AVC Operations Pty Ltd v Maribyrnong City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2023 04206

AVC OPERATIONS PTY LTD	Applicant
v
MARIBYRNONG CITY COUNCIL (& Ors according to the attached schedule of parties)	Respondents

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	13-14 August 2024
DATE OF JUDGMENT:	7 November 2024
CASE MAY BE CITED AS:	AVC Operations Pty Ltd v Maribyrnong City Council & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 683

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ADMINISTRATIVE LAW — PLANNING AND ENVIRONMENT – Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal – Application to amend planning permit to allow expansion of beer garden in public bar located on land subject to inundation—Tribunal refused to grant application on basis that the proposal did not respond appropriately to flood risk — Whether Tribunal failed to consider a substantial and clearly articulated submission —Whether Tribunal failed to give adequate reasons —Whether Tribunal made a finding for which there was no evidence or which was irrational —Planning and Environment Act 1987 (Vic) ss 55, 56, 61, 72, 85.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Finanzio SC with Ms S Gory	Planning & Property Partners
For the First Respondent	Ms E Porter SC with Ms J Trewhella	Jackson Lane Legal
For the Second Respondent	Mr B Chessell SC with Mr M Roberts	Maddocks Lawyers

TABLE OF CONTENTS

AVC’s application to amend the Permit........................................................................................ 2

AVC’s application to the Tribunal................................................................................................. 3

AVC’s appeal to the Supreme Court.............................................................................................. 7

AVC’s Notice of Appeal............................................................................................................... 7
Unavailability of Tribunal transcript......................................................................................... 7
The issues for determination in this Court................................................................................ 8
The requirements for grant of leave to appeal.......................................................................... 9
The relevant provisions of the planning framework............................................................. 10

Ground 1: Failure to consider a substantial and clearly articulated argument.................... 13

The judicial review principles relating to failure to respond to a substantial and clearly articulated argument............................................................................................................................. 14
What were the submissions which were put to the Tribunal?............................................. 16
The evidence as to the submissions made to the Tribunal.......................................... 17
Finding as to the arguments which were made to the Tribunal................................ 22

The Tribunal’s Reasons.............................................................................................................. 24
Consideration of patron numbers................................................................................... 25
Flood Hazard...................................................................................................................... 27
Flood risk management.................................................................................................... 28
Tribunal’s conclusion........................................................................................................ 30

AVC’s submissions on ground 1.............................................................................................. 32
The respondents’ arguments on ground 1.............................................................................. 34
Consideration.............................................................................................................................. 36
The submissions made to the Tribunal were not as now characterised on appeal. 36
The submissions made on patron numbers, risk, and the FRMP were considered by the Tribunal................................................................................................................... 38
The evidence was not made available to the Tribunal to make the comparison AVC alleges was required to be made...................................................................................... 40
Conclusion on Ground 1.................................................................................................. 45

Ground 2: Failure to give adequate reasons............................................................................... 45

AVC’s arguments in support of ground 2............................................................................... 46
The Respondent’s arguments in support of ground 2........................................................... 46
Consideration.............................................................................................................................. 47

Ground 3: Findings for which there was no evidence or which were otherwise irrational 49

Principles relating to findings on no evidence or which are irrational............................... 50
No evidence........................................................................................................................ 50
Irrationality......................................................................................................................... 51

What the Tribunal stated in its Reasons.................................................................................. 52
The parties’ submissions on Ground 3.................................................................................... 53
AVC submissions.............................................................................................................. 53
The respondents’ submissions......................................................................................... 55

Consideration.............................................................................................................................. 55
The Tribunal’s observations were not findings as characterised by AVC................ 55
The Tribunal’s actual observations were not irrational, nor made without a proper basis.................................................................................................................................. 57
Arguments based on evidence of Mr Swan................................................... 61

Conclusion – Ground 3..................................................................................................... 63

Conclusion......................................................................................................................................... 64

HER HONOUR:

The applicant, AVC Operations Pty Ltd is the lessee of licensed premises, the Anglers Tavern, at 2 Anglers Way, Maribyrnong (the Land), situated on the banks of the Maribyrnong River. The Land has been used for the purposes of operating a hotel since the 1870s.

In 2022, AVC applied for an amendment to an existing planning Permit, to enable an extension of the Tavern’s beer garden.[1] That Amendment Application was made to the first respondent, Maribyrnong City Council, the responsible authority under the Planning and Environment Act 1987 (PE Act).
[1]Application to Amend Planning Permit MPS/2020/528. Affidavit of Scott Blake Edwards affirmed 14 September 2023 (First Edwards Affidavit), [6].

Among other planning controls to which the Land is subject under the Maribyrnong Planning Scheme, it is, relevantly, subject to the Land Subject to Inundation Overlay (LSIO) because it is subject to periodic flooding associated with the Maribyrnong River.[2] The Amendment Application was referred to the second respondent, Melbourne Water, which is a determining referral authority under the Maribyrnong Planning Scheme.[3] Melbourne Water objected to the application on grounds relating to flood risk and the increased risk to patrons that it assessed as arising from the extension to the beer garden.[4]
[2]Maribyrnong Planning Scheme cl 44.04.
[3]See PE Act s 55(4); Maribyrnong Planning Scheme cl 66.03.
[4]First Edwards Affidavit, [14], Exhibit 301-302 (Letter from Melbourne Water to Maribyrnong City Council, 8 September 2022).

The Council did not make a decision on the Amendment Application within the statutory time limit, and AVC applied to the Victorian Civil and Administrative Tribunal for review of the Council’s failure to grant the amendment. The Tribunal refused the grant of an amendment to the Permit.

AVC now seeks leave to appeal the Tribunal’s decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCATAct) on the grounds of the following alleged errors of law:

(a) the Tribunal failed to consider a substantial and clearly articulated argument advanced by AVC;

(b) the Tribunal failed to give adequate reasons; and

(c) the Tribunal made findings in the absence of evidence, or which were otherwise irrational or unreasonable.

For the reasons that follow, I have declined to grant leave to appeal with respect to all three grounds.

AVC’s application to amend the Permit

The Land has been used continuously for the purpose of operating a hotel since the 1870s.[5] Because of that usage prior to the introduction of the planning scheme, the Land enjoys existing use rights and no permit is required for the use of the Land for the purposes of a hotel.[6]
[5]First Edwards Affidavit, [8].
[6]AVC Operations Pty Ltd v Maribyrnong CC [2023] VCAT 925 (Tribunal Reasons), [22], [27]. See, as to existing use rights, PE Act s 6(3); Octopus Media Pty Ltd v Melbourne City Council [2017] VSC 429, [10]-[11], [20]-[29] (Garde J). The Maribyrnong Planning Scheme specifically recognises existing use rights by clause 63.

The Permit the subject of AVC’s Amendment Application authorised, among other things, construction of a larger terrace to the north of the main Tavern building.[7] The Amendment Application lodged with the Council on 4 May 2022, sought first to expand the larger terrace authorised by the Permit and secondly, to increase the area in which liquor could be sold and consumed and increase the patron numbers permitted on site.[8]
[7]Permit TP710/2014. Affidavit of Scott Blake Edwards affirmed 21 December 2023 (Second Edwards Affidavit), [3].
[8]First Edwards Affidavit, Exhibit, 43 and 56.

Melbourne Water, as a determining referral authority, objected to the Amendment Application pursuant to s 56 of the PE Act.[9] Melbourne Water’s grounds of objections were described as follows:[10]

1.The proposed development is inconsistent with the Planning Policy Framework relating to drainage and floodplain management.
2.The proposed development is inconsistent with the purpose and decision guidelines set out in the Land Subject to Inundation Overlay (LSIO) within the Maribyrnong Planning Scheme.
2.[sic] The proposed development is contrary to the Department of Environment, Land, Water and Planning's (DELWP) 'Guidelines for Development in Flood Affected Areas' in relation to flood safety and flood damage.

[9]First Edwards Affidavit, Exhibit, 302.

[10]First Edwards Affidavit, Exhibit, 302.

Melbourne Water advised in the objection that it did not support the extension of the beer garden because of the high flood risk, and its assessment that ‘the high flood depths within the property and on the road’ presented a risk to future patrons. Melbourne Water also found that the ‘proposed building structure for the new serving/bar, cool room and toilets are not in compliance with the minimum finished floor level requirements’ under the Guidelines for Development in Flood Affected Areas, which require that new buildings be a minimum of 600mm above the applicable flood level.[11]
[11]First Edwards Affidavit, Exhibit, 303.

AVC’s application to the Tribunal

On 26 October 2022, AVC applied to the Tribunal under s 79 of the PE Act for review of the failure of the Council to determine the Amendment Application in the statutory timeframe.[12]
[12]First Edwards Affidavit, Exhibit, 347.

If the Council had made a decision within the statutory time frame, it would have been required by s 61(2) of the PE Act to refuse the Amendment Application by reason of Melbourne Water’s objection.

Section 61 relevantly provides:

Decision on application
(1)       The responsible authority may decide—
(a)       to grant a permit; or
(b)       to grant a permit subject to conditions; or
(c)       to refuse to grant a permit on any ground it thinks fit.
(2)The responsible authority must decide to refuse to grant the permit if a relevant determining referral authority objects to the grant of the permit.
…

The Council’s position following the application for review was that it would have refused the Amendment Application on the basis of:[13]

1.The objection received from Melbourne Water pursuant to Section 56(1) of the Planning and Environment Act 1987 having regard to Clause 44.04 (Land Subject to Inundation Overlay) of the Maribyrnong Planning Scheme.
2. The proposed intensity of the increase in patron numbers and red line area is not appropriate in this location, having regard to the purpose and decision guidelines of Clause 52.27 (Licensed Premises) of the Maribyrnong Planning Scheme.
3. The proposed amendments create an unreasonable impact of the amenity of the local community, and is not suited for a use located outside of an established activity centre, contrary to Clauses 17.02-2S (Commercial–Out-of-centre development) and 21.08-6 (Economic Development – Licensed Premises) of the Maribyrnong Planning Scheme.

[13]First Edwards Affidavit, Exhibit, 1018 (Email from the Council to the Tribunal dated 1 December 2022).

