Circular Head Coastal Awareness Network Inc v ACEN Robbins Island
[2025] TASSC 7
•27 February 2025
[2025] TASSC 7
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Circular Head Coastal Awareness Network Inc v ACEN Robbins Island Pty Ltd [2025] TASSC 7 |
| PARTIES: | Circular Head Coastal Awareness Network Inc |
| v | |
| ACEN Robbins Island Pty Ltd (ACN 618 734 277) | |
| Circular Head Council | |
| The Board of the Environment Protection Authority | |
| FILE NO: | 19/2024 |
| JUDGMENT | |
| APPEALED FROM: | Ryan v Circular Head Council and Smith v Circular Head Council and Birdlife Tasmania v Circular Head Council and ACEN Robbins Island Pty Ltd v Circular Head Council and Bob Brown Foundation v Circular Head Council and Circular Head Coastal Awareness Network Inc v Circular Head Council (No 4) [2023] TASCAT 217 |
| DELIVERED ON: | 27 February 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE/S: | 11, 12 February 2025 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Appeal and new trial – Appeal - general principles – Right of appeal – When appeal lies – Error of law – What is – generally – Where the relevant scheme required the proposal to be essential or unavoidable to effect the overall benefit – Whether this requirement imposed a positive obligation on the tribunal to rule out all other viable alternatives to characterise the proposal as essential or unavoidable – Tribunal considered the necessity of the proposal in relation to community benefit – No inferred positive obligation required to eliminate viable alternatives – Appeal dismissed
Aust Dig Appeal and New Trial [20]
Appeal and new trial – Appeal - general principles – Right of appeal – When appeal lies – other cases – Where the proposal could only provide benefit if a second distinct proposal was approved – Whether it was illogical or legally unreasonable to accept the benefit provided by the first proposal given this contingency – Tribunal was entitled to exercise its discretionary powers as it did – Appeal dismissed
Aust Dig Appeal and New Trial [31]
Appeal and new trial – Appeal - general principles – Right of appeal – When appeal lies – Error of law – Particular cases involving error of law – Denial of natural justice – Where tribunal allowed respondent to re-open case and invited other parties to do so – Whether tribunal erred in ruling evidence appellant sought to adduce not sufficiently material – Whether this ruling amounted to a denial of procedural fairness – Tribunal entitled to rule on the relevance of the proposed evidence as it did – Appeal dismissed
Aust Dig Appeal and New Trial [22]
Cases and legislation cited
Environmental Protection and Biodiversity Conservation Act 1999 (Cth)
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2024] HCA 12 (2024)
418 ALR 152 applied.
Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 applied.
Pioneer Concrete (Qld) Ltd v Brisbane City Council (1980) 145 CLR 485 distinguished.
REPRESENTATION:
Counsel:
Appellant: J Pizer SC, Dr A Best First Respondent: M O'Farrell SC, E Peppler Second Respondent: Submitting appearance only Third Respondent: Submitting appearance only
Solicitors:
Appellant: Bleyer Lawyers Pty Ltd First Respondent: Ashurst Australia Second Respondent: Simmons Wolfhagen Third Respondent: State Litigation Office
| Judgment Number: | [2025] TASSC 7 |
| Number of paragraphs: | 80 |
Serial No 7/2025 File No 19/2024
CIRCULAR HEAD COASTAL AWARENESS NETWORK INC v
ACEN ROBBINS ISLAND PTY LTD (ACN 618 734 277),
CIRCULAR HEAD COUNCIL and THE BOARD OF THE ENVIRONMENT
PROTECTION AUTHORITY
| REASONS FOR JUDGMENT | MARSHALL AJ 27 February 2025 |
1 The appellant, Circular Head Coastal Awareness Network Inc, has appealed from a decision of the Tasmanian Civil Administrative Tribunal ("the Tribunal") in which the Tribunal varied the conditions of a development permit, granted by the second respondent, Circular Head Council ("the council"). The appellant has also appealed from a procedural decision of the Tribunal, refusing it permission to re-open its case.
