Ms N Collingwood of counsel, instructed by Middletons

Ms S Brennan of counsel, instructed by Victorian Government Solicitors Office

1. The purpose of the practice day hearing is to consider an application by Moyne Shire Council to be joined as a party to these proceedings.
2. There are two proceedings, which are scheduled to be heard on 12 and 13 November 2012. One is an application for declaration under section 149B of the Planning and Environment Act 1987 (application P1956/2012) and the other is an application under section 149 of the Act (application P938/2012).
3. These proceedings concern the approval of development plans under conditions in planning permit No 20060220 (the permit). The permit allows use and development of the subject land for a wind energy facility. The permit was issued by the Minister for Planning.
4. At the time when the applicant, Woolsthorpe Wind Farm Pty Ltd lodged the planning permit application in 2006, the Minister was the responsible authority for considering and determining permit applications in relation to the use and development of land for the purpose of a wind energy facility with a capacity greater than 30 megawatts. This situation has now changed as a result of Amendment VC78 to the Victoria Planning Provisions in March 2011, which had the effect of making the council responsible authority for all wind energy facilities.
5. After the permit application was lodged, the application was called in by the Minister for Planning under section 97C of the Planning and Environment Act 1987. On 17 April 2008, the Minister granted a permit under section 97F of the Act.
6. Section 97H deals with the effect of the issue of a permit under section 97F. It provides:

Once a permit is issued under section 97F, the first responsible authority becomes the responsible authority for the administration and enforcement of this Act and the relevant planning scheme in respect of the permit (whether or not the permit is amended) except that the Minister remains the responsible authority in respect of -

(a) any matters which the permit specifies to be done by, approved by or done to the satisfaction of the Minister; and

(c) any extension of time under section 69 in relation to the permit; and

(d) the correction of the permit under section 71(1); and

1. The first responsible authority referred to in this section is defined in section 97A as follows:

In this Division first responsible authority means the responsible authority which has referred an application to the Minister under section 97B or 97C.

1. Thus, because the Minister referred the permit application to himself under section 97C, the Minister is the first responsible authority for the purposes of section 97H. At least, that is the situation which I find existed at the time when the permit was granted. There is contention between the parties as to whether this remains the case following amendment VC78. The relevance of this arises from the arguments put by Moyne Shire Council as to why it should be joined as a party to the section 149 application (P938/2012).
2. The council puts its case for joinder in two ways:
   • Either under section 149(3) of the Act it is already a party to the proceeding; or
   • It should be joined under section 60 of the Victorian Civil & Administrative Tribunal Act 1998.

1. Section 148 of the Planning and Environment Act 1987 defines specified body and specified person. Specified body means:

1. For the purposes of the present proceeding, specified person is defined as follows:

specified person means in relation to a matter -

(a) the owner, user or developer of the land directly affected by the matter; or

1. Section 149 provides as follows (so far as relevant):

(1) A specified person may apply to the Tribunal for the review of -

(a) a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or

1. Section 149(3) provides that:

(3) The responsible authority is a party to any proceedings under this section.

