VCAT Volume 10 No 2

1. Is the CFA or Council responsible for the investigation of contaminated land?

In Wyndham CC v Environment Protection Authority (Red Dot) [2022] VCAT 1061, a preliminary hearing was held to determine whether the Environment Protection Authority (EPA) or the Council was responsible for the investigation of contaminated land.

The subject land is a Council reserve and it was commonly agreed that the source of the contamination was from poly-fluoroalkyl substances (PFAS) from the abutting Country Fire Authority (CFA) site. The EPA had issued a Notice to Investigate (the Notice) to Council. A subsequent Notice had been issued.

Following the submission of a Preliminary Site Investigation report by Council, the EPA determined that the intent of the requirements of the Amended Notice had been achieved and advised that the Amended Notice had been revoked.

Pursuant to section 430(1)(a) and section 273(1)(a) of the Environment Protection Act 2017 (the EP Act), the Council sought a review of the EPA’s decision to issue the Amended Notice. The Council contended the Amended Notice is misdirected and should be issued to the CFA or, in the alternative, that the decision be remitted to the EPA.

The EPA concurrently sought that Council’s application be summarily dismissed on the basis that:

  • the Amended Notice had been revoked and any continuation of the application that sought the Amended Notice to be set aside was misplaced because it had the same effect at the orders sought by the Council to set aside the Amended Notice,
  • the Tribunal had no jurisdiction to order that ‘no information gathering notice be issued’,
  • the Tribunal had no jurisdiction to remit the application to the EPA for reconsideration with a direction or recommendation that a notice be issued to the CFA,
  • and the application is therefore frivolous, vexatious, misconceived and lacking in substance and/or an abuse of process.

The Council contended that the dismissal applications did not ‘get to first base’ because they relied on the validity of the revocation of the Amended Notice. It argued that the EPA could not revoke a notice once the Tribunal is seized with jurisdiction under an application for review of the notice. Further, it argued that its submission was strengthened by the Tribunal’s stay of the operation of the Amended Notice pending final determination of the application for review.

In dismissing Council’s contentions, the Tribunal held:

  • It was not accepted that revocation deprived the Tribunal’s jurisdiction. Upon revocation, final orders were still required. They might be, in the ordinary event, an application for leave to withdraw the application. By its conduct, the EPA had not accepted the Tribunal had been deprived of jurisdiction. The EPA has sought final orders by way of dismissal of the applications.
  • Section 273 did not expressly limit revocation to the EPA forming the opinion that the requirements of the Notice have been met, so the submission that meeting the ‘intent’ of the requirements was insufficient and could not be sustained. The Council’s submissions on these matters were tantamount to a challenge to the reasonableness of the EPA’s findings on the contamination. The Tribunal did not see this within the Tribunal’s jurisdiction in a merits review of the Amended Notice.

Having regard to the principles relating to summary dismissal, the Tribunal concluded that the Council’s applications were misconceived and lacking substance.

Given the Tribunal’s summary dismissal of the matter, the question of whether the Council or the CFA was responsible for the investigation of the contamination was not considered. The Tribunal observed that the situation was novel because the Council carried out an investigation that the EPA found was satisfactory but the Council now contended that the EPA could not or should not have made that finding.

See also:

  • Guide to Planning Appeals: Summary dismissal

2. Supreme Court finds CHMP not required

It may be recalled that in Strawhorn v Ballarat CC [2021] VCAT 1482 (editorial comment VCAT Vol 9 No 4),  the Tribunal found that a Cultural Heritage Management Plan (CHMP) was required and that application to amend the permit should be remitted to the Responsible Authority to decide the application with the benefit of a CHMP. The Tribunal had concluded that a CHMP was required because the ‘wetland’ shown on the Wetland Map was a ‘waterway’.