2 The first respondent is the proponent of a proposal to develop and operate a wind energy facility on Robbins Island, which is located off the north west coast of mainland Tasmania.
3 The first respondent sought approval for its proposal by lodging a development application with the council, seeking approval for the proposal. The Tribunal, at paragraphs [5]-[7] of its decision of 27 November 2023, described, in part, the proposal as follows:
"5 ACEN Robbins Island Pty Ltd (ACN 618 734 277) proposes the use and development of a windfarm on Robbins Island. The windfarm would contain up to 100 wind turbine generators. The wind turbines would each have three blades. Each blade would have a maximum length of 86m giving a total rotor diameter of 172m. The blades would be attached to a tower with a hub height at a maximum of 126m, resulting in a blade-tip height above ground level of a minimum of 40m and a maximum of 212m. 6 The proposal includes a bridge across Robbins Passage from the end of Robbins Island Road. The bridge would have a single 4.4m wide lane with a span length of 1,290m and a maximum height of 8.2m. The overall length of the bridge with connecting ramps, will be 1,029m. Robbins Island Road will be upgraded to a width of 5.5m with a gravel surface, except for a 30m length where it meets West Montagu Road, which will be sealed, with a sealed turning circle at the end of the bridge. 7 The proposal also includes a wharf, which will extend for 509m off Back Banks Beach on the north shore of Robbins Island. The wharf is for the delivery of components of the wind turbines, particularly the blades, avoiding the need for road transport. A 100 metre long concrete ramp will connect the wharf terminal and internal road network."
4 For reasons which will soon become apparent, paragraph 7 of the above quote from the Tribunal decision is of significance for this appeal.
The council decision
| 5 | On 16 February 2023, the council granted a permit for the proposal, subject to various conditions. The appellant and other objectors appealed to the Tribunal from that decision. On 19 October 2023, in the course of the proceeding before the Tribunal, the appellant applied to re-open its |
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case. That re-opening request was refused by the Tribunal. The appeal in ground 4, which is discussed below, challenges the refusal of the re-opening request and claims that it constituted a denial of procedural fairness. The appeal challenges an aspect of the decisions of the Tribunal of 27 November 2023, in which it dismissed the appellant's appeal from the council's decision as varied by a further decision on 2 January 2024, wherein conditions for the first respondent's permit were varied.
6 The area of dispute raised by the appeal concerns the approval by the Tribunal of the building of a wharf as part of the proposal. The proponents seek that a wharf be built on Robbins Island as part of the project to facilitate optimally the transport of turbine blades. The transport of turbine blades by vessel to the wharf was considered by the first respondent to be much more preferable to the more difficult and infeasible (as it sees it) transport of very long blades from the port of Burnie, by road, to Robbins Island.
The planning scheme
7 The relevant State Planning scheme for the purposes of the proposal is the Circular Head Interim Planning Scheme 2013 ("the scheme").
8 Clause 7 of the scheme is headed "Planning Scheme Operation". Clause 7.2 is headed "Operation of Zones". It provides that:
"7.2.1 The planning scheme is divided into zones in respect of which the primary
controls for the use or development of land are set out."
9 Clause 7.5 is headed "Compliance with Applicable Standards". It provides that:
"7.5.1 A use or development must comply with each standard applicable in a zone,
specific area plan or code.7.5.2 A standard in a zone, specific area plan or code is an applicable standard if:
(a)
the proposed use or development will be on a site within a zone or the area to which a specific plan relates, or at a use or development to which the code applies; and
(b)
the standard deals with the matter that could affect, or could be affected by, the proposed use or development.
7.5.3 Compliance for the purposes of sub-clause 7.5.1 consists of complying with
the acceptable solution or the performance criterion for the standard.7.5.4 The Planning Authority may consider the relevant objective in an applicable standard to help determine whether a use or development complies with the performance criterion for the standard."
10 Under clause 8.1.1, an application must be made for any use or development for which a permit is required under a planning scheme. Under clause 8.8.1(b), the planning authority has a discretion to refuse or permit a use or development if the use or development complies with each applicable standard, but relies on a performance criterion to do so.
