Victorian Civil and Administrative Tribunal|2016-11-18

For the reasons given above, the decision of the responsible authority is affirmed and no permit is granted. Before finishing, it is appropriate that I make the following final comments in passing.

Final comments on risk assessment for proposals in the Outer Ring area

This proposal has involved land which is at least partly inside the Outer Ring pursuant to the MHF Document. I have explained above my approach to the 'risk' assessment with this 'Outer Ring' situation, including it being appropriate that the planning decision-maker on a two-step basis:

Final comments on risk assessment for proposals in the Inner Ring area

If the situation arises where a sensitive use is proposed for a site straddling or within the Inner Ring, my initial impression is that Mr Glossop's 'potential refusal on a threshold basis' line of thinking carries more weight. This is reinforced if the evidence suggests that there should be other feasible locations where the type of use being proposed could go ahead, which are outside of the Inner Ring area. At least with sensitive proposals of a more complicated nature falling inside the Inner Ring, it seems fair to ask the question whether it is appropriate to require the planning decision maker to go through a potentially onerous/time-consuming risk assessment process. However this is an issue for another day.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

Environment Act 1987

Administrative Tribunal Act 1998

Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1929 (18 November 2016)

First, both common sense and previous Tribunal cases on point tell us that the proponent should not need to demonstrate that the proposal will eliminate all risks. It is not a perfect world and we all assume a certain degree of risk every day by leaving our homes and walking/driving/riding around our public urban areas, where accidents in public areas do happen occasionally (as do private or industrial accidents). The real issue is more living our lives with an acceptable level of risk. This is consistent with Knox City Council v Tulcany Pty Ltd [2004] VSC 375 telling us that the relevant test for a planning proposal to be approved is that it be 'acceptable', rather than 'ideal' or 'optimal'.

Some planning proposals involve more complicated risk management than others, due to more acute issues associated with the site, the locality, the type of risk involved and/or the type of person intended to use the facility.
A good example of this more acute form of risk is the risk of loss of human life through bushfires, particularly since 'Black Saturday' in February 2009 when 173 Victorians were killed in these fires. Some factors at work with more acute bushfire risks are the more unpredictable course of bushfires, their ability to spread quickly and the large numbers of affected persons if bushfires get out of control (witness 173 deaths in 2009).
With these more complicated proposals, it follows that 'the bar is set higher', in terms of the proponent providing suitable evidence that the risks involved will be appropriately managed and are acceptable.
A good illustrative case here is Marsden v Macedon Ranges CC (Red Dot) [2012] VCAT 1038, where it was proposed to double the number of students attending the existing Candlebark School located in a picturesque but bushfire-prone bush area near Romsey. The Tribunal had to consider very challenging bushfire-risk issues and evidence but ultimately approved the proposal. At [59] the Tribunal stated that:

I acknowledge that in the debate about what constitutes an acceptable level of risk, a mitigating factor can be if there is a demonstrable pressing community need for the proposed facility on the particular land in question.
A good example of such a mitigating factor is the previous decision of Carey v Murrindindi SC [2011] VCAT 76 involving a proposed replacement community hall in the small rural town of Flowerdale, just north of Melbourne. This area had been badly burned on Black Saturday, with the previous community hall being destroyed and several people losing their lives. The new hall was intended to be built on the site of the previous one, where the evidence before the Tribunal was that there was no other readily suitable site in the township for such a hall. It was submitted by the permit applicant and Council (and not disputed in itself by the objectors) that there was a major community need for a replacement community hall in this small rural town.
Whilst acknowledging that Flowerdale remained a high risk bushfire location, the Tribunal ultimately found that (with various modifications to the proposal and constraints on its day to day operation) a manageable level of bushfire risk management could be achieved. In making this judgement, the Tribunal accepted that it was a very positive feature of the proposal that there was an acute community need for a replacement community hall in Flowerdale - there would otherwise be no public building in which the local community could meet and foster local community activities and spirit. The Tribunal also accepted that there was no other obvious alternative location for a potential hall in this small township.

Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1929

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1929 (18 November 2016)