On 13 April 2023, the Tribunal made its decision in Phelan v Port Phillip CC.[14] In that case, the Tribunal found that where land used for a hotel enjoyed existing use rights, no permission was required under the planning scheme to increase patron numbers or increase the area in which alcohol was sold or consumed. On 31 May 2023, AVC filed an application to amend the Amendment Application. The amendments were, relevantly, to:[15]

(a) remove the application for permission under cl 52.27 of the Planning Scheme[16] to use land or sell or consume liquor if the number of patrons allowed under a licence is to be increased, or if the area that liquor is allowed to be consumed or supplied under a licence is to be increased; and

(b) reduce the proposed beer garden from 698 square metres to 571 square metres.

[14][2023] VCAT 376.

[15]Tribunal Reasons, [12].

[16]Clause 52.27 provides that permission is required to use land to sell or consume liquor if, relevantly, the ‘number of patrons allowed under a licence is to be increased’ or ‘if the area that liquor is allowed to be consumed or supplied under a licence is to be increased’.

The Tribunal accepted that no permission was required by AVC under the Planning Scheme to increase the area in which liquor is to be consumed or supplied, or to increase the number of patrons, if the subject land has existing use rights as a hotel or bar.[17] The Tribunal granted leave to amend as sought and proceeded on the basis of the amended application.
[17]Tribunal Reasons, [20]-[26].

The Tribunal conducted its review under Division 2 of Part 4 of the PE Act, which provides for the making of applications for review by the Tribunal of decisions of responsible authorities. Pursuant to s 85, after hearing an application for review, the Tribunal may determine the application in a range of ways, including by directing that a permit must not be granted. In the case of an application for review of a refusal or failure to grant, or a decision to grant a permit, the Tribunal may grant the permit and direct the responsible authority to issue it, or grant the permit with directions that it must or must not contain any specified conditions.[18] Unlike the Council’s position when determining an application for a permit or amendment to a permit, the Tribunal exercising its review power is not bound, where a determining referral authority objects, to refuse a permit or application. The Tribunal’s powers under s 85 of the PE Act are not subject to s 56, so that its discretion is not foreclosed by an objection by a determining referral authority.[19]
[18]PE Act ss 85(1)(a) and (b).
[19]See Greenwells Wollert Pty Ltd v Head, Transport for Victoria [2023] VSC 271, [46] (McDonald J); Roads Corporation v McCarthy [2004] VSC 369, [36], [50] (Osborn J).

The matter was heard over five days in July 2023. The Tribunal, constituted by Senior Member Code and Member Bennett, made orders and gave reasons on 9 August 2023.

In summary, the Tribunal concluded that AVC’s proposal as to the extension of the Tavern beer garden did not respond appropriately to the degree of risk arising from potential flooding.[20] The Tribunal focussed on flood risk impacts and the effect of the extension to the beer garden.[21] It noted that there was no dispute between the parties that the Maribyrnong River floods and creates a flood hazard for the Land, but that the key issues were:

(a) whether increased flood risk impacts would arise from the proposed extension to the beer garden; and

(b) whether the flood risk management measures proposed in connection with the Amendment Application were acceptable having regard to flood policy and flood management guidelines.[22]

[20]Tribunal Reasons, [182].

[21]Tribunal Reasons, [60].

[22]Tribunal Reasons, [82], [156]-[157].

The Tribunal concluded that there would, if the extension was approved, be a potential increase in patrons in the beer garden of 656 patrons,[23] which meant that there would be an increased population at risk from the existing flood hazard.[24] The Tribunal did not accept that an increased population at risk was acceptable because it arose in the context of an existing use. It interpreted the Planning Scheme and flood management policy and guidelines as requiring that proposed density increases be assessed very carefully in high risk areas, and that risk must be avoided and minimised if possible.[25] The Tribunal found that the mitigation measure of evacuation relied upon by AVC in its Flood Risk Management Plan (FRMP) ‘being one of the lowest approaches on the hierarchy of flood risk management’, was not adequate.[26] It concluded that AVC’s proposal did not respond appropriately to the degree of risk and that no permission should be granted under the LSIO, with the consequence that the Amendment Application must be refused.[27]
[23]Tribunal Reasons, [76]-[77].
[24]Tribunal Reasons, [165].
[25]Tribunal Reasons, [172], [184]-[186].
[26]Tribunal Reasons, [191]-[192], [200].
[27]Tribunal Reasons, [182], [195]-[203].

The Tribunal affirmed the deemed decision of the Council to refuse to grant the Amendment Application.[28]
[28]Orders made 9 August 2023.

AVC’s appeal to the Supreme Court
AVC’s Notice of Appeal

AVC’s Notice of Appeal in this Court identifies three questions of law:

1.Whether the Tribunal constructively failed to exercise its jurisdiction by failing to respond to substantial clearly articulated argument in a way that affected its decision-making process?

2. Whether the Tribunal field to give adequate reasons for its decision?
3.Whether the Tribunal made findings for which there were no evidence or otherwise acted irrationally?

The Notice of Appeal identified four grounds of review, however only the following three were pressed at the hearing:

(a) Ground 1: The Tribunal committed jurisdictional error by failing to consider a substantial and clearly articulated argument advanced by the Applicant;

(b) Ground 2: The Tribunal committed jurisdictional error by failing to give adequate reasons; and

(c) Ground 3: The Tribunal committed jurisdictional error by making findings for which there was no evidence, or which were otherwise irrational.

Unavailability of Tribunal transcript

A preliminary issue relevant to AVC’s proposed grounds of appeal was that the Tribunal was unable to provide a transcript of the hearing as there was no recording of the hearing due to a technical error.[29] AVC made a request for the notes of the presiding Members, which was refused.[30]
[29]Affidavit of Scott Edwards affirmed 21 May 2024 (Third Edwards Affidavit), [8], Exhibit, 4.
[30]Third Edwards Affidavit, [10], Exhibit, 6.

Affidavits of witnesses who were involved in the hearing before the Tribunal were tendered in which they gave evidence of the oral arguments that were put to the Tribunal. The witnesses were:

(a) Ms Briana Pudel, solicitor who appeared for Melbourne Water;[31]

(b) Mr Jack Chiodo, town planning advocate who appeared for the Council;[32]

(c) Ms Emma Peppler and Mr Rupert Watters, counsel who appeared for AVC.[33]

[31]Affidavit of Briana Janine Pudel (née Eastaugh) sworn 16 February 2024 (Pudel Affidavit).

[32]Affidavit of Jack Chiodo affirmed 15 February 2024 (Chiodo Affidavit).

[33]Affidavit of Emma Rhiannon Peppler affirmed 28 May 2024 (Peppler Affidavit); Affidavit of Rupert James Churchman Watters affirmed 28 May 2024 (Watters Affidavit). Mr Watters prepared the original Notice of Appeal and co-authored written submissions for AVC but ceased to be counsel after making this affidavit.

Ms Peppler and Mr Watters exhibited copies of their speaking notes to their affidavits as contemporaneous records, subject to the qualifications that they did not assert that every word in the notes was said,[34] nor that they were read verbatim.[35]
[34]Peppler Affidavit, [16].
[35]Watters Affidavit, [12].

The issues for determination in this Court

The primary question in this appeal is raised by the first question of law and first ground of appeal. It is whether the Tribunal adequately addressed an argument made by AVC as to the potential for a FRMP to be imposed as a condition of granting the amendment to the Permit, which would serve as an appropriate risk management tool for the existing use, in circumstances where if the amendment was not approved, patron numbers could be increased without any need for planning permission and thus there would be no potential to impose conditions to manage risk. AVC referred to this latter scenario of what might occur if the amendment was not granted as an ‘uncontrolled intensification of the land use’.[36]
[36]Notice of Appeal, [12], Particulars at [b]. Submissions on Behalf of the Applicant filed 18 March 2024, [14].

Taking into account the unavailability of the transcript, there is also a factual question to be determined as to how the relevant argument was articulated to the Tribunal, and the scope of that argument.

The next issue, raised by the second question of law and ground of appeal, is whether the Tribunal’s reasons were adequate in addressing the argument relating to the risk of an uncontrolled intensification of the land use if the Amendment Application was not granted.

Finally, the third proposed ground of appeal involves consideration of whether:

(a) the Tribunal in fact made a finding that there was a real risk that a population of 1,420 people attending the Tavern could be exposed to a material flood risk as a result of factors identified by AVC in its ground of appeal; and

(b) if that finding was made, there was no evidence for the finding, or the finding was irrational.

I have also considered, for completeness, whether the relevant finding made by the Tribunal properly characterised, which is somewhat different to the way in which the finding was characterised by AVC, was supported by evidence or otherwise irrational.

The requirements for grant of leave to appeal

Section 148(1) of the VCAT Act provides, relevantly, that ‘a party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding’.

Section 148(2A) provides:

The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

The requirement that the Court be satisfied that the appeal has a ‘real prospect of success’ has been interpreted to mean that leave may only be granted if the Court is satisfied that the appeal has a real, rather than a fanciful, prospect of success.[37]
[37]Kennedy v Shire of Campaspe [2015] VSCA 47, [12].

The relevant provisions of the planning framework

Applications may be made for a planning permit pursuant to s 61 of the PE Act. Section 72(1) provides for amendments to permits, as follows:

A person who is entitled to use or develop land in accordance with a permit may apply to the responsible authority for an amendment to the permit.

Permissions were required for the amendment under several provisions of the Planning Scheme. The permission relevant to the Tribunal’s decision was that required under clause 44.04 of the scheme, relating to the LSIO overlay.

The purposes of the LSIO are identified in that clause as follows:

Purpose
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To identify flood prone land in a riverine or coastal area affected by the 1 in 100 (1 per cent Annual Exceedance Probability) year flood or any other area determined by the floodplain management authority.
To ensure that development maintains the free passage and temporary storage of flood waters, minimises flood damage, responds to the flood hazard and local drainage conditions and will not cause any significant rise in flood level or flow velocity.
To minimise the potential flood risk to life, health and safety associated with development.
To reflect a declaration under Division 4 of Part 10 of the Water Act, 1989.
To protect water quality and waterways as natural resources by managing urban stormwater, protecting water supply catchment areas, and managing saline discharges to minimise the risks to the environmental quality of water and groundwater.
To ensure that development maintains or improves river, marine, coastal and wetland health, waterway protection and floodplain health.

Clause 44.04-2 identifies the works for which a permit is required, including a deck.