11 Clause 29 of the scheme is headed "Environment Management Zone" ("EMZ"). That provision states that it is the purpose of the zone to:
"Provide for the protection, conservation and management of areas with significant ecological, scientific, cultural or ascetic value, or with a significant likelihood of risk from a natural hazard."
12 Under clause 29.1.3(a)(iv), the use or development within the EMZ must be:
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"In accordance with the best practice management principles for the protection and conservation of an area of significant ecological, scientific, cultural or ascetic value, or with a significant likelihood of risk from a natural hazard…".
13 It is not in contest that the EMZ applies to the area around Robbins Island from the high water
mark.
14 Performance criterion "P1" in clause 29.3.2 of the scheme allows for discretionary permit use of land in the EMZ if a proponent of a proposal requires use of the land to "provide immediate access to a specific naturally occurring resource". See P1(a)(i) of clause 29.3.2. Here, the first respondent required the use of the land within the EMZ to provide access to wind to produce electricity.
15 Performance criterion "P3" in clause 29.4.3 was required to be satisfied before the proposal could be approved. P1 in clause 29.3.2 is a "use" standard. P3 in clause 29.4.3 is a "performance" standard.
Ground 1 of the appeal grounds
16 The appellant first claims in ground 1 of its appeal that the Tribunal erred in law in two ways. First, it claims that the Tribunal was required to assess alternative options for blade transport, other than the use of a wharf on site. It contended that so much was required by clause 29.4.3 at P3(b)(i) of the Circular Head Interim Planning Scheme ("the scheme"). The relevant part of the scheme has been described in submissions as performance criteria 3 ("P3"). Under P3, the following mandatory requirements are set out:
"(a) a building or structure must –
(i) not be visually apparent on the skyline; (ii) not be visually apparent above the adjacent vegetation canopy; (iii) not be visually apparent on the shoreline or a marine or aquatic water body, water course or wetland, where possible; and (iv) not be visually apparent as a result of the reflection of light from the external surface; or (b) the location of a visually apparent building or structure must –
(i) be essential and unavoidable in order to provide an overriding community benefit; or (ii) incapable of change due to exceptional circumstances."
17 It is not in dispute that part (a) of P3 was not able to be satisfied in the proposal. The appellant contends that the effect of P3(b)(i) of the scheme is that an assessment was required by the Tribunal of all alternative options for blade transport other than the presence of a wharf. The respondent rejects that proposition. Alternatively, it contends that if there was such a requirement, the Tribunal did assess whether the wharf was necessary due to blade transport by road not being feasible in all circumstances.
18 The first respondent notes that from the outset of the proposal, a wharf was one of the items of associated ancillary infrastructure. The Development Proposal Environment Management Plan ("DPEMP") for the proposal contained the following:
"Generally speaking, road infrastructure is a major constraint on the delivery of the oversized and over-mass loads required to be delivered to the project site. Using the wharf for delivery of these components allows for larger WTGs to be used as the size
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of the components that can be transported to the project site by water are larger than
those that can be delivered by road…".
19 In the DPEMP, there was a statement regarding the compliance of the bridge and the wharf with criterion P3(b) where the following was said:
"The bridge and the wharf will both necessarily be constructed over and within bodies of water and will therefore be visually apparent on the respective shorelines. However, given the relatively low height of the structures, their visibility from broader view heights will be visible to those around the Montagu area and will be consistent with the broader landscape. It should be noted that Back Banks Beach, where the wharf is located, has no current public access.
The nature of these structures is essential and unavoidable as the Project is located on an island with no existing access sufficient for the construction and operation of the Project. The proposed development will provide essential utility service for the community, as well as associated economic benefits to the region. More information on the broader community benefits are provided in Section 4.3 and in the DPEMP."
20 In Appendix D to the DPEMP, the following is set out regarding "traffic impact report":
"Owing to the large size of the wind turbine components and tail sections, a marine roll on/roll off (RoRo) landing and wharf facility is included in the Project on the eastern side of Robbins Island to facilitate component delivery.
Delivery of major infrastructure for the Project including all oversized WTG components will occur via the port facility…".
