a subordinate instrument or a provision of a subordinate instrument -

(b) expires, lapses or otherwise ceases to have effect -

the repeal, amendment, expiry, lapsing or ceasing to have effect of that subordinate instrument or provision shall not, unless the contrary intention expressly appears -

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

(d) affect the previous operation of that subordinate instrument or provision or anything duly done or suffered under that subordinate instrument or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that subordinate instrument or provision;

(f) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against that subordinate instrument or provision; or

(g) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) -

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that subordinate instrument or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

The 'orthodox' position (as described by the council), particularly with respect to planning law, is that set out in Ungar v City of Malvern[5] and Robinson v City of Nunawading[6].
In simple terms, the principle that Ungar stands for is that the Tribunal is obliged to consider the planning controls in force on the date on which its decision is made. Both Robinson and Ungar considered the equivalent of section 28 of the Interpretation of Legislation Act.
The Full Court of the Supreme Court in Robinson held that the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings unaffected by amendment of the statute.
In Ungar, the Full Court of the Supreme Court considered the issue of whether or not, by instituting an appeal before an amendment to the planning scheme, the appellant acquired a right or privilege to have his application determined in accordance with the law as it existed at the date on which he instituted his appeal. The Court said[7]:

... It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. ...

In the present case, the institution of the appeal by the appellant gave him no more than a hope or expectation that his appeal would succeed and that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park for 33 Peverill Street, the Appeals Tribunal was bound to refuse to give such a permit to the appellant.

The applicant does not deny that the principle of Ungar would apply if this was a case at first instance before the Tribunal. However, it says that the Supreme Court appeal and remittal to the Tribunal places the case in a different category. Once the applicant lodged its appeal for judicial review, it required a right to have the proceeding determined in accordance with the correct law if the Tribunal applied the wrong law, which everyone agrees it did. This is an accrued right, which is preserved by the Interpretation of Legislation Act.
The applicant relies on the High Court case of Esber v The Commowealth[8] to say that the applicant has accrued a right to have the proceeding determined in accordance with the law as it was at the time that the Tribunal made its first determination.

In Esber v The Commonwealth, the High Court considered an application made by an injured defence force officer to redeem weekly compensation payments under the Commonwealth (Compensation Government Employers) Act 1971 (Cth) ("the 1971 Act") so as to receive a lump sum payment in lieu thereof. The application for redemption was refused and the officer applied to the Commonwealth Administrative Appeals Tribunal to review that decision. After the officer lodged the application but before the application was heard, the 1971 Act was repealed by the Commonwealth Employees' Rehabilitation and Compensation Act 1988 ("the 1988 Act"). The 1988 Act removed the right to redeem weekly payments.
Section 8 of the Acts Interpretation Act 1901 (Cth) was in similar terms to the provisions of section 28 of the Interpretation of Legislation Act 1984.
Relevantly, the Court found[9]:

... at the least, the appellant had, at the time of the repeal of the 1971 Act, a right to have his application to the Tribunal determined pursuant to Pt V of the 1971 Act. It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (16) In [Drake v. Minister for Immigration (1979) 24 ALR 577 at p 589]. Bowen C.J. and Deane J. said of the Tribunal (6):

"The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal."

But that is not to the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister (1988) 14 NSWLR 685, at p 694:

"The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional."

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" (18). Nor was it a mere matter of procedure (19); it was a substantive right (20). Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent"(21). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

However, in my view, the applicant in the present case did not acquire an accrued right along the lines of the right found to exist in Esber's case. As the High Court says in Esber[10]:

The first step in a consideration of s.8 is to identify the "right" which the appellant says was acquired or accrued under the repealed Act. Paragraph (e) operates in relation to such a right, not independently of it.