The decision guidelines are set out in clause 44.04-8, and provide for matters which must be considered by the responsible authority, before deciding on an application. They are, as relevant to the Amendment Application, as follows:

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:
·           The Municipal Planning Strategy and the Planning Policy Framework.
·           Any local floodplain development plan.
·           Any comments from the relevant floodplain management authority.
·           The existing use and development of the land.
…
·Alternative design or flood proofing responses.
·The susceptibility of the development to flooding and flood damage.
·The potential flood risk to life, health and safety associated with the development. Flood risk factors to consider include:
oThe frequency, duration, extent, depth and velocity of flooding of the site and accessway.
oThe flood warning time available.
oTidal patterns.
oCoastal inundation and erosion.
oThe danger to the occupants of the development, other floodplain residents and emergency personnel if the site or accessway is flooded.

·The effect of the development on redirecting or obstructing floodwater, stormwater or drainage water and the effect of the development on reducing flood storage and increasing flood levels and flow velocities.

….

The Tribunal also noted the general decision making guidelines in the Planning Scheme which apply to all applications, and in particular the following guidelines:[38]

· Any significant effects the environment, including the contamination of land, may have on the use or development.
…
· The degree of flood, erosion or fire hazard associated with the location of the land and the use, development or management of the land so as to minimise any such hazard.

[38]Planning Scheme cl 65.01.

The Planning Policies in the Planning Scheme which were relevant to the Amendment Application were clause 13.01-S1, Natural hazards and climate change, and clause 13.03-1S, Floodplain management. The relevant aspects of clause 13.03-1S included the following:

· Respond to the risk associated with climate change in planning and management decision making processes.
…

· Integrate strategic land use planning with emergency management decision making.
·Direct population growth and development to low risk locations.

…
· Site and design development to minimise risk to life, health, property, the natural environment and community infrastructure from natural hazards.

The Tribunal also accepted that the Department of Environment, Land, Water and Planning (DELWP) Guidelines for Development in Flood Affected Areas issued in 2019, (adopted by the Department of Transport and Planning) which could, pursuant to s 60(1A)(g) of the PE Act, be considered by the Council in assessing the Amendment Application, were relevant. The DELWP Guidelines were uncontroversially described by the Tribunal as providing ‘an assessment framework and method to assist decision-makers in considering development proposals within flood affected areas.’[39] Most relevantly, Part 3 of the DELWP Guidelines (which deals with assessing development proposals) identifies key objectives for floodplain managers. Objectives 1 and 2 are as follows:[40]
[39]Tribunal Reasons, [103]. No parties challenged the identification by the Tribunal of the aspects of the framework which were relevant to its decision.
[40]First Edwards Affidavit, Exhibit, 2654-2713 at 2684 (Guidelines)

Objective 1 – Safety:
Protect human life and health and provide safety from flood hazard.
·Applies to all development proposals.
·Proposals that are unable to meet the safety objective will be rejected.

Objective 2 – Flood damage:
Minimise flood damage to property and associated infrastructure.
·Applies to building proposals.
·The objective is usually satisfied by setting floor level requirements as a condition of the permit.

Ground 1: Failure to consider a substantial and clearly articulated argument

AVC’s first proposed ground of appeal identified in its Notice of Appeal contended that the Tribunal committed jurisdictional error by failing to consider a substantial and clearly articulated argument advanced by it, and thereby constructively failed to exercise jurisdiction.[41] The argument was said to be made in response to the main basis of Melbourne Water’s objection to the Amendment Application, which was that the grant of the amendment would result in an increase in the potential population at risk from flooding. AVC contended in written and oral submissions that in assessing any risk arising as a result of the grant of the permit application, the Tribunal should take into account:

i.The fact that [the] Applicant could already lawfully intensify the use to allow more people on site without the need for further planning permission and would likely be able to increase the maximum number of patrons permitted by its liquor licence under the Liquor Control Reform Act 1998.
ii.The potential for the imposition of conditions requiring a Flood Risk Management Plan (FRMP) to mitigate risk to both the population of the existing Hotel and to any increased population.[42]

[41]Notice of Appeal, [11], and Particulars at (e).

[42]Notice of Appeal, [11] Particulars at (b).

It is contended by the particulars to the grounds of appeal that in making its decision, the Tribunal accepted that planning permission was not required to increase patron numbers and that an application to increase patron numbers under the liquor licence had good prospects of success; and that a FRMP could be an appropriate (and the only economically justifiable) risk management tool for an existing use. The ground of appeal then states:[43]

Notwithstanding the submissions of the Applicant and its findings in relation to the potential for patron numbers [on] the site to be increased without the grant of the amendment, the Tribunal failed to consider the potential for the intensification of use if the amendment application were refused and the potential risk associated with such an intensification if it occurred and what effect that would have on the population at risk and the level of risk to which that population was exposed and how that might compare to the risk if the amendment were granted.

The judicial review principles relating to failure to respond to a substantial and clearly articulated argument

[43]Notice of Appeal, [11] Particulars at (d).

A failure by a decision maker to respond to a substantial, clearly articulated argument relying on established facts is recognised to be a legal error, being a constructive failure to exercise jurisdiction or a failure of procedural fairness.[44]
[44]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ) Hayne J agreeing at 1102 [95]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435-436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 600 [27] (Kiefel CJ, Keane, Gordon and Steward JJ), 627 [105] (Gleeson J); Victorian Workcover Authority v Jamali [2023] VSCA 240, [92] (Beach JA, J Forrest and Tsalamandris AJJA).

Although some references to the principle refer only to the obligation to respond to a ‘substantial, clearly articulated argument’, without referring to the requirement that the argument rely upon ‘established facts’,[45] the authority identified for the principle remains Dranichnikov, where it was relevant that in making the specific argument, reference had been made to material and evidence which had been presented to the first instance delegate and the reviewing tribunal.[46] It is clear from the authorities that the argument must at least be one which arises on the material before the decision-maker.[47]
[45]For example, SZMTA, 435-436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ).
[46]Dranichnikov, 1092 [23] (Gummow and Callinan JJ), 1095-1096 [47]-[49] (Kirby J).
[47]Plaintiff M1/2021, 599 [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

Not every submission will constitute a matter on which a Tribunal must make findings.[48] Nor can it be concluded from a failure to refer to a particular submission in a decision-maker’s reasons that the submission was not considered.[49]
[48]Plaintiff M1/2021, 598-599 [24]-[25] (Kiefel CJ, Keane, Gordon and Steward JJ).
[49]Jamali, [97].

The High Court has observed, in the context of decision making under the Migration Act 1958 (Cth) by a Minister who receives representations from a person whose visa is cancelled:[50]

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[50]Plaintiff M1/2021, 599 [25] (Kiefel CJ, Keane, Gordon and Steward JJ).

Although the statutory context for the Tribunal’s decision making is different in material respects, this observation does accurately express the caution required in applying this ground of appeal to decisions of the Tribunal. In particular there is a need to appreciate — in assessing whether submissions to the Tribunal are sufficiently substantial and clearly articulated — that this ground of review is a species of constructive failure to exercise jurisdiction, or of failure to accord procedural fairness. Only substantial arguments, clearly put to the Tribunal, call for such consideration that an absence of the consideration will have the effect that the Tribunal has failed to exercise its jurisdiction.

The standard of consideration of substantial arguments required of an administrative decision maker has been variously expressed, including as an ‘active intellectual process’[51] or requiring ‘proper, genuine and realistic’ consideration.[52] The authorities also caution, however, that in applying these qualitative standards, a reviewing Court must be cautious not to slide ‘into an examination of whether the outcome of the decision making was justified or correct’.[53]
[51]Singh v Minister for Home Affairs (2019) 267 FCR 200, 208-209 [30]-[34]; DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177, 189 [12] (Kiefel CJ, Gageler, Gordon and Steward JJ), 212-213 [77] (Edelman J); Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), see also 495-496 (Kiefel J) .
[52]Bondelmonte v Bondelmonte (2017) 259 CLR 662, 672 [29] (Kiefel, Bell, Keane, Nettle and Gordon JJ), citing Gummow J in Khan (by her next friend Khan) v Minister for Immigration and Ethnic Affairs [1987] FCA 713, 11.
[53]Donohue v Westin [2022] VSC 37, [23] (Niall JA). See also the discussion of recent authority on the appropriate approach to a decision maker’s evaluation and the risks of eliding arguments about failure to address substantial arguments with impermissible merits review by the NSW Supreme Court in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604, [15] (Kirk JA; White and Mitchelmore JJA agreeing) and Secretary, Department of Education v Dawking [2024] NSWCA 4, [92] (Gleeson JA; Mitchelmore and Kirk JJA agreeing) and by Cavanough J in McPadden v Secretary to the Department of Justice and Community Safety [2023] VSC 669, [72]-[85].

More generally, in considering this ground of review, as with the other grounds of review discussed below, the Court must not construe the Tribunal’s reasons minutely and with an eye attuned to error.[54]
[54]Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) citing Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).

What were the submissions which were put to the Tribunal?

As noted above, the Notice of Appeal contended that the argument made to the Tribunal which it did not consider, was that it should take into account:[55]

i.The fact that [the] Applicant could already lawfully intensify the use to allow more people on site without the need for further planning permission and would likely be able to increase the maximum number of patrons permitted by its liquor licence under the Liquor Control Reform Act 1998;

ii.The potential for the imposition of conditions requiring a Flood Risk Management Plan (FRMP) to mitigate risk to both the population of the existing Hotel and to any increased population.

[55]Notice of Appeal, [11] Particulars at (b).

AVC in its written submissions in this Court described the relevant argument somewhat differently, as follows:[56]

… the proper approach was to consider and compare flood risk under two future scenarios:
a.First, a ‘controlled intensification’ scenario in which the Amended Application was granted, and conditions imposed which required the preparation and implementation of flood management measures; and
b.Second, an ‘uncontrolled intensification’ scenario in which the Amended Application was refused, but the number of patrons allowed on the Land was increased in any event and there were no enforceable requirements to have flood risk management measures in place.
[56]Submissions on Behalf of the Applicant filed 18 March 2024, [28] (emphasis added).