21 In March and April 2022, the Environment Protection Authority ("EPA") asked the first respondent to submit additional information about items, including the wharf. In July 2022, as a consequence, a supplementary DPEMP was submitted to the EPA, which included further information about the wharf.
22 When the appellant appealed to the Tribunal regarding the council's grant of a planning permit for the proposal, its grounds of appeal, insofar as they concern the wharf and transmission infrastructure, said as follows:
"The application is a piecemeal application and/or inadequate information has been
provided in support of the application:
(a) the proposed wind farm will require electricity transmission infrastructure to connect to the Tasmanian transmission network. The proponent has not sought planning approval for the electricity infrastructure that is required. The details of the electricity infrastructure that is required have not been provided, and the impacts of all the electricity transmission infrastructure that is required has not been assessed. Hence, the application is piecemeal and should not be approved. (b) the application in incomplete and/or not sufficiently precise: …
(iii) the length of the proposed wharf is not known."
23 The first respondent, on 14 June 2023, applied to the Tribunal to amend its development application to seek permission for the use and development of up to 100 wind turbine generators. The wharf remained in the amended proposal as an item of associated ancillary infrastructure.
24 The hearing before the Tribunal took place between 11 and 29 September 2023. During the hearing, the first respondent called evidence, including visual impact evidence, regarding the wharf and regarding compliance with criterion P3. That evidence included a statement from Ms Riley, a town
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planning expert, that the wharf was a "integral" element of the larger proposal, which would not be
feasible without it.25 In its opening submissions before the Tribunal, the appellant complained about the lack of details concerning the wharf. In its closing submissions, the appellant contended that criterion P3(b) of the scheme had not been satisfied because insofar as the wharf was concerned, it was "a visually apparent structure" which was "not essential or unavoidable in order to provide an overriding community benefit". It contended that the wind turbine components were able to be transported to Robins Island by road, without the need for a wharf.
26 In response, in its closing submissions to the Tribunal, amongst other things, the first respondent submitted that the wharf, as part of the proposal, was essential and unavoidable in order to provide an overriding community benefit or, in the alternative, was incapable of change in the "fairly exceptional circumstances" of the case being for a "significant renewable energy facility on an island…". The submissions also noted criterion P1 in clause 29.3.2 of the scheme, which it described as a "use standard" and contained a provision regarding "providing utility infrastructure of critical importance for the municipal or regional community or for Tasmania…". The submission went on to add that the bridge and the wharf are both critical in that they are required for the development of the project overall. As to the wharf, the submission stated that it was required for the delivery of oversized "WTG" [Wind Turbine Generator] components, including the proposed 86 metre blades and smaller infrastructure, and construction material and equipment to be delivered by ship. Importantly, the submission said that:
"Delivery of the components via the wharf is the only logistical option known to be
physically viable".
Later, the submission stated that:
"Preliminary analysis revealed material and disproportionate social, legal and financial
problems with road transport."
Overall, the first respondent urged upon the Tribunal that the bridge and the wharf were critical to the project.
27 During the course of oral submissions, the presiding member of the Tribunal asked counsel for the first respondent whether the Tribunal had before it a transport analysis undertaken by the first respondent. What occurred then is set out at [57] of the written submissions of the first respondent in this appeal. There, the following is said:
"That evening, by email, ACEN stated that it would provide a set of maps which were produced by its engineering consultants GHD for the preliminary analysis of transportation of oversized WTG components from the port at Burnie to Smithton, and it provided a link to such maps – being the Swept-Path diagrams. The email also said ACEN would make an application on the morning of the next day, to reopen its case for the limited purpose of tendering the Swept-Path diagrams."
28 The first respondent applied to re-open its case on 29 September 2023 to rely on the Swept- Path diagrams. The Tribunal permitted that course and accepted the Swept-Path diagrams into evidence. It also allowed objector parties to make any application to re-open their cases within seven days and to file evidence to respond to the Swept-Path diagrams, together with any submissions based on that evidence. The Swept-Path diagrams demonstrated the severe difficulties faced in transporting the blades by road to the site of the proposal.