The equivalent provisions in the Interpretation of Legislation Act 1984 are section 28 and subsection (2)(e).
In the present case, we are not talking about a repealed Act but rather an amendment to the planning scheme. Nevertheless, the same principle applies. The planning scheme provision that was amended (clause 52.32) did not create any right. All it did was to set out a standard by which noise impacts should be assessed and considered. In my view, it is stretching the imagination to describe this as a "right" acquired or accrued under the amended planning scheme. I agree with the applicant that it has a "right" to have its application for review determined in accordance with law, but that is not a right that is acquired or accrued under clause 52.32 of the planning scheme. The right of review is acquired under section 77 of the Planning and Environment Act 1987. That has not changed. The right to have the review determined in accordance with law is an inherent common law right that the court oversees as part of its jurisdiction under section 148 of the Victorian Civil and Administrative Tribunal Act 1998. That has not changed either.
Whereas in Esber the High Court found that the appellant had accrued a right under the repealed Act, the Court specifically found it was not merely "a power to take advantage of an enactment" such as was the case in Robinson. The Court made this finding based on the facts of the particular case before it and the provisions of the Act in question. I do not consider that Esber establishes a general principle, which is applicable to all situations where there is a successful appeal against the determination of a Tribunal, that when remitted to the Tribunal for rehearing it will always be the law at the time the original decision was made that is applicable to the rehearing. It will depend upon the facts and circumstances of each case as to whether it can be said that a right has accrued within the meaning of section 28 of the Interpretation of Legislation Act 1984.
In the present case, I find that the facts in the present case do not fall within the ambit of section 28. I find that no right was acquired or accrued under the planning scheme. The applicant had no more than "a power to take advantage of an enactment". No right is given under the planning scheme; rather, it establishes a process which is to decide whether a right in the form of a planning permit should or should not be given. It is a situation which, in my view, falls squarely within the principle enunciated in Ungar. It does not matter that the process of decision making is being made upon remittal from the Supreme Court or upon an initial application for review: the task of the Tribunal is the same in each case. It must consider the original permit application de novo (albeit in the present instance confined to the issue of noise)[11].

Emmerton J has ordered that the proceeding be remitted to the Tribunal, differently constituted, "to be heard and decided again in accordance with law, and with the hearing of further evidence." For the reasons I have given, I find that the law requires the Tribunal to hear and decide the remitted proceeding in accordance with the provisions of the planning scheme at the time the Tribunal makes its decision. In terms of the specific issue of noise impacts, which the further hearing is limited to, the current law requires consideration of the 2010 Standard.

ADDITIONAL MATERIAL TO BE PROVIDED BY THE APPLICANT

At issue are further requirements requested by the council in a letter from Maddocks dated 19 April 2011.
The parties agreed that items 2, 3 and 4 under the heading "Application requirements" do not relate to noise issues and are not required. Item 1 is in contention. The council requests under this item:

A new application plan showing the location of all dwellings within 2 kilometres of a proposed turbine as required by clause 52.32-1, and adopting a precautionary approach, accounting for micro-siting variation in final placement of turbines, as required by clause 3.8 of the 2011 Guidelines.

I consider that the provision of this information is relevant and may assist the Tribunal. I do not consider that the provision of factual information such as a plan showing the location of all dwellings within 2 kilometres of the nearest turbine changes the proposal. I will direct this to be provided.

The applicant agreed that if I did not find in its favour, it would need to provide the information requested under the heading "2010 New Zealand Standard". In light of the findings I have made, this information should also be provided.

[2] The Sisters Wind Farm Pty Ltd v Moyne SC [2010] VCAT 719

[3] Amendment VC78 came into effect on 15 March 2011

[4] It is fair to say that the applicant approached the preliminary hearing on the assumption that the council was contending that due to Amendment VC78, all issues were on the table, not just noise impacts. However, at the hearing, the council clarified that it accepted that whilst the Tribunal's decision was set aside and the proceeding was remitted to the Tribunal to be heard and determined again, this was qualified by being confined to the issue of noise.

[9] [1992] HCA 20; (1991) 174 CLR 430 at page 440-441; [1992] HCA 20 at [21]. Citations deleted.

[11] Section 51 Victorian Civil & Administrative Tribunal Act 1998

(Compensation Government Employers)_ Act 1971(Cth)

The Sisters Wind Farm Pty Ltd v Moyne SC (includes Summary) (Red Dot) [2011] VCAT 1133 (21 June 2011)

This case is an example of a situation where the principle in Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259 was applied that the Tribunal is obliged to consider the planning controls in force on the date on which its decision is made.

The High Court case of Esber v The Commonwealth (1991) 174 CLR 439; [1992] HCA 20 was considered but was held not to establish a general principle, which is applicable to all situations where there is a successful appeal against the determination of a Tribunal, that when remitted to the Tribunal for rehearing it will always be the law at the time the original decision was made that is applicable to the rehearing. It will depend upon the facts and circumstances of each case as to whether it can be said that a right has accrued within the meaning of section 28 of the Interpretation of Legislation Act 1984.

The Sisters Wind Farm Pty Ltd v Moyne SC

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

The Sisters Wind Farm Pty Ltd v Moyne SC (includes Summary) (Red Dot) [2011] VCAT 1133 (21 June 2011)