The permit applicants challenged the Tribunal’s decision in Walsh Ballarat Quarries Pty Ltd v Ballarat City Council [2022] VSC 546. In setting aside the Tribunal’s decision, the Court found that the Tribunal failed to have regard to the matters identified in expert cultural heritage evidence to the effect that the blue lines on the Wetland Map were drains, not natural water flows. It stated:

That evidence was of great potential significance to the question as to whether the marked wetlands were ‘waterways’; indeed, the Tribunal’s interpretation of those marks (in a way that was in tension with Mr Clark’s evidence) was the basis upon which it concluded that the wetlands was a ‘waterway’. The Tribunal made no reference in its reasons to this aspect of Mr Clark’s evidence. Indeed, its statement at the beginning of para 39 of its reasons set out in para 24 above indicates that it failed to appreciate this aspect of Mr Clark’s evidence. I am satisfied that this aspect of Mr Clark’s evidence was not weighed by the Tribunal when it was deciding whether or not to grant Walsh Ballarat Quarries leave to reopen its case to rely on Mr Clark’s evidence. [30]

The Court directed that the Tribunal redetermine the matter.

See also:

  • Guide to Planning Appeals: Cultural Heritage Management Plan – Exemption from requiring a CHMP

3. Misuse of a declaration proceeding

In Little v Baw Baw SC [2022] VCAT 1080, a person purporting to be a developer sought a declaration from the Tribunal that the growing and processing of hemp is a Rural industry. The person was not the landowner. In summarily dismissing the application, the Tribunal held:

It is an express requirement of section 149A(1)(a) of the Planning and Environment Act 1987 (P&E Act) that the ‘matter’ related to the interpretation of the planning scheme must be ‘in relation to land’ or ‘a particular use or development of land’. Section 149A(1)(a) of the P&E Act provides:

149A Application by certain persons for declarations

(1) A specified person may apply to the Tribunal for the determination of a matter if—

(a) the matter relates to the interpretation of the planning scheme or a permit in relation to land or a particular use or development of land;

The Tribunal stated:

The correct interpretation of this section is that the matter must relate to:

    • the interpretation of the planning scheme in relation to land; or
    • the interpretation of a permit in relation to land; or
    • a particular use or development of land. (Tribunal emphasis) [31]

The Tribunal considered this finding is consistent with the standing of the person entitled to bring this type of application, that is, the specified person having some relationship with the land. A specified person must be the owner, user or developer of the land directly affected by the matter.

The Tribunal also considered the matter lacking in substance. It considered the Applicant was seeking an advisory opinion from the Tribunal about the characterisation of use devoid of any dispute, and devoid of real facts to which a dispute arises. (See Mollica v Shire of Bulla 9 AATR 157). Hence, the Tribunal found:

  • there is no dispute in existence;
  • the dispute is hypothetical; and
  • the dispute does not raise practical issues of local or State importance that cannot be properly addressed by an application for planning permit and proceedings, if necessary.

See also:

  • Guide to Planning Appeals: Declaration > Declarations not to be made for ‘advice’

4. Can a declaration be made under the Environment Protection Act to address noise?

In Bayside Residents for Council Accountability Inc AO111574S v Bayside CC [2022] VCAT 1091, a group of residents sought a declaration pursuant to section 436(1) of the Environment Protection Act 2017 (EP Act) which sought to impose restrictions on the noise emanating from a netball centre.

The netball centre operated at a government secondary school site in the Public Use Zone and did not require a planning permit.

Section 436(1) of the EP Act provides:

Application for declaration

(1) A person may apply to VCAT for a declaration concerning any matter in relation to which the person may apply to VCAT under this Act or anything done by the Authority under this Act.

(2) On an application under subsection (1) VCAT may make any declaration it thinks appropriate in the circumstances.

(3) VCAT’s power to make a declaration under this section is exercisable only by a presidential member of the Tribunal.

(4) Without limiting subsection (1), a person proposing to engage in an activity may apply to VCAT for a declaration as to whether or not a permission is required to engage in that activity.