The evidence as to the submissions made to the Tribunal

It was contended that this argument was made both orally and in writing to the Tribunal. As noted above, AVC faced the difficulty, in establishing what was said in oral submissions, that the Tribunal had not recorded the hearing due to technical error. It was necessary to consider the affidavits of those present at the hearing for the purpose of considering what was said in oral submissions. As the nature of the argument put to the Tribunal is a central consideration in applying this ground of review, and because the respondents did not accept that the argument as described in the Notice of Appeal or submissions was the argument actually put to the Tribunal, it is necessary to consider the evidence as to the submissions that were made by AVC in some detail.

The aspects of the written submissions on behalf of AVC at the hearing which were relied on by AVC were as follows:[57]
[57]First Edwards Affidavit, Exhibit, 1540-1541 (Submissions on Behalf of the Permit Applicant, 11 July 2023).

34.… it needs to be emphasised that the Subject Land is already developed for a Hotel and will continue to be used for the purposes of a Hotel regardless of whether the Amended Application is successful or not.
35.This simple fact is critical because it means the refusal of the Amended Application will not remove the risks about which the Council and Melbourne Water express concern. To the contrary, it simply means that the existing use will continue subject to the existing conditions.
36.To the extent it might be put that refusing the Amended Application would at least prevent an increase in patrons in a location subject to flood risk or prevent the entrenchment of the use, even this is unclear. The only constraint on patron numbers is that imposed by the liquor licence which is in turn driven by physical capacity. The Applicant considers that, even if the beer garden is not expanded, there may be scope to accommodate more patrons within the existing beer garden and buildings.
37.In this context, the Amended Application provides potential benefits to both the proponent and the community because, while it would enable the Tavern to accommodate more people on site (or the same number in greater comfort), it also provides the opportunity to impose conditions which more effectively manage flood and amenity risks. In particular, the Proponent is amenable to conditions which would:
a.Require the preparation and implementation of a flood risk management plan (‘FRMP’) which would, among other things, require the closure of the Tavern on days of a minor flood risk (and anything above a minor flood risk). This approach mimics, but is arguably more conservative than, that taken with many uses which do not operate when the bushfire risk is extreme or Code Red.

….

The submissions later reiterated that the Land was already developed in a way that means there are a potentially large number of people on site during operating hours, and no specific planning conditions to manage the flood risk associated with that situation, so that there would be a benefit in imposing a condition on any permit which required the preparation and adoption of a FRMP to manage the risk for the beer garden and the Tavern building.[58]
[58]First Edwards Affidavit, Exhibit, 1547 (Submissions on Behalf of the Permit Applicant, 11 July 2023 at [61]).

With respect to the oral submissions made at the hearing, the evidence of Ms Peppler was that she made submissions as to flooding, and Mr Watters addressed the remaining matters and made opening and closing submissions. Her handwritten notes of Mr Watters’ opening submission include the following:[59]
[59]Peppler Affidavit, [11], Exhibit ERP-1, 45, 47.

Refusal will not mitigate/limit:- intensification; - existing risk
…
‘Controlled intensification’
1700 under BCA: theoretical maximum
…
Are real benefits with allowing controlled intensification
Beer garden = may enable more people
Intent is more people: but that’s acceptable given risk conditions

Ms Peppler also exhibited the speaking notes she had prepared for the hearing. Her evidence was that the oral submissions she made in the hearing closely resembled the content of the speaking notes.[60] The speaking notes included, most relevantly, the following:
[60]Peppler Affidavit, [16], Exhibit ERP-1, 101-117 (emphasis in original).

We submit:
1.It is the case that the proposal will not change the level of existing flood risk for the site: ie the proposal does not alter the existing likelihood of flooding
2.But – the proposal would have an impact on the risk of consequences of the flooding: a positive impact though, and not a negative impact
3.Because to approve the proposal secures a more certain and improved outcome in terms of the consequences of the flooding – and therefore we say in fact has a beneficial impact on the existing level of risk (cf increasing the risk)
….
Number of people, and how risk relates to no of people:
A.We say theoretical increase in number of people, does not increase risk – because risk is likelihood x consequences – and here FRMP means no one is on site when water inundated.
FRMP means patrons are not exposed to the hazard.
B.Also not a use where existing numbers are consistent – may not have more people than now. Maybe everyone will just sit outside in nice weather. Or may be lesser density in larger beer garden than would be in current beer garden.
C.We also say it’s not a case of x people now, and y people under approval. Can intensify existing site. Only subject to liquor approval, which does not take account of flood.
….
c.Important points for this case are:
….
viExisting use –
1.Existing uses are the subject of different applicable planning control and policy directions
a. Is a difference between creating a new risk
b.And potentially marginally increasing – and then managing – an existing risk

The speaking notes indicate that in reply, the following relevant points were to be made:[61]

… can increase patrons within existing footprint.
i.Expanded beer garden would enable more persons in the beer garden – but doesn’t necessarily follow will be more people on the site overall at any given point in time. Ultimately will depend upon what Liquor Commission determines.

[61]Peppler Affidavit, [15(d)], Exhibit ERP-1, 102 (emphasis in original).

Mr Watters exhibited to his affidavit his speaking notes for his opening and closing submissions. Relevantly the notes included the following:[62]
[62]Watters Affidavit, [10], Exhibit RJCW-1, 3.

5.This context is critical. It is accepted that, if the Hotel did not exist, there would be reasonable arguments against allowing such a use to establish or for the imposition of strict conditions if it were to be established. That is not, however, the situation that [the] Tribunal faces. Rather, the Tribunal has to balance the risks of granting the permit which is likely to lead to a controlled intensification against the risks of uncontrolled intensification which could occur if a permit is refused.
6.Council did not dispute the capacity for uncontrolled intensification to occur.
7.Melbourne Water did put that there is no evidence that uncontrolled intensification could occur. We make the following points in response:
a.First, it is not in dispute that, because the Land enjoys existing use rights, no permit is required to increase the number of patrons allowed on site under 52.27 or to expand the area in which liquor is served. As such, there is no need for planning permission to expand the use;
b.Second, it does not appear to be in dispute that the only legal constraint on patron capacity is under the liquor licence and for liquor licensing capacity is largely an issue of physical capacity, as determined by reference to the Building Code of Australia and the physical area of the development. AVC’s advice is that, having regard to those considerations, the maximum capacity of the site is 1,700 persons.

8.In this context, there is some incongruity between – on the one hand – MW’s saying that, even with a FMRP in place the risks of controlled intensification are unacceptable and – on the other hand – while not asserting that uncontrolled expansion is not possible, arguing that any risk associated with it should be ignored and disregarded. In that context, we note that there is certainly no evidence to suggest that a greater number of persons could not be accommodated in the existing buildings on the Subject Land.

The other participants in the hearing who gave evidence had some general recollections of the submissions. In the case of AVC’s solicitor, Mr Edwards, his recollection was broadly consistent with the notes made by Ms Peppler and the speaking notes tendered by both Ms Peppler and Mr Watters. Ms Pudel, the solicitor for Melbourne Water, recalled Mr Watters’ use of the phrase ‘controlled intensification’ to describe the Amendment Application but also recalled him saying that the precise number of additional patrons was difficult to quantify, and that it ‘was clear that there would be more people on the site’.[63]
[63]Pudel Affidavit, [7].

In submissions in this Court, taking into account the evidence which had been tendered, AVC contended that it ‘advanced the argument that approving the proposed development would afford an opportunity to advance a level of control related to flood risk, which would not otherwise be possible … and that this would be… a nett benefit having regard to the existing situation which includes no control over the existing operation in relation to flood and no consideration of flood related risk in relation to … any future increase in patron numbers, whatever they might be.’[64] It was said that this argument ‘necessarily requires a comparison of the risks which exist now, including the risk of uncontrolled expansion, and whether by comparison those risks are minimised or otherwise rendered acceptable by the grant of a permit subject to conditions which would regulate the flood response… what’s called in the submissions controlled expansion, even if it also increased the number of patrons’.[65]
[64]Transcript 13/08/24 T55.17-23.
[65]Transcript 13/08/24 T56.5-12.

As is evident from the above, the way in which AVC articulated the argument which had been put to the Tribunal – first in its Notice of Appeal, then in written submissions and oral submissions on this application for leave to appeal – involved some variations. For the purposes of clarity in considering the precise ground of appeal which was put, I invited counsel for AVC during the hearing to identify in writing, taking into account all of the evidence, the argument that was said to have been made. AVC filed a document (the Summary) which described the argument as follows:[66]

The argument was that the Tribunal was required to consider a comparison between the risk of an increase in patron numbers (people present on the land) under the permit application with risk mitigation controls (referred to at times as “controlled intensification”) compared to the existing risk, which included the possibility of an increase in patron numbers beyond the remit of the planning system and therefore not subject to the permit application process (referred to as “uncontrolled intensification”).
It was accepted that patronage could be increased outside the planning permit process by way of an amendment to the Applicant’s liquor licence, which would not require consideration of flood risk or the imposition of risk mitigation measures. This was part of the “existing risk” in the sense that it was a risk that existed under the status quo in the absence of the granting of the permit.

[66]Document MFI1, handed up and filed 14 August 2024.

In the consideration which follows, I will refer to this argument as finally summarised by AVC as the ‘risk comparison argument’.

Finding as to the arguments which were made to the Tribunal

Based on the evidence of each of those present at the hearing, I conclude that the argument put to the Tribunal did not involve the clear articulation of the risk comparison argument (nor the submission articulated in the Notice of Appeal or AVC’s submissions, to the extent that there were differences). As a whole, the submissions and evidence did refer to the present ‘scope to accommodate more patrons within the existing beer garden and buildings’, subject to the only constraint being the liquor licence, which was in turn driven by physical capacity.[67] However, there was no submission that this potentially created a risk which the Tribunal was required to consider and balance against the risk arising if the Amendment Application was granted and a FRMP required.
[67]First Edwards Affidavit, Exhibit, 1540-1541 (Submissions on Behalf of the Permit Applicant, 11 July 2023, [36]).