29 On 6 October 2023, the appellant filed a submission in support of its application to re-open its case and a statement of evidence from its solicitor. The statement appended the Australian Energy Infrastructure Commissioner's 2022 annual report. In its submission, the appellant sough to re-open its case in response to the Swept-Path diagrams. It contended in its submission that the wharf was not
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essential, unavoidable or incapable of change during exceptional circumstances by reference to the Swept-Path diagrams and by reference to points of law. The first respondent opposed the appellant having leave to re-open its case. That was because it contended that the report which the appellant sought to rely on, was not responsive to the Swept-Path diagrams.
30 On 19 October 2023, the Tribunal refused the appellant's application to re-open its case. In its reasons for decision at [33], the Tribunal said:
"The evidence proposed by [the appellant] is at a very high level. It does not address the proposal. More specifically, it does not address the swept-path (sic) diagrams or road transport of turbine blades to the site, or respond directly to ACEN's evidence. The relevant passages of the annual report, and the conclusion the network intends they demonstrate, are really matters of common sense and property law. They do not materially assist us in the determination of the appeal. The issue of difficulty of transporting blades by road, as identified [in] the annual report at a general high level of detail, is a matter which might reasonably have been in the contemplation of the network in preparation of its case. The annual report could have been obtained and tendered during the course of evidence. The network has not sought to provide evidence in respect to the specific low-level detail of road transport from the port of Burnie to the site of the proposed wind farm, or to respond to the detail of ACEN's evidence."
At [34] the Tribunal concluded:
"We are not persuaded that the evidence is sufficiently material to permit the network to re-open its case to tender the report. The submissions accompanying that evidence fall along with the evidence."
31 The Tribunal dealt with the topic of the wharf in its 27 November 2023 decision at pars [410]- [412]. There, the Tribunal noted that the purpose of the wharf is to facilitate the transport of very large pre-fabricated elements of the wind turbines to the site, particularly the blades. It referred to the Swept- Path diagrams and cited from a previous decision of the Tribunal, which referred to the difficulties in transporting blades within relevant road reservations. At par [411] of its decision, the Tribunal said that:
"An effective refusal of the wharf would result in the need to transport large components of the wind turbines by road from the port of Burnie, which would cause significant social and environmental impact and disturbance, would require changes to the permit and would likely involve the Department of State Growth in its capacity as a road authority."
32 Further, later in its decision at [433], the Tribunal considered, given its earlier finding that criterion P3(a) was not satisfied, whether criterion P3(b) was satisfied. There, the Tribunal said P3(b) contains two elements that are framed in the alternative. It observed that the bridge and wharf must be essential and unavoidable in order to provide an overriding community benefit, or they must be incapable of change due to exceptional circumstances.
33 The Tribunal referred to Ms Riley's evidence that the location of the wharf is unavoidable in order to achieve its function and that it was integral to the proposal. In the context of criterion P3(b)(ii), at [440] of the Tribunal's decision, the Tribunal said:
"The fact that the site is on an island creates a circumstance which is special or uncommon, such that requirement for a bridge and wharf can be seen to be incapable of change due to that exceptional circumstance."
34 The appellant contends that the Tribunal should have first considered whether the wharf was required at all. It submits that criterion P3(b) required the Tribunal to assess and eliminate other realistic alternative modes of blade transport before concluding that the wharf was necessary. It contends that
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that was the appropriate approach given the use of the words "essential and unavoidable" and "incapable
of change" appearing in criterion P3(b).35 The first respondent points out in response that alternative methods of transport, such as road transport, were considered by the Tribunal. However, the appellant submits that although it was open to the Tribunal to accept that transport of blades by roads would have been inconvenient and burdensome, the Tribunal was required to go further and consider whether it was unworkable or impossible.
36 To carefully consider the competing submissions on ground 1, it is essential to consider the terms of performance criterion 3 and especially P3(b). That criterion is set out at [16] above.