The Tribunal found that the declaration was outside the scope of the power in section 436(1) because they are conditions in respect of use for which no permission is required. It stated:

The declarations sought by the Applicant seek to prescribe the imposition of conditions for the use of the proposed netball centre. None of the statutory powers of approval or consent under the EP Act of the Council or the EPA are re-engaged in relation to the proposed netball centre. The Council has made no decision under the EP Act which could be the subject of an application to the Tribunal for review. [22]

The Applicant also sought to rely on the general environmental duty in section 25 of the EP Act. Section 25(1) provides:

A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

In finding that a breach of section 25 (as well as sections 166 and 347) did not enliven the Tribunal’s jurisdiction, it stated:

I accept that the structure and scheme of the EP Act requires activities to be conducted in a way which complies with the requirements of the legislation including the general environmental duty. However, sanctions imposed by the EP Act only arise after the requirements are breached. Further, the Tribunal’s jurisdiction to make declarations is confined to matters which may be the subject of an application to the Tribunal under the EP Act. The Tribunal is not empowered to enforce all of the requirements and sanctions of the EP Act including the general environmental duty in all circumstances. [27]

Given its findings on want of jurisdiction, the Tribunal summarily dismissed the application pursuant to Section 75 of the Victorian Civil and Administrative Tribunal Act 1998.

See also:

  • Guide to Planning Appeals: Declarations under Environment Protection Act

5. Local action group refused standing

The Court of Appeal decision The People of the Small Town of Hawkesdale Incorporated v Minister for Planning and Ors [2022] VSCA 167 is important because it:

  • confirms the principles that govern a plaintiff’s ‘special interest’ in determining whether they have standing to appeal in the Planning and Environment Act 1987 (P&E Act) context; and
  • clarifies the operation of section 69 P&E Act in circumstances where the permit includes a condition governing expiry.

The People of Hawkesdale Inc (The Peoples) challenged the decision in November 2020 to extend the time under a planning permit for completion of a wind farm. This was not the first extension of the permit, originally granted in August 2008. The Peoples were incorporated in 2021.

The Peoples claimed to have a special interest because its members were directly affected by the decision to extend the permit.  However, The Peoples had no legal, proprietary or financial interest that might be affected by the Extension Decision. Some of its members had such an interest or interests, but the Court did not know enough about the interests of many of the members of The Peoples to make a finding that they would all have standing in their own right.  The fact that some members of The Peoples had a special interest in the subject matter of the proceeding did not, of itself, compel the conclusion that The Peoples had such an interest [47]. There was no evidence that The Peoples had ever actively represented its members or anyone else [48]

The Court of Appeal rejected the submission that “the association is no more or less than its members clothed with the mantle of incorporation. It is a misunderstanding of the effect of incorporation to treat it as a barrier to the pursuit by its members of their interests.” [57]

The Peoples had written no letters, made no submissions, held no public meetings, and had had no interactions with the Department, the Minister or the proponents of the Wind Farm development.  This was not the subject of challenge in the appeal [76].

The Court of Appeal upheld the finding at first instance that The Peoples did not have a special interest.

The Court expressed reservations about the relevance of the activities of members of The Peoples  to the question of standing of the association [74].  The Court was scathing of the allegation that the trial judge had neglected the effect on the town of Hawkesdale:

As to her Honour’s alleged neglect of the ‘unchallenged evidence that the Hawkesdale Wind Farm will affect the population level of Hawkesdale’, which was said to be a ‘shared interest’ of the Association’s members, the evidence that the Wind Farm would affect the population level of Hawkesdale was both scant and speculative. It did not rise above assertion. Moreover, there was no evidence that the impact of the Wind Farm on the population of Hawkesdale was a ‘shared’ concern of all the members. And even if there were evidence to support such a finding, this would not, without more, confer representative status on the Association. [79]

The Court’s summary of the principles governing standing was endorsed:

(a)  The special interest test is flexible, and its content in a given case depends on the nature and subject matter of the litigation. There is no precise formula as to what amounts to a special interest in the subject matter of a particular proceeding; the application of the test is fact and context specific.

(b)  A ‘special interest’ sufficient to invoke the Court’s jurisdiction to supervise the exercise of public power is not limited to the legal, proprietary or financial interests that are protected by the private law.