I conclude on the basis of Mr Watters’ speaking notes and Ms Peppler’s written notes of the hearing, and having regard to the evidence of Ms Pudel, that Mr Watters referred in opening submissions to the benefit of a ‘controlled intensification’ of existing use on the site, if the application was granted. I am not persuaded that he referred in terms to the risk of ‘uncontrolled intensification’ or ‘expansion’ of use if the Amendment Application was not granted, and the need to consider that risk. Although the term ‘uncontrolled intensification’ was referred to in Mr Watters’ speaking notes, it was not noted in Ms Peppler’s notes of the hearing, nor was it recalled by Ms Pudel (who did give evidence that she recalled Mr Watters using the phrase ‘controlled intensification’). Mr Watters did not assert that he did say every word in the notes. I find on the balance of probabilities that this term was not used. That may have been because there was no clear position put that the existing use was not in any event subject to a FRMP or some similar risk management strategy; it is unnecessary for present purposes to determine why. But I am persuaded that there was no clear submission put that the Tribunal should compare risks of ‘uncontrolled’ increase in patron numbers as opposed to ‘controlled’ risk if the Tribunal granted the application on condition of a FRMP being in place.

The emphasis of the submissions made was that there was a benefit in granting the Amendment Application because, while it may enable more people to be accommodated on site, it also would require a FRMP to be in place to manage flood risk.

The argument went no further than putting that the Tribunal should consider the benefit of the FRMP being required under the Amendment Application, but not under the status quo which included possible increased patron numbers. This is consistent with:

(a) the written submissions to the Tribunal which refer to the existing risk and the potential to increase patron numbers, and the benefit of being able to require a FRMP if the Amendment Application was granted;

(b) the fact that AVC did not submit that there was no FRMP already in place, nor that it would not use one of the kind proposed, if the Amendment Application was not granted, but AVC sought to increase patron numbers (so that it would have been difficult properly to make a submission that the risk in that case would be ‘uncontrolled’);

(c) the scope of the evidence and material before the Tribunal which (as discussed below) did not include evidence or material enabling any assessment of what increase there may be to patron numbers if the amendment was not granted or the likelihood of that occurring, nor other information directed to enabling a meaningful comparison of that risk as compared to the risk arising if the application was granted.

I conclude, therefore, that the submissions were not as described in the Summary, nor as described in the Notice of Appeal and submissions of AVC (to the extent that they were different). The central focus of the submissions made was to emphasise what was described as the potential benefit of granting the Amendment Application, so that a FRMP could be required as a condition of that grant.

The Tribunal’s Reasons

The Tribunal in its Reasons first addressed the application to amend the Amendment Application, which as noted above involved amendments including a reduction in the footprint of the proposed beer garden from 698m² to 571m², and removal of that part of the original application which had sought permission, pursuant to cl 52.27 of the Planning Scheme, to increase patron numbers and the area in which liquor could be consumed.

The Tribunal agreed with AVC and the Council that no permission was required under cl 52.27, given the existing use rights with respect to the Land for the operation of the Tavern. The Tribunal noted that the uncontested evidence was that the Tavern was established on the Land and that a hotel had been continuously operating on the Land for over 150 years. It followed the reasoning of the Tribunal in Phelan in concluding that no permission was required given the existing use rights, and observed:[68]

The activities within the scope of the existing use right (in this case, the sale or consumption of liquor) may change or intensify provided the purpose of the use as a hotel or bar continues.
We characterise the building and works in the application as facilitating change or intensification of the activities that are consistent with the purpose of the existing use.

[68]Tribunal Reasons, [24]-[25].

The Tribunal then addressed other aspects of the Planning Scheme not relevant for present purposes and made observations as to the limited standing of certain individual respondents. It proceeded to consider issues relevant to flood risk.

Consideration of patron numbers

The Tribunal commenced the discussion relating to flood risk with observations as to patron numbers, noting that the issue of patron numbers, and in particular additional patron numbers anticipated to use the extended beer garden, is relevant to flood risk impacts.

The Tribunal first determined whether there were likely to be additional patrons at the Tavern following construction of the extended beer garden and the quantum of that addition.[69] Following the removal from the Amendment Application of the request for permission for increased patron numbers, there was no specific information before the Tribunal as to what if any increase in patron numbers was anticipated if the expansion to the beer garden was permitted. The Tribunal ultimately concluded that it was reasonable to identify ‘the potential increase in maximum patron numbers in the extension to the beer garden as 656 patrons’.[70] Its reasoning which led to this conclusion was as follows:[71]
[69]Tribunal Reasons, [60].
[70]Tribunal Reasons, [77].
[71]Tribunal Reasons, [60]-[77].

(a) the Tavern’s liquor licence was for a maximum of 764 patrons, but there was no information as to whether the current maximum of 764 patrons was met at times;

(b) the permit application originally sought to increase the maximum patron numbers from 764 to 1,564;

(c) AVC submitted that if the extension was permitted, the current liquor licence would not permit more than 764 patrons, and the outcome would be an ability to accommodate up to 764 patrons at more comfortable and less dense levels;

(d) there was, however, a reasonable inference to be drawn that AVC intended to seek a liquor licence variation to increase maximum patron numbers, based on four matters:

(i) The original application had sought an increase to 1,564 patrons based on an extension to the beer garden of 698m², which indicated an intention on AVC’s part to seek a liquor licence variation to increase maximum patron numbers if the Amendment Application was allowed.

(ii) AVC did not deny the likelihood or possibility of such a licence variation application; it said only that such an increase is ‘uncertain’.

(iii) An application for a licence variation does not require planning permission. Whether a licence is varied to allow an increase in maximum patrons is largely a function of floor area, facilities and building design, and the liquor regulator would not be taking flood risk into account in deciding a licence variation. The Tribunal anticipated that there would be good prospects for a successful licence variation.

(iv) There was no evidence of substantial changes to existing internal spaces at the Tavern, so that it was logical to infer that most of the potential increased number of patrons would be accommodated in the extension to the beer garden.

The Tribunal acknowledged that the patron number increase to 1,564 originally identified in the Amendment Application was unlikely given that the extension sought to the beer garden was 18% smaller. An increase to a figure 18% less than the original increase of 800 patrons (in addition to the existing limit of 764) was about 656 more patrons. This would equate to a new potential maximum of 764 plus 656 or 1,420 patrons.

Having made this conclusion about the potential increase in patron numbers if the beer garden was extended, the Tribunal turned to the question of whether the proposal gave rise to unacceptable flood risk impacts. It noted the submission of Melbourne Water as the floodplain management authority that the proposal involved an unacceptable outcome having regard to (i) the Planning Policy Framework and the purpose and decision guidelines in the LSIO and (ii) Objectives 1 and 2 of the DELWP Guidelines. The Tribunal considered that there were two key issues raised by the submissions:[72]

(a) whether the proposal resulted in off-site flood impacts (which it later concluded were negligible, and for that reason are not relevant to address further);[73] and

(b) whether the proposed flood risk management measures are acceptable having regard to the relevant flood management guidelines and policy.

[72]Tribunal Reasons, [79]-[82].

[73]Tribunal Reasons, [143]-[145].

Before addressing these questions, the Tribunal reviewed the LSIO, the DELWP Guidelines including the safety criteria for development, and other relevant policies and guidelines.[74] It then turned to the factual questions, and relevantly for present purposes to the question of the nature of the flood hazard that it was required to consider.
[74]Tribunal Reasons, [84]-[124].

Flood Hazard

In assessing the flood hazard, the Tribunal referred to Melbourne Water’s assessment that the proposal failed to meet the assessment criteria for flood safety in the DELWP Guidelines. It also considered the hydrology evidence of AVC’s expert Mr Swan.[75]
[75]Tribunal Reasons, [128]-[142]. It is unnecessary to consider these reasons in any detail as the findings on flood hazard were not the subject of any challenge.

The Tribunal found that the Land was ‘particularly susceptible to flooding’ and historically there had been numerous occasions in which flooding would have impacted the proposed beer garden area to some degree.[76] It referred to Mr Swan’s evidence that:[77]

·it is expected that the waters begin to rise at the Maribyrnong gauge between 12 and 18 hours after the start of prolonged heavy rainfall;
·in a large flood event, it is expected that the minor flood level will occur 6 hours after the start of rise of the River; and
·the State Emergency Service (‘the VICSES’) and the Council are expected to receive 8 to 12 hours of warning of a flood peak occurring at the Maribyrnong gauge, measured from the Keilor gauge.

[76]Tribunal Reasons, [128]-[132].

[77]Tribunal Reasons, [134].

The Tribunal referred to the City of Maribyrnong Storm and Flood Emergency Plan issued by VICSES[78] (the MSFEP) which indicated that typical travel times between the Keilor and Maribyrnong gauges are between 1 and 6 hours for a Minor Flood Level; between 2 and 5 hours for a Moderate Flood Level and between 2 and 4 hours for a Major Flood Level. The Tribunal also referred to two flood events, one in January 2011 when the Maribyrnong River rose to 2.21m and caused flooding over the lower floor of the existing Tavern. The second was in October 2022, which was the third largest recorded for the Maribyrnong River and which resulted in the Tavern being cut off from all access roads.[79]
[78]City of Maribyrnong Storm and Flood Emergency Plan – A Complementary Plan of the Maribyrnong Municipal Emergency Plan (Version 5.2) (VICSES, December 2019).
[79]Tribunal Reasons, [135]-[140]; Figure 7 (Photo showing October 2022 flood event).

The Tribunal observed that the amended plans, the subject of the Amendment Application, showed the bar and amenities areas as including a 12m long bar, fridges, drinks area, a cool room, freezer room, storage room and patron toilets which would all be affected in a Major Flood Level event.[80]
[80]Tribunal Reasons, [142].

Flood risk management

The Tribunal then considered the flood risk management measures proposed by AVC, being to adopt the FRMP and implement it in the event of a flood occurring. There were different strategies for a flash flood (shelter in place) and for river flooding events. The Tribunal noted that, in the event of a river flood event, ‘the FRMP strategy relies on people being evacuated from the hotel before the flood waters reach the subject land’.[81] The Tribunal summarised the evacuation plan as providing guidance for the responsible person or delegates to:[82]

·advise all building occupants (patrons, visitors, staff), to evacuate from the building until further notice as it may be closed for some time;
·confirm that all patrons, visitors and staff have evacuated form the building; and
·lock down the building for the duration of flooding in the vicinity of the building.

[81]Tribunal Reasons, [148]. The Tribunal acknowledged at [149] that the FRMP used the word relocate but stated that it regarded the word ‘evacuate’ to more accurately describe the temporary, urgent movement of people away from immediate or anticipated risk of flooding.