37 Counsel for the first respondent notes that the terms of P3(b) do not require that the building or structure concerned be the only option left after assessing all alternative options. In other words, counsel submits that P3(b) does not require that all other options for transport of the blades be considered and rejected before a wharf can be said to be essential and unavoidable to provide the relevant community benefit. The appellant's argument assumes that a community benefit would be derived as a result of the proposal, albeit that it challenges that finding for the purposes of its submission under ground 2 below.
38 The first respondent's response is that criterion 3(b) requires an assessment by the Tribunal on the facts as to whether any structure is essential and unavoidable to provide an overriding community benefit. The first respondent contends that this does not require satisfaction by proof that all other theoretical options are impossible, such that the proposed structure is not considered essential without such proof. The first respondent also points out, it must be borne in mind that criterion P3(b) concentrates, as its subject matter, on the "location" of a building or structure. There was no evidence that the location on the eastern side of Robbins Island of the wharf was not suitable. No submissions were made to the Tribunal that some other location for the wharf was preferable such that it could be considered that the proposed location for the wharf was not essential or unavoidable in order to provide an overriding community benefit.
39 As counsel for the first respondent submits, criterion P3 of the scheme does not require an assessment of the need for a structural building, but an assessment of the location of the structural building. Counsel contends that clause 29.3.2 of the scheme is the provision which deals with whether a proposal contains a building or structure, the use of which is appropriate within the EMZ. Counsel submits that the need for a wharf was correctly assessed by the Tribunal, under clause 29.3.2. Counsel says that although the Tribunal appears to, once again, consider that matter under clause 29.4.3, matters not. It contends that no error of jurisdiction is thereby committed.
40 The appellant also contends that "location" includes a consideration as to whether the proposed development or proposed structure, should be located at the particular location that the proponent intends to locate it at, such that the Tribunal was required to consider not merely whether the wharf should be located where the proponent intends to locate it, but rather whether the wharf should be located on the proposed site at all.
41 The appellant contends that the Tribunal failed to correctly interpret P3(b) on the facts before it. Regarding P3(b)(i), the appellant observed that the Tribunal treated that proviso as requiring an answer to the question whether the wharf was essential and unavoidable to provide the benefit the proposal would deliver, thereby assuming a wharf was required as a necessary part of the proposal.
42 The appellant submits that the Tribunal should have construed P3(b)(i) as requiring it, first, to consider for itself whether a wharf was required at all, in the sense that it was necessary to assess and eliminate alternative modes of transport of blades to Robbins Island before deciding that a wharf was required. So much flowed, according to the appellant, from the words "essential and unavoidable". The appellant submitted that only if any alternatives to the wharf (such as transport by road) were considered
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and eliminated, that the Tribunal could properly conclude that the location of the wharf was "essential and unavoidable" to provide the stated benefit. If the same benefit could be realistically provided without the need for a wharf, the location of the wharf on Robbins Island would not be essential or unavoidable to provide the overriding community benefit.
43 The appellant contends that adopting its construction of P3 would lead to fewer developments in the EMZ that would detract from the objective of clause 29.4.3 to provide for the protection, conservation and management of areas with significant ecological, scientific, cultural or ascetic value.
44 The appellant says that the Tribunal accepted that the transport of blades by road would be inconvenient and burdensome, but did not say that it would be unworkable or impossible. Such that it did not positively exclude the option of transport of the blades by road. Having made an error as to the construction of P3(b)(i), according to the appellant, meant that the Tribunal made a material error of law which requires the Court to allow the appeal.
45 In response, the first respondent submits that there is nothing on the face of P3(b)(i) to show that the structure concerned must be one which can meet the requirements of that part of P3 only if all other viable options are first considered and rejected.
46 The first respondent submits that whether the location of a structure on a proposed site is essential or unavoidable, is a question of fact for the Tribunal to determine and will necessarily vary from case to case. The first respondent also submits that it is unrealistic to import into P3 a requirement for a proponent to prove all theoretical alternatives to an aspect of a proposal are impossible.