(c)  The requirements of standing serve to keep the exercise of judicial power within proper bounds, namely the resolution of legal controversies between parties who are affected by the outcome.

(d)  The special interest test requires an intersection between the interest identified by the plaintiff and the subject matter of the proceeding. It is necessary to assess how the plaintiff’s interest may be affected by the matter in respect of which it seeks relief.

(e)  The statutory context is important. It will be relevant whether and to what extent the statute accommodates the plaintiff’s interest, and how it intersects with that interest. However, the statutory context does not control standing: a ‘plaintiff may have standing to challenge the exercise of power because of its practical or legal effect. [43]

The Court confirmed that section 69 was not an exclusive and mandatory code for extension of a planning permit (otherwise than by means of an amendment to the permit).

In the Court’s view, the fact that section 69 makes provision for the extension of permits does not confine the power to make a permit condition that operates on the same subject matter.  Accordingly, the provision for extension in the permit itself was valid and section 69 was described as a default expiry provision.  There were therefore two provisions governing expiry which had an overlapping effect, but this is not unusual.

See also: 

  • Guide to Planning Appeals: Appeals > Standing, Permit> Extension of time to permit

6. Characterisation of use: whether re-processing of mulch ‘Materials recycling’ or ‘Industry’

It may be recalled that in Mobius Materials Recovery Pty Ltd v Kingston CC [2021] VCAT 788 the Tribunal held that, on a site used for waste management, the proposed use of re-processing mulch for use in agriculture was an innominate discretionary use for which a permit is required in the Green Wedge Zone.

In Kingston City Council v Mobius Materials Recovery Pty Ltd & Anor [2022] VSC 58, the Council challenged the Tribunal’s finding in the Supreme Court. It contended that the use of the land was ‘Industry’ on the basis that involved the ‘treating of waste materials’. The operator of the site contended that the proposed use did not fall within any specified category and thus fell into the catch-all category in section 2 being ‘Any other use not in Section 1 or 3’. In the alternative, it was contended that the activity was ‘Materials recycling’ and was in section 2.

In relation to whether the Tribunal was correct to exclude ‘Materials recycling’ as the appropriate land use, the Court noted that the Tribunal gave no reason why the activity did not fall within the primary definition of ‘Materials recycling’. It stated:

That reasoning involved an error of law. Non-satisfaction of the condition did not mean that the process was not ‘Materials recycling’ but had the consequence that the activity was prohibited. Alternatively, the failure to determine whether or not the process came within the definition of ‘Materials recycling’ before turning to the condition involved a constructive failure to exercise jurisdiction. [57]

In relation to whether the Tribunal was correct in construing the word ‘waste’ where it appears in the phrase ‘waste materials’ which is contained in the definition of ‘Industry’, the Court considered that, in order to succeed, the Council must show that the phrase ‘waste materials’ is not intended to have its ordinary meaning but is to be understood as adopting the extended definition found in a different statutory regime that is informed by different objects and purposes.

The Court held that Council’s submission that the word ‘waste’ is not to have its ordinary meaning but is supplied by the Environment Protection Act 2018 and Environment Protection Regulations 2021 has no foothold in the text of the Scheme. It stated:

There is no point of reference that would direct the reader to an external source such as the EP Act. Indeed, the Council relies on the absence from the PE Act and the Scheme of any textual indication such as a definition or other elucidation as the reason to look elsewhere. In my view, given that the word ‘waste’ is readily understood and is not a term of art, it would require much more than an absence of detail to justify picking up a statutory definition from a different regime. [73]

Given the above finding, the Court determined the Council had failed to make the grounds of appeal on this aspect of the Tribunal’s decision.

As to the Council’s alternative submission that ‘the word “Industry” is broad and inclusive’ and that the proposed activity was ‘clearly, and undoubtedly, industrial’, the Court rejected the Council’s submission that the Tribunal wrongly narrowed the definition of waste by excluding any item or thing that had undergone some form of refinement, processing or waste recovery.