[82]Tribunal Reasons, [151].

The Tribunal observed that AVC relied on the evidence of its hydrology expert Mr Swan to the effect that by evacuating the patrons, it is possible to mitigate the flood risk to people to an acceptable level, if not eliminate it. Melbourne Water’s objection was based on avoiding flood risks by avoiding intensification of land use and/or development on flood prone land.[83]
[83]Tribunal Reasons, [153]-[154].

The Tribunal then considered whether the proposed flood risk management measures were acceptable. The Tribunal’s reasons on this issue extended over seven pages, but can be summarised as follows:

(a) AVC’s case relied heavily on the FRMP.

(b) The FRMP strategy of sheltering in place in flash flood events was acceptable because during a local flash flood there was still safe access and egress from the building. The FRMP strategy for river flooding relied on people being evacuated from the Land before the flood waters reached it.

(c) Mr Swan’s opinion was that development was appropriate in the LSIO, for various reasons the Tribunal acknowledged. He also considered the FRMP would completely mitigate the risks associated with access to the subject land in the event of a flood as there would be sufficient flood warning time such that there would be no people on the subject land at the time of flooding. However the Tribunal’s understanding of Mr Swan’s evidence was that he only considered the existing use and maximum patron numbers and did not expressly consider an increase in maximum patron numbers. The Tribunal also noted Mr Swan’s evidence that it would not be acceptable to put the Tavern on the subject land if it was a greenfield site and not an existing use.

(d) For the existing development, the Tribunal accepted that:[84]
[84]Tribunal Reasons, [164].

… implementing an effective FRMP can reduce the risk to life, health and safety (as well as reducing flood damage to buildings and their contents) associated with floods. Flood warning and evacuation plans may, in the existing case, be the only economically justifiable flood risk management measure.

(e) However, the proposal was for an extension to the Tavern and associated with that extension, an additional maximum 656 patrons, which increased the population at risk in that a greater number of people need to be warned and evacuated.

(f) The Tribunal did not accept that an increased population at risk (656, which it regarded as a large number of people) was acceptable because it is an existing use. Its interpretation of the best practice flooding guidelines and handbooks was that ‘existing use is (perhaps reluctantly) accepted, but proposed density increases should be assessed very carefully in high-risk areas such as this, and avoided and minimised if possible.’[85]

[85]Tribunal Reasons, [172], [174].

Tribunal’s conclusion

The Tribunal stated that its ‘ultimate finding is that the proposal does not “respond appropriately to the degree of risk”’.[86] It then set out its reasons for that conclusion.
[86]Tribunal Reasons, [182].

First the Tribunal noted that the FRMP with its evacuation strategy was a flood risk mitigation measure, and observed:[87]

The difficulty with relying on evacuation in this case is that mitigation measures such as evacuation are low in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).
The strategy in the planning scheme is to ‘avoid intensifying the impact of flooding through inappropriately located use and development’.[88]
One of the purposes of the LSIO is ‘to minimise the potential flood risk to life, health and safety associated with development’.
The words ‘avoid’ and ‘minimise’ in these provisions, rather than the word ‘mitigate’ are indications that the planning scheme is aiming to employ strategies higher in the hierarchy of flood risk management.

[87]Tribunal Reasons, [183]-[186].

[88]Planning Scheme cl 13.03-1S.

The Tribunal then observed (in a passage which is the focus of ground 3) that a mitigation measure of evacuation relies on a series of events going to plan, and identified those events. It acknowledged that the FRMP was not finalised and would need to be approved by Melbourne Water and the Council before the development starts, but concluded that the idea of evacuating up to 1,420 people, many trying to flee from the car park, is too risky, and it did not support increasing the population at risk by 656 people in this case.[89]
[89]Tribunal Reasons, [187]-[190].

The Tribunal noted that in contrast to the mitigation measure of evacuation being one of the lowest approaches on the hierarchy of flood risk management, one of the highest approaches on the hierarchy is avoidance by land use planning.[90]
[90]Tribunal Reasons, [191].

The Tribunal stated:[91]
[91]Tribunal Reasons, [195]-[201].

We are not satisfied that the proposed development is consistent with the LSIO objective to minimise the potential flood risk to life, health and safety. Nor are we satisfied that the proposed development is consistent with the floodplain management strategy in the planning scheme,[92] to avoid intensifying the impact of flooding through inappropriately located development.
Further, we are not satisfied that this development achieves the direction for floodplain management in Victoria as set out by the VFMS of ‘avoiding or minimising future risks’ through the use of planning controls to manage the potential growth in risk and ‘not making things worse’.
…
In our opinion the proposal fails to comply with Objective 1 and fails to substantially comply with Objective 2 of the DELWP Guidelines, and comprises an unacceptable outcome with respect to flood safety and flood damage.
The subject land is subject to high flood hazard, well above the DELWP Guidelines safety criteria, for the Maribyrnong River flood. We are not satisfied that the FRMP, which relies on mitigation measures of flood warning and evacuation, is an effective measure to manage flood risk to a level which justifies a development that increases density and the population at risk in the floodplain.
[92]Planning Scheme cl 13.03-1S.
Conclusion
A risk informed approach to land use planning must be taken for the proposed development. It should not be approved due to the high flood hazard associated with this location and the increased population at risk resulting from the development.

As noted above, the Tribunal then observed that where multiple permissions are required under a planning scheme, a permit must only be granted if permission is granted under each element, so that the failure to grant permission under the LSIO meant that the application to amend the permit must be refused.[93]
[93]Tribunal Reasons, [202]-[203].

AVC’s submissions on ground 1

AVC contended that the submission requiring comparison of risks in the controlled intensification and uncontrolled intensification scenarios was put as a central premise or critical part of the case advanced by AVC before the Tribunal and warranted the Tribunal’s consideration of it. However there was no acknowledgement of the submission evident in the Tribunal Reasons.[94] AVC identified the submission as being one that was relevant to the exercise of the Tribunal’s discretion as to whether the amendment should be granted.[95]
[94]Submissions on Behalf of the Applicant filed 18 March 2024, [28]-[30]; Transcript 13/08/24 T38.16-24.
[95]Applicant’s Further Submissions and Submissions in Reply filed 5 July 2024, [12], [13]; Transcript 13/08/24 T38.6-8.

AVC contended that the Tribunal acknowledged that the existing use of the Land would be as a hotel and that the question of patron numbers was relevant to flood risk impacts. It was also submitted that the Tribunal accepted that no permit was required to increase patron numbers and an application to increase patron numbers under the liquor licence ‘enjoyed good prospects of success’.[96] However it was contended that the Tribunal did not acknowledge that AVC could lawfully increase patron numbers without the Amendment Application being granted; nor did the Tribunal compare the risks under the ‘two future scenarios’.[97] This failure to compare the two scenarios was said to have been material because:[98]

…the Tribunal’s evaluation of risk proceeded on the basis that there was a necessary [causal] link between the expansion of the beer garden and an increase in patron numbers on the Land. For the reasons given, no such necessary link existed and expansion could have occurred independently of the grant of the Amended Application. Had the Tribunal accepted this submission, it would have had to consider the risks of uncontrolled intensification and the benefits of ensuring that such uncontrolled intensification did not occur.

[96]Submissions on Behalf of the Applicant filed 18 March 2024, [31], [35].

[97]Submissions on Behalf of the Applicant filed 18 March 2024, [28], [35(b)]; Applicant’s Further Submissions and Submissions in Reply filed 5 July 2024, [17].

[98]Submissions on Behalf of the Applicant filed 18 March 2024, [37].

AVC submitted at the hearing before this Court that the Tribunal assumed that the intensification of use or increase in patron numbers would be ‘completely uncontrolled’, in the sense that there was ‘no regulatory mechanism to enforce’ controls on intensification of use; that the Amendment Application ‘represented an opportunity to fill that regulatory gap’, and that this was ‘in and of itself an important benefit’.[99] AVC contended that although the Tribunal did acknowledge that there would be a benefit to patrons from a FRMP, it did not engage with the potential for the population at risk to increase up to a theoretical maximum of 1700 even if the Amendment Application was not granted, and there would be no statutory obligation requiring a FRMP in that circumstance.[100] The Tribunal did not address the argument that ‘intensification could occur in any event, and without the imposition of risk management measures’.[101]
[99]Transcript 13/08/24 T52.09-T53.14.
[100]Applicant’s Further Submissions and Submissions in Reply filed 5 July 2024, [18]-[19]; Transcript 13/08/24 T60.06-23.
[101]Transcript 13/08/24 T75.21-24.

The respondents’ arguments on ground 1

Melbourne Water contended that leave to appeal should be refused on the first ground of appeal because:[102]
[102]Melbourne Water’s Written Outline of Submissions filed 22 April 2024, [3].

(a) AVC did not make the submission in the Tribunal that it now contends it did, and to the extent that it did make a submission it was no more than a ‘contingent or otherwise insignificant point’ which was considered by the Tribunal.

(b) AVC’s submissions did not at any point call for a specific comparison in the way that is now on appeal said to have been the substantial and clearly articulated argument.[103]

(c) If the submission requiring consideration of ‘uncontrolled intensification’ was in fact made, the Tribunal did in any event make sufficient findings in relation to flood risk in the scenario of increased patron numbers where the amendment was not granted.[104]

[103]Transcript 13/08/24 T124.14-17.

[104]Melbourne Water’s Written Outline of Submissions filed 22 April 2024, [3(b)].

Melbourne Water observed that there was significant divergence in how the argument that AVC contended that it had put to the Tribunal, and that the Tribunal was obliged to consider, had been characterised throughout its case, and in particular the difference between the argument as stated in the Notice of Appeal and the way in which it was put in submissions. It also submitted that the ground of review in reality is a complaint as to how the Tribunal considered the argument, rather than whether it did so. This was based primarily on the particulars to the grounds in AVC’s Notice of Appeal where it was said that:[105]

… the Tribunal failed to consider the potential for the intensification of use if the amendment application were refused and the potential risk associated with such an intensification if it occurred and what effect that would have on the population at risk and the level of risk to which that population was exposed and how that might compare to the risk if the amendment were granted.

[105]Notice of Appeal, Particular (d) to [11].