1. There is no dispute that Woolsthorpe Wind Farm Pty Ltd is a specified person or that the Minister is the specified body for the purposes of approval of the development plans required under conditions of the permit pursuant to section 97H(a).
2. Thus, for example, condition 1 requires that:
   1. Before the development starts, development plans to the satisfaction of the Minister for Planning must be submitted to and approved by the Minister for Planning. When approved, the plans will be endorsed by the Minister and will then form part of this permit. The plans must be drawn to scale with dimensions and three copies must be provided.
3. This condition compares to some others in the permit, which require things to be done to the satisfaction of other bodies, such as Vic Roads in the case of condition 7 or the Department of Primary Industry in the case of condition 13(g), or which require consultation with other bodies, such as the Department of Sustainability and Environment, Moyne Shire Council, Country Fire Authority in the case of condition 13 or with Moyne Shire Council and Vic Roads in the case of condition 11. There are other conditions requiring things to be to the satisfaction of Moyne Shire Council, such as condition 16 and condition 26, although both conditions 16 and 26 relate to the use of land post development and compliance with certain standards.
4. Council argues that:
   • Section 149(3) provides that "the responsible authority" is automatically a party to proceedings for the review of a decision of a specified body under section 149 of the Act.
   • Council is the responsible authority for the administration and enforcement of the Moyne Shire Planning Scheme under clause 61.01.
   • Therefore, by force of section 149(3), the council is automatically a party to the proceedings under section 149.
5. I do not agree with this argument for the following reasons.
6. The Act envisages that there may be multiple responsible authorities under a planning scheme (section 13). Under section 13 a responsible authority may be specified under the planning scheme (clause 61.01 and schedule to clause 61.01). In addition, specific provisions of the Act also specify who will be the responsible authority in certain circumstances. Section 97H is one such provision, which operates where the Minister "calls in" a permit application under Division 6 of Part IV of the Act. Section 96N is another provision, which relates to situations where the Minister grants a permit in the context of a combined permit and amendment process under Division 5 of Part IV of the Act.
7. In my view, section 13 is a general provision that enables the planning scheme to specify persons as the responsible authority for particular matters from time to time, but it does not authorise the planning scheme to change any specific provisions of the Act that designate who should be the responsible authority in particular situations. I do not consider that a general provision in the Act overrides a specific provision, nor can a planning scheme, which is subordinate legislation, override specific provisions in the Act. Thus, while section 96N specifies who is to be the responsible authority by reference to the planning scheme, there is no similar reference to the responsible authority under the planning scheme in sections 97A and 97H.
8. Section 97A defines first responsible authority for the purpose of section 97H by reference to a fixed point in time and a particular act, namely the responsible authority which has referred an application to the Minister under section 97B or 97C. Because such reference is to an historic fact, the identity of the first responsible authority does not change even though the planning scheme may have changed. There is nothing in section 97A that would suggest the identity of the first responsible authority may change (or should change) if the person responsible for particular permit applications, which have been the subject of a "call in", changes under the planning scheme from the time when the call in occurred to the present time. That is what has occurred in this case where the first responsible authority responsible for permit applications in respect of wind energy facilities greater than 30 megawatts was the Minister for Planning at the time of the call in and is now Moyne Shire Council.
9. It is not for me to speculate whether the failure of section 97A to make specific provision for a change in the identity of the first responsible authority is deliberate or an omission in drafting. My interpretation may be perceived to produce an awkward outcome, but it is not an illogical or meaningless outcome that would justify reading words into the section to produce a different outcome. I consider that this would require an amendment to the Act.
10. Therefore, to the extent that it is necessary for the purposes of this joinder application to determine the point, I find that:
    • the Minister is the responsible authority for the subject matter identified in sub-sections (a), (c), (d) and (f) of section 97H; and
    • the Minister is also the first responsible authority as defined in section 97A who is responsible for the administration and enforcement of the Act and the planning scheme in respect of the permit pursuant to section 97H because it was the Minister in his capacity as responsible authority under the planning scheme who referred the application to the Minister under section 97C, and that fact has not changed even though the planning scheme may have.
11. Therefore, I do not consider that the council has any role as a responsible authority in respect of the administration and enforcement of the permit except so far as explicitly provided for under the conditions of the permit. On this basis, I do not consider that the council is a responsible authority in respect of the permit. The council may have status as a responsible authority for surrounding land and even the subject land in respect of matters falling outside the ambit of section 97H, but this does not give the council status under section 149(3) to be an automatic party to the section 149 proceeding. This is because I do not consider that the council is the responsible authority in relation to the matter which is the subject of the section 149 application.
12. For the purpose of interpreting section 149(3), it is not really relevant as to who the first responsible authority is in terms of the administration and enforcement of the Act and planning scheme in respect of the permit because that is not the subject of this proceeding. This proceeding is about a secondary consent approval required under the permit falling squarely within the ambit of section 97H(a) for which the Minister is responsible authority and which is an exception to the responsibilities of the first responsible authority otherwise set out in section 97H.
13. It is relevant to note that in the definition of specified body in section 148, all the bodies that may be a specified body are prefixed by the word "a" except responsible authority, which is prefixed by the word "the". In my view, this implies that there will only be one responsible authority in respect of the particular matter which is the subject of a proceeding under section 149.
14. Section 149(1) provides a right of review to a specified person of a decision of a specified body in relation to a matter if a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body. In the present case, it is not in dispute that the specified body is the Minister for Planning in his capacity as responsible authority under section 97H(a).
15. In situations where the specified body is not the responsible authority, section 149(3) operates to provide that "the responsible authority is a party to any proceedings under this section". I find that this means the responsible authority in respect of the matter that is the subject of the proceeding. It does not mean the responsible authority in relation to some other matter.
16. In the present case, under section 97H(a) the Minister is the responsible authority in relation to the matter which is the subject of this proceeding. It is not the council. I therefore find that the Minister for Planning is the responsible authority within the meaning of section 149(3) in respect of this particular proceeding under section 149. As a result, I find the council is not an automatic party to application P938/2012.

Should the council be joined under section 60 of the Victorian Civil & Administrative Tribunal Act 1998?

1. Section 60 of the Victorian Civil & Administrative Tribunal Act 1998 provides:

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -

(a) the person ought to be bound by, or have the benefit of, an order of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) for any other reason it is desirable that the person be joined as a party.

(2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of any person.

1. I accept that the council is interested in the outcome of both these proceedings, but I am not satisfied that the interest it has in the outcome of itself justifies joining it as a party. The council is not a person who ought to be bound by or have the benefit of any order the Tribunal may make in the proceedings. Nor am I satisfied that the council's interests are affected by the proceeding.
2. In terms of other reasons why it is desirable that the council be joined as a party, the council submitted that as responsible authority for the land surrounding the subject land, it had a particular interest in the noise levels and compliance with the standards set out in the permit. It says it also has a particular interest in the traffic management plan required to be approved under condition 11, as the roads and routes identified in condition 11 are all public roads under the control of the council.
3. I do not consider this to be sufficient to require the council to be joined as a party. Under condition 11, the council and Vic Roads must be consulted in the preparation of the traffic management plan. There is no suggestion this has not occurred. The plan itself must be to the satisfaction of the Minister and be approved by the Minister. The whole issue of noise is one which the council agitated at the panel hearing. To the extent that the council may wish to make submissions about noise in the context of the confined issues in dispute in these proceedings, I consider that it does not need to be a party to do so.
4. I consider that the interest the council has in the outcome of the proceedings can be addressed by giving the council leave to make a submission at the hearing. Such an opportunity should not extend to the right to call witnesses. To the extent that the council may wish to cross-examine witnesses called by the Minister or the applicant, this is a matter that the member conducting the hearing should regulate.
5. The real reason why the council wishes to be joined as a party to the proceedings, which appears from responses made to my questions at the practice day hearing, is to have a right of appeal against any declarations or determination the Tribunal may make. I do not consider this is an adequate reason for joining the council as a party to a dispute between the applicant and the Minister.

1. For these reasons, I rule that Moyne Shire Council is not an automatic party to the section 149 proceeding (P938/2012) by reason of section 149(3) of the Planning and Environment Act 1987. The council's application to be joined as a party to both proceedings under section 60 of the Victorian Civil & Administrative Tribunal Act 1998 is refused.