On the basis of its findings in relation to whether the Tribunal was correct to exclude ‘Materials recycling’, the Tribunal’s Order was set aside and the matter remitted to the Tribunal. The Court saw no reason why the matter should not be remitted to the same Senior Member. The determination was interlocutory and did not involve any contested questions of fact or determination of the credit of any party or witness. The determination of the preliminary question was of a relatively routine kind and the reasons of the Senior Member did not provide any basis for thinking that it would be inappropriate or otherwise unsuitable for her to continue with the matter.

See also: 

  • Guide to Planning Appeals: Materials recycling, characterisation of use

7. Remission of Melbourne CBDs Telstra payphones to VCAT

It may be recalled that in Melbourne City Council v Telstra Corporation Limited [2020] FCAFC 200 the Full Court of the Federal Court of Australia set aside a Federal Court of Australia decision Telstra Corporation Limited v Melbourne City Council [2020] FCA 305 (editorial comment VCAT Vol 8 No 6), that determined that the installation 76 payphones was a low impact facility within the meaning of Schedule 3 to the Telecommunications Act 1997 (Cth) and the Telecommunications (Low-impact Facilities) Determination 2018 (Cth). In setting aside the decision, the Full Court held:

Respectfully, I do not agree with the primary judge’s conclusion on that issue. In my view, the facts demonstrate that one of the functions that Telstra’s New Payphone Cabinets are designed to serve is the display of commercial advertising (not limited to advertising related to the supply of standard telephone services). In those circumstances, the New Payphone Cabinets are not a low-impact facility as described in Item 6-1 by reason of condition (d). [74]

The matter – or matters, as they are 76 applications listed for 48 days of hearing – has been remitted to the Tribunal. In the meantime, the parties sought the determination of several questions of law. The Tribunal in JCDecaux Australia Pty Ltd v Melbourne CC [2022] VCAT 1124 determined those questions as follows:

  • The proposed structures (payphone cabinets) are characterised under the Victorian Planning Provisions as a Telecommunications facility.
  • A permit is required for the development of the Telecommunications Facility pursuant to clause 52.19 of the Melbourne Planning Scheme.
  • No permit for use is required if a permit is granted under clause 52.19 of the Melbourne Planning Scheme.
  • No permit is required for the development of the Telecommunications Facility under the zones and overlays in the Melbourne Planning Scheme that apply to the subject land.
  • Electronic promotional signage at the rear of the payphone cabinet is ancillary to the payphone cabinet and thus it is not necessary to include reference to electronic promotional signage in the description of the permit application.

A question then arose as to whether the applications should be remitted to the Council for decision that would then be reviewed by the Tribunal should a review application be made. However, the Applicant opposed this potential approach.

In deciding not to remit the applications to the Council, the Tribunal held:

I concur with the applicant that it will suffer prejudice if the applications are remitted to council. However, I do not accept that such prejudice arises from further delay given the circumstances before me. The position advanced by the applicant is that the applications should not be scheduled for hearing at present. Further, the applicant says that the parties should attend a compulsory conference, following which hearing dates can be scheduled, if necessary. That submission, whilst cognisant of the Tribunal’s resources is at odds with a submission that relies on prejudice by delay.

The applicant correctly identifies that it is prejudiced by further fees and costs it may incur if the applications are remitted. I accept that in the circumstances before me the payment of further fees, is a highly relevant matter. 

The applicant has taken several steps since the compulsory conference and the practice day hearing including withdrawal of 24 applications and amendment of the other applications. I am satisfied that the applicant has taken reasonable steps in recent times to progress the applications remaining with the Tribunal.