Melbourne Water also submitted that the principles referred to in Dranichnikov relating to a failure to exercise jurisdiction through failure to address a substantial, clearly articulated argument requires the argument also to be based on established facts.[106] However, the argument put forward by AVC was not based on established facts but involved a hypothetical comparison.[107]
[106]Transcript 13/08/24 T91.25-T92.7.
[107]Transcript 13/08/24 T92.1-7.

[155]Tribunal Reasons, [190] (emphasis added).

The parties’ submissions on Ground 3
AVC submissions

AVC focussed in this ground on the Tribunal’s conclusion that the proposed FRMP which may involve evacuation of up to 1,420 people (if the Amendment was granted to permit the extension) was ‘too risky’ because ‘a lot could go wrong’ and although there may be more than 8 hours’ notice to evacuate, it may be fewer hours in a serious event. AVC identified the rationale for this conclusion to be the Tribunal’s analysis of the various elements on which the mitigation measure of evacuation relied, and contended that this analysis was flawed because:[156]

(a) it involved a view that the proposal must be capable of surviving catastrophic events, which had no foundation in the PE Act nor the Maribyrnong Planning Scheme; and

(b) the approach involved a hypothesis that the government emergency management measures would ‘systematically fail’, which was irrational, and an acceptance of a real risk of ‘catastrophic system failure’, for which there was no evidence.

[156]Submissions on behalf of the Applicant filed 18 March 2024, [46].

It was also submitted that elements of the flood risk management system involved government agencies performing statutory roles. A State Emergency Management Plan (SEMP) had been approved which set out the roles of State and Commonwealth agencies. These include the function of the Commonwealth Bureau of Meteorology, which under s 6(1)(c) of the Meteorology Act 1955 (Cth) issues warnings about weather conditions (including conditions likely to give rise to floods), and Melbourne Water’s responsibility for flood warning services, arising from its obligation under s 202(2)(f) of the Water Act 1989 to provide advice about flooding to communities. The SEMP also provides that the State Emergency Services is responsible for communicating warnings to the public.[157] It was contended that:

The proper approach was for the Tribunal to assume that the various statutory agencies required to act under the SEMP would do so, and would do so competently and to require the Applicant only to manage those elements of the risk that it could reasonably be expected to control.
It was irrational (or unreasonable) in the legal sense for the Tribunal to require an applicant for permit under the LSIO to demonstrate as a precondition to the grant of a permit either that the State’s emergency management system would function as intended, or alternatively, to demonstrate that even if it did not, the Hotel would be safe.

[157]Submissions on behalf of the Applicant, [46].

AVC submitted that it was a fundamental aspect of the Tribunal’s reasoning that a lot could go wrong, ‘being all of those things’ and that the Council and Melbourne Water had not submitted that ‘there was a real risk of everything going wrong at once. What [AVC has]… described in submissions as catastrophic failure of the state’s emergency management systems.’ It was contended that there was no evidence to support the findings and that it was just speculation without foundation.[158]
[158]Transcript 13/08/24 T82.18-31.

The Notice of Appeal stated that the ‘FRMP could adequately manage the risk to the users of the subject land by closing the venue prior to flooding occurring’.[159] AVC referred in submissions to the evidence of Mr Swan, the expert hydrologist, to the effect that there were between 8-12 hours between the time that the warning would be received and the time that evacuation would need to have occurred, and that his evidence was that by the time flood waters reached the Tavern and created a risk, ‘the pub would be closed so there would be no one there’.[160] It was submitted that in these circumstances, it was wrong to assume that there would be people in the beer garden at the time of any flooding which would lead to the need for an urgent evacuation.[161]
[159]Notice of Appeal, [14] Particulars at (d).
[160]Transcript 13/08/24 T84.21-28.
[161]Transcript 13/08/24 T238.5-25.

The respondents’ submissions

The respondents contended that this ground of review proceeded from a false premise, in that the Tribunal did not make the findings ascribed to it by AVC.

Melbourne Water contended that the ground mischaracterised the Tribunal’s reasons, which did not involve a finding that there was a real risk of all the matters identified in the particulars failing, but rather an explanation of why it was preferable to minimise rather than mitigate risk. Melbourne Water submitted:[162]

One of the reasons for that preference was that mitigation by way of evacuation relies on many things going right, whereas minimisation means that fewer people are at risk in the first place.

[162]Melbourne Water’s Written Outline of Submissions filed 22 April 2024, [98].

The Council noted that the Tribunal did not at any point find that there was a risk of catastrophic failure of the State’s emergency management system, and that the finding, properly characterised, was that ‘the mitigation measures relied upon in the FRMP were not effective to sufficiently manage the level of flood risk posed so as to justify granting the Amendment Application, which was open on the evidence.[163]
[163]Outline of Submissions prepared on behalf of Maribyrnong City Council filed 29 April 2024, [37]-[38].

Consideration
The Tribunal’s observations were not findings as characterised by AVC

The paragraph of the Tribunal Reasons on which AVC focusses, [187], was not, as contended by AVC, a finding that each of the identified failings would occur, or might cumulatively occur. It was not a finding that there would be a ‘catastrophic’ or systematic failure of the emergency management framework.[164] Nor was it even a hypothesis to that effect. It was an observation that the proposal to mitigate the risk by an evacuation plan depended on a number of factors occurring or operating as anticipated. AVC’s ground of appeal contended that the Tribunal found that each of the matters would cumulatively arise, which is reflected not only by the use of the word ‘and’ after each item of the list in the particulars, but also the statement in the Notice of Appeal that the Tribunal based its assessment on the ‘real risk that the entire supporting infrastructure of the Victorian flood management system would systematically fail’.[165] It is clear that the Tribunal did not make a finding that there was such a risk. It observed that the FRMP relevantly depended on a number of elements functioning as planned, and later that ‘a lot could go wrong’ with the result that the actual period of notice to evacuate could, in a serious event, be fewer than the 8 hours anticipated in the FRMP.[166] This was not a finding that all elements could fail simultaneously nor that it would go wrong, but a conclusion on the part of the Tribunal that one or more elements may not function as anticipated, which ‘could’ reduce the response time available for an evacuation process.
[164]Submissions on behalf of the Applicant, [46(b), (d)], [47].
[165]Notice of Appeal, [14]-[15] (emphasis added).
[166]Tribunal Reasons, [187], [190].

More specifically, the particulars assert that the Tribunal found that there was a real risk that the relevant population would be exposed to a material flood risk as a result of ‘[p]atrons of the Hotel behaving irresponsibly if required to evacuate’.[167] This is not an accurate characterisation of what the Tribunal found with respect to the behaviour of the patrons.
[167]Notice of Appeal, Ground 4, [14], Particulars at (b (viii)).

The Tribunal did not find that the patrons would behave irresponsibly, but that they would be a ‘potentially more vulnerable’ population given that they would be ‘potentially inebriated’.[168] This was not said by the Tribunal in a negative way that suggested a characterisation of that population but was expressly noted to be on the basis that the patrons would be ‘in group settings and enjoying celebrations, dining, music and dancing’. It was in that context that the Tribunal noted that the evacuation element of the FRMP would rely on that population behaving ‘sensibly and timely in the face of a flood emergency’, and noting that they may need ‘additional support’ to evacuate.[169]
[168]Tribunal Reasons, [188].
[169]Tribunal Reasons, [188].

This was not, read fairly, a finding that the patrons would behave irresponsibly. It was a finding that patrons at a licensed venue like the Tavern may be inebriated, and involved in celebrations or entertainment. They may not as a population all behave in the sensible and timely way that may be expected of another population (such as, it can fairly be inferred from the reasons, a population in a location where there was no expectation that they would be consuming alcohol).

When the Tribunal’s observations at [187] are read in context, they are not, in my view, findings, or at least not findings of a kind, that called for specific evidence. They were rather a recognition of the elements of the system which were required to go to plan, in order to achieve the outcome intended by the FRMP.

While this is a substantial part of the answer to the argument that the Tribunal erred in law in making its conclusions in [187]-[190] because there was no evidence for them, it remains the case that the Tribunal is obliged to act fairly and on a proper foundation. It is appropriate to consider in more detail the basis of the observations, in the context also of the contention that the Tribunal made findings which were irrational.

The Tribunal’s actual observations were not irrational, nor made without a proper basis

In approaching AVC’s contentions that the Tribunal’s findings or approach was without evidence, or irrational, it is important first to refer to the context in which the relevant observations were made.

The Tribunal’s discussion of the elements of the evacuation strategy and the potential for something to go wrong occurred in the context of giving reasons for the conclusion that the proposal, including the FRMP, does not respond appropriately to the degree of risk.[170] The Tribunal first noted that Mr Swan, the hydrology expert, referred to the FRMP and the existing formal flood warning system as ‘non-structural flood mitigation measures’. The Tribunal then observed, referring to the Australian Institute for Disaster Resilience Handbook 7: Managing the Floodplain: A Guide to Best Practice in Flood Risk Management in Australia, that:[171]

The difficulty with relying on evacuation in this case is that mitigation measures such as evacuation are low in the hierarchy of flood risk management (ie the hierarchy of avoidance, minimisation and mitigation).

[170]Tribunal Reasons, [182].

[171]Tribunal Reasons, [183].

The Tribunal noted that this was relevantly reflected in the Planning Scheme and the LSIO. It observed that the Planning Scheme strategy was to ‘avoid intensifying the impact of flooding through inappropriately located use and development’ and that one of the LSIO’s purposes was ‘to minimise the potential flood risk to life, health and safety associated with development’.[172]
[172]Tribunal Reasons, [184]-[185] (emphasis added).

The Tribunals’ observation at [187] that ‘[t]he mitigation measure of evacuation relies on a series of events going to plan’ was in this context a relevant observation, in that it formed an element of the Tribunal’s reasoning as to mitigation measures such as evacuation in the event of flood being a less appropriate response to flood risk than that of managing the risk by land use planning and preventing intensification of existing risk.[173] It was also a rational one, which was not expressed as a finding in the way characterised by AVC, but a recognition of how a mitigation and emergency response strategy such as the evacuation element of the FRMP works, and why it may be a less appropriate response than avoidance or minimisation measures.
[173]Tribunal Reasons, [191]-[193].