The Tribunal's findings relative to P3(b)(i)
47 The Tribunal first mentioned the wharf in its 27 November 2023 decision at [7] of its reasons. That paragraph is set out at [3] of these reasons above. The Tribunal next discussed the wharf in a way relevant to this appeal at [433] of its reasons, and the next few following paragraphs. At [436], the Tribunal said that:
"P3(b) relates to the visual appearance which might dominate or detract from the
appearance or character of an area of significance."
It said that "in context", the reference to overriding community benefit would be to a community benefit which overrides the domination or detraction from the appearance or character of the area of significance. That is, a community benefit which is so significant as to justify domination or detraction.
48 At [438] of the Tribunal's decision, it said as follows:
"Ms Riley's evidence was that the locations of the bridge and the wharf are unavoidable in order to achieve their functions. They are integral to the proposal. Their precise location might be varied with the engineering detail required for building approval, but it would make no difference to the visual intrusion."
49 Fairly read, the Tribunal at the above passage of its reasons, is to be taken as accepting the evidence of Ms Riley that the location of the wharf is unavoidable to achieve its function. From that acceptance, the Tribunal has deduced that the wharf is integral to the proposal. That is consistent with the submission contained in the DPEMP for the proposal, as set out at [9] above of these reasons. It is also consistent with the evidence before the Tribunal in the form of the Swept-Path diagrams, which showed the enormous difficulties involved in transporting the blades to the site of the proposal by road.
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Conclusion on ground 1 regarding P3(b)(i)
50 The Court accepts the submission of counsel for the appellant that P3(b) is not only concerned with where a structure is located, because there is always the possibility that a planning authority may consider that the proposed structure should not be located within the proposed project at all, notwithstanding that it did not offend the "use" requirements in P1 in clause 29.3.2 of the scheme.
51 The next question to be answered is whether the Tribunal correctly interpreted P3(b)(i) as requiring the finding that the wharf was integral to the proposal for the criterion to be satisfied without first ruling out all other realistic options.
52 The Tribunal was required to consider whether the situating of a wharf on the location of the proposal was essential and unavoidable to provide the relevant community benefit. That benefit is the provision of extra power to the inhabitants to the State of Tasmania. Read fairly, and in context, the Tribunal's reasons, albeit extremely brief, should be interpreted as the Tribunal finding that the wharf was essential and unavoidable as part of the proposal because it was integral to the proposal, meaning that the proposal would not go ahead without the wharf.
53 For the above reasons, the first aspect of the appellant's challenge to the decision of the Tribunal under ground 1 is rejected. Although it is unnecessary to consider P3(b)(ii), as it and P3(b)(i) are not cumulative but alternative requirements, out of abundance of caution, the Court now turns to that question.
54 The appellant contends that the Tribunal was not capable of being satisfied that the requirement for the wharf to be located on site was incapable of change due to exceptional circumstances.
55 Paragraph [440] of the Tribunal's reasons is set out at [33] above in these reasons, but bears repeating for the current discussion. It says:
"The fact that the site is on an island constitutes the circumstance which is special or uncommon, such that the requirement for a bridge and wharf can be seen to be incapable of change due to that exceptional circumstance."
Earlier, at [438] of its reasons, the Tribunal had decided that the wharf was integral to the proposal. Given that circumstance, the provision of a wharf in conjunction with a bridge, is not capable of change due to the exceptional circumstance that the proposed site is on an island. It if it was not on an island, a wharf would not, in all likelihood, be required. Fairly read, that is what the Tribunal is alluding to at [440] of its reasons for decision. In that context, there was no specific reason to rule out any other material form of transportation of the blades in interpreting P3(b)(ii).
56 At [415] of the reasons for decision of the Tribunal, the Tribunal said as follows:
"P1(a)(iv) relates not merely to the provision of the utility, but to the provision of utility infrastructure, and requires that it be infrastructure of critical importance. It focuses not the on the nature of the utility in a general sense, but specifically on the infrastructure provided by the proposal. While we are satisfied that the proposal provides an essential utility of significance for Tasmania, it is not clear that the infrastructure is of critical important for the municipal or regional community, or for Tasmania. It will no doubt provide benefits, but the use of 'critical importance' suggests some significant adverse outcome or consequence if the infrastructure is not provided. The absence of the bridge and wharf infrastructure might well result in the wind farm not proceeding which would have implications for the State in terms of power production and meeting the Tasmanian Renewable Energy target. However, the evidence did not disclose that Tasmania would experience energy shortages or not meet the renewable energy target if the proposal does not go ahead. That is, the facilitation of the wind farm by the existence of the proposed infrastructure in the Environmental Management Zone is not of critical importance to Tasmania."