I am satisfied that the applicant is now in a position to properly advance the applications before the Tribunal. [23-26] 

Whilst it made the above finding, the Tribunal did not agree with the Applicant’s submissions that if the Tribunal is to consider using section 51(2)(d) of the Victorian Civil and Administrative Act 1998 (VCAT Act), it must nevertheless consider the matters relevant under section 84B of the Planning and Environment Act 1987 (P&E Act). It stated:

I accept that the similar language is used in each of the provisions, but I note that the term ‘proceeding’ is used in section 51 of the VCAT Act whereas ‘application’ is used in sections 84B and 85 of the PE Act. Interestingly, section 85 of the PE Act allows amongst other things, the Tribunal to direct that a permit either be granted or not be granted (with or without specific conditions). No mention is made of any other outcome, such as that set out in section 51(2) of the VCAT Act. Given my decision, I do not need to decide the difference in the language of the legislation. However, the VCAT Act is clear, the power given to the Tribunal by section 51(1)(d) of the VCAT Act is in addition to the power under sections 84B and 85 of the PE Act. [28]

See also:

  • Guide to Planning Appeals: Telecommunications facility – Exemption from permit 

8. Identifying land to which an application applies

In Cavendish Properties Pty Ltd v Kingston CC [2022] VCAT 1150, the Tribunal considered an application for the use of land for residential apartments (dwelling). The approved Development Plan shows a 10 storey building.

As well as the application for the use of the land, applications for buildings and works and dispensation of car parking had also been made.

The Tribunal noted the confusion about the land to which the permit would apply. Council submitted that the extent of land to which the permit applies had not been properly identified. It appeared the building envelope straddled over several titles.

The Applicant called a licensed surveyor. He was not concerned about the additional land affected and he explained that the differences could be addressed in several ways. The Tribunal indicated that was not the issue:

However, the issue is not whether the boundaries can be resolved, but rather whether the land to which the permit applies was properly identified in the permit application. This is not a question that would have arisen in respect to the consent for the current DP as the planning unit in that case was different as stages 1 and 2 were composed in an integrated manner. 

A planning permit is a public document. The Tribunal has found that it should be capable of being understood by any person (Gant v Greater Geelong City Council (2003) 15 VPR 230). A planning permit attaches to land, and I find that it is important that the application correctly identifies the land to which the permit applies as a matter of orderly and proper planning. This principle is established in Pioneer Concrete (Qld) Pty Ltd v Brisbane CC (1980) 145 CLR 485. While the title or lot boundaries are not necessarily definitive of how to treat a parcel of land for planning permit purposes, the planning unit should be clearly understood. [46-47]

The Tribunal found the failure to properly identify the land fatal to the application and refused the grant of a permit.

See also: 

  • Guide to Planning Appeals: Permit > Application for permit

9. Drafting of consent orders

In M J De Frutos Nominees Pty Ltd v Hume CC (Red Dot) [2022] VCAT 890, the Tribunal provided a timely reminder of the importance of carefully drafting consent orders. Its red dot summary is re-produced below:

The Tribunal has recently observed an increasing number of poorly drafted consent order requests.

This decision is a Red Dot Decision because:

(a) it is a reminder that the Tribunal will not grant a poorly drafted consent order and that parties need to carefully prepare a consent order request, and

(b) it illustrates how a poorly drafted consent order request can lead to the widening of a dispute or the emergence of a new dispute.

In this case, the dispute concerned the approval of a geotechnical report under a condition of a permit relating to the rehabilitation of a former quarry. The parties filed a consent order request that sought to approve the report subject to amendments set out in an appendix to the Tribunal’s order. The request was unclear and was refused having regard to its form. The parties were encouraged to amend the report to incorporate the amendments to add certainty and avoid future confusion.

A series of subsequent events revealed that the parties had different views of the outcome of the original consent order request.

This is because the document incorporating the amendments was approved by the responsible authority but then corrected when the responsible authority realised the document was not what it had assumed would be the outcome under the original consent order request. This revealed the parties had divergent views about what was being agreed under the original consent order request

As the review proceeding concerning the failure to approve the report was still on foot, the applicant then sought a declaration to the effect that the responsible authority had now approved the report and the decision to correct the approved report should be set aside. This led to further problems about the nature of the dispute and how the Tribunal could properly dispose of it.

In other words, the failure of the parties to express their agreement carefully and accurately in the consent order request resulted in complications, delay and further costs.

See also:

  • Guide to Planning Appeals: Appeals > Consent orders