To acknowledge the possibility that some element of the aspects of the FRMP may not operate as intended does not entail any conclusion that AVC is responsible for the roles of government agencies,[174] nor that the agencies will not perform their statutory roles. It can be accepted that the Tribunal should not assume that the Commonwealth Bureau of Meteorology will fail to discharge its statutory obligations to issue warnings about weather conditions likely to give rise to floods or that Melbourne Water will fail to provide advice about flooding to communities as provided for by the Water Act.[175] However, there is no indication that it did so.
[174]Cf the Submissions on Behalf of the Applicant at [46(f)].
[175]As contended by AVC: Submissions on behalf of the Applicant at [46(e)]; Transcript 13/08/24 T86.13-T87.27; T88.16-T89.29; 14/08/24 T236.25-T237.03.

The authorities on which AVC relied to contend that it was not open to the Tribunal to assume or hypothesise that the government warnings might not be made or may not be accurate as to timing, were authorities to the effect that courts should assume that government entities will act in accordance with their legal obligations.[176] These authorities, although arising in quite different contexts, can be accepted as also requiring the Tribunal to assume that government parties with statutory roles in an emergency management framework will perform those roles. However there is nothing in the Tribunal’s reasons which suggest that it concluded that the government agencies will not do so. The possibility that the Tribunal raises is not that the agencies would fail to perform their roles, but that something may ‘go wrong’[177] as they perform them. There may be something that affects the accuracy of weather predictions, even if made with due care. There may be something that occurs to affect ‘the flood warning communication going out to the population at risk’, or which affects the accuracy of the communicated flood warning times which arises not because of a failure to perform a statutory role, but of some failure beyond that government actor’s control.[178]
[176]R v Benbrika [2009] VSC 21, [203] (‘In exercising its sentencing function the Court must assume that the Executive will discharge its legal obligations to those whom it imprisons appropriately’); Veness v The Queen [2020] NTCCA 13, [56] (also in the context of sentencing and to similar effect as Benbrika); Walley v Western Australia (1996) 67 FCR 366, 382 (‘There must have been a strong presumption that the government party would comply with its obligations under [s 31 of the Native Title Act 1993 (Cth)].’).
[177]Tribunal Reasons, [190].
[178]Taking the elements of the evacuation management process and planning identified by the Tribunal at [187] which would involve government agencies.

It is consistent with human experience to recognise that performance of a role in the context of an emergency with skill and due care will not in every case ensure successful performance, or performance which achieves the anticipated outcome. That is particularly so where the role involves interpretation of data or some element of modelling or prediction as to future conditions. I am not persuaded that the Tribunal acted irrationally or without proper basis in acknowledging that possibility.

Further, other aspects of the evacuation process identified by the Tribunal depended not on the performance by government entities of their statutory roles, but on the conduct of members of the public. There is no basis on which it must be assumed that all such people would respond immediately to instructions, or behave entirely as expected.

As to the specific concern, which was emphasised by the Tribunal as ‘perhaps most challenging’ of the elements of the evacuation system, that patrons may be inebriated and require additional support to evacuate,[179] this was a rational observation. The facts that the patrons of a licensed venue may include inebriated patrons; and that inebriated persons may not act sensibly or with the same timeliness of non-inebriated persons, are sufficiently based in common sense or universal experience that they would not, in my view, require evidence. These matters would, in my view, fall comfortably within the scope of facts that are so generally known or notorious that they are matters of which a court may take judicial notice, and thus that the Tribunal could take into account in informing itself as it sees fit.[180]
[179]Tribunal Reasons, [187].
[180]See, for example, Turner (t/as Echuca Steam Tramway) v H & C Horsfall [2002] VSC 195, [42] (Ashley J). For examples of judicial notice being taken of the effect of alcohol in different contexts, see Magann v Cucinotta (1988) 6 MVR 440, 442 (O’Bryan J, Supreme Court of Victoria) (likely effect of high blood alcohol on a driver’s capacity to maintain control of a vehicle to react to an emergency and to keep a proper lookout); R v Hunt [1980] RTR 29 (Bridge LJ) (judicial notice of intoxication with alcohol causing an impairment of the ability to drive), cited in Munro v Tooheys Ltd (1991) 21 IPR 268, 286 (Beaumont J).

However, even if that approach was wrong, and some evidence was required to support such an observation, the following material before the Tribunal contained information that supported the Tribunal’s observation.

(a) The Council Delegate Report on the Amendment Application included information from Victoria Police as a result of the referral of the proposal to Victoria Police. That response included information from a local resident about intoxicated patrons and their behaviour, including causing damage to local property around the Tavern premises, and from police reports about ‘heavily intoxicated’ and ‘mildly intoxicated’ patrons and their involvement in poor behaviour at or when leaving the hotel, or in violent altercations.[181]

(b) The Statement of Grounds filed with the Tribunal on behalf of local residents referred to observing Tavern patrons to be ‘rowdy and unpredictable’, and having ‘witnessed some very unwell patrons of the Anglers wandering our streets.’[182]

(c) Submissions and objections provided to the Council by residents, which referred to ‘drunken hoon behaviour’ on local streets, and other similar references to the behaviour of drunk patrons, including that they ‘take a great deal of time to leave the area’.[183]

[181]First Edwards Affidavit, Exhibit 1238-1241.

[182]First Edwards Affidavit, Exhibit, 370, 414.

[183]First Edwards Affidavit, Exhibit, 306, 308, 314, 318, 321, 336-338, 345-346.

While this material may relate to particular instances rather than, necessarily, a wider pattern of patrons being intoxicated or behaving poorly, it was a rational basis for the Tribunal’s measured observation that ‘potentially inebriated’ patrons are ‘vulnerable’ and ‘may need additional support to evacuate’.[184]

Arguments based on evidence of Mr Swan

[184]Tribunal Reasons, [188].

For completeness it is appropriate to address the argument that in light of the specific contention in the Notice of Appeal, and in submissions based on the evidence of the hydrologist Mr Swan to the effect that if timely flood warnings were issued, a FRMP could adequately manage the risk to users of the Land by closing the venue prior to flooding occurring, so that there may be no people on the Land by the time of any flooding so there may not be a need for an urgent evacuation.[185]
[185]Notice of Appeal, [14(d)]; Transcript 13/08/2024 T84.21-28; 14/08/2024 T237.28-T238.25.

Mr Swan concluded in his report that:[186]
[186]First Edwards Affidavit, Exhibit, 390, 397 (Expert Evidence of Robert Campbell Swan, 9, 16).

(a) it is expected that the waters begin to rise at the Maribyrnong rain gauge between 12-18 hours after the start of prolonged heavy rain fall;

(b) in a large flood event, it is expected that:

(v) the minor flood level will occur six hours after the start of the rise of the river;

(ii) the moderate flood level would be exceeded an hour after the minor flood level, with the major flood level occurring an hour later;

(c) Victorian State Emergency Services and the Council are expected to receive 8-12 hours of warning of a flood peak occurring at the Maribyrnong gauge, measured from the Keilor gauge;

(d) in a major flood the first building impacted in Maribyrnong is the Tavern.

Mr Swan observed that as the Tavern is a pub (unlike residential land) there is no need for anyone to visit it at a time of flood, and that the FRMP requirement that the venue be closed at the issuance of a minor flood warning (which typically occurs between 8-12 hours before the flood event) would mean patrons ‘will be removed from the venue well before flooding occurs at the site’.[187]
[187]First Edwards Affidavit, Exhibit, 397 (Expert Evidence of Robert Campbell Swan, 16).

It is not apparent from Mr Swan’s report whether, and if so how, these estimates, and in particular, the estimate of a total of eight hours between the river starting to rise and a major flood level occurring, interacted with the times at which patrons could be at the Tavern and the opinion that ‘there will no people on the site at the time of flooding’.[188] The evidence was that the Tavern’s licence permitted trading hours of up to 18 hours on certain days, from 7 am until 1 am.[189] It was not apparent whether Mr Swan’s opinion was that the Tavern would be closed after flood warnings to prevent people being on the Land, or that evacuation measures would be effective to evacuate any patrons already on the Land.
[188]First Edwards Affidavit, Exhibit, 400 (Expert Evidence of Robert Campbell Swan, 19).
[189]First Edwards Affidavit, Exhibit, 1558 (Submissions on behalf of the Responsible Authority (Council), [30.3]-[30.4]).

Further, evidence from the MSFEP which was referred to in the submissions of Melbourne Water to the Tribunal indicated potentially shorter travel times of floodwaters.[190]
[190]First Edwards Affidavit, Exhibit, 1611 (Submissions on behalf of Melbourne Water, [66]-[67]).

Notwithstanding Mr Swan’s evidence, the Tribunal concluded that ‘[w]hilst there may be more than 8 hours’ notice to evacuate, a lot could go wrong and the actual time in a serious event could be fewer hours’.[191] There was nothing irrational in this conclusion. The Tribunal was not obliged to accept the conclusions of Mr Swan, nor was it irrational for the Tribunal to take it into account, but nevertheless reach this conclusion.
[191]Tribunal Reasons, [190] (emphasis added).

Conclusion – Ground 3

In conclusion, I find that it was not irrational, nor without proper basis, for the Tribunal to acknowledge that a flood management risk plan which relied to a material degree on evacuating a significant number of people from the Tavern and the Land within a limited time did depend on the proposed arrangements ‘going to plan’.[192] It was open to the Tribunal to acknowledge the possibility that elements of the plan could go wrong, and to consider that as relevant to its conclusion that a strategy aimed at minimising the potential risk to life, health and safety from flooding by avoiding intensification of the risk was a more appropriate response than one aimed at mitigating the risk. To the extent that the conclusions as to the nature of the strategy and its operation involved findings or inferences, they were logically connected to the material before the Tribunal, and to the issue of whether the proposal was acceptable insofar as it responded to flood risk.
[192]Tribunal Reasons, [187].

I consider that ground 3, being based on a mischaracterisation of the Tribunal’s conclusions, has no real prospects of success and would not grant leave to appeal.

Conclusion

The application for leave to appeal is refused. I will hear the parties on the question of costs.

---

Schedule of Parties

BETWEEN:
AVC OPERATIONS PTY LTD	Applicant
-and-
MARIBYRNONG CITY COUNCIL	First Respondent
MELBOURNE WATER	Second Respondent
JENNIFER DRIVER	Third Respondent
LISA QUINSEE	Fourth Respondent
JENNIFER CHIVILO	Fifth Respondent

[2024] VSC 683

7 November 2024