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57 During a discussion about whether P1(a)(iv) of clause 29.3.2 (being part of the "use" requirement) was satisfied, the Tribunal said that it was satisfied that the proposal would provide significant benefits to the community. It said, however, that the providing of such a benefit was not of critical important to Tasmania because the State would not experience power shortages if the proposal did not go ahead. It was in that context, assuming that the proposal would not go ahead, that the Tribunal used as an example of that scenario, the situation that would apply if the bridge and wharf were not part of the proposal. In observing that "the absence of the bridge and wharf might well result in the wind farm not proceeding", the Tribunal was theorising about a possible circumstance which would see the project not go ahead. It was using the lack of a bridge and wharf as an example of that circumstance. No occasion arose at that point of the Tribunal's discussion, to make a firm finding about whether it would "might well" be the case that the wind farm would not proceed without the wharf and bridge, or whether it was rather "in fact" the case that the wind farm would not proceed without the wharf and the bridge. Read fairly and in proper context, there is no conflict between the "might well" result comment in [415] and the "integral" finding in [438].
58 It follows the second aspect of ground 1 is also rejected and therefore ground 1 is rejected in
totality.
Ground 2
59 The appellant's ground 2 of the appeal is as follows:
"The Tribunal's decision that the location of the wharf is essential and unavoidable, in order to provide an overriding community benefit, under clause 29.4.3 P3(b)(i) and incapable of change due to an exceptional circumstance under clause 29.4.3 P3(b)(ii) was irrational and legally unreasonable."
60 An analysis of ground 1 has shown that the decision of the Tribunal that criterion P3 was complied with, was one that was open to it on the evidence. A decision that was open on the evidence is not one that is usually irrational or legally unreasonable. Irrationality and unreasonableness, as grounds of review, are concepts with high bars. A discretionary decision with cogent evidence to support it, will rarely be irrational or unreasonable. This is not an occasion to accept an invitation to effectively engage in disguised merits review of the Tribunal's decision. See, for example, Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [23]-[31], per French CJ and [72] per Hayne, Kiefel and Bell JJ.
61 The Tribunal had evidence before it about the wharf in the form of the Swept-Path diagrams, and evidence from town planning experts, including Ms Riley. The content of the DPEMP, with the wharf highlighted, was also before it. The Tribunal had the benefit of submissions about the wharf. From that material, the Tribunal was entitled to find, as it did, that the wharf was required and was integral to the proposal, and/or not capable of change. The material before the Tribunal enabled it to rationally conclude that road transport was problematic and that the optimal method of transporting the blades was by use of the wharf.
62 The first contention raised under ground 2 is the finding of the Tribunal that the proposal would provide "an overriding community benefit" was illogical given that the project would not provide any benefit unless a separate application for a transmission line was successful. The Tribunal rejected the submissions put to it that the proposal was "a piecemeal application". It noted that the transmission line was geographically distinct from the wind farm and would involve "a distinct and separate use of land". It also observed that the application for the wind farm would not affect decision making in relation to a subsequent development application for any transmission line. The effect of the Tribunal's reasoning was that the two applications were discrete.
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63 It was not in contest before the Tribunal, or before the Court, that the provision of a community benefit of access to more renewable energy from the wind farm was wholly dependent on the subsequent approval and construction of transmission infrastructure. The appellant contends that it was not open to the Tribunal to conclude that the proposal would confer that community benefit through the provision of renewable energy to the Tasmanian community, given that it could not provide any benefit without a transmission line. The finding of the Tribunal that P1(a)(b) was satisfied therefore, so the argument ran, as unreasonable given that the project would not provide a community benefit without the transmission line.
64 Counsel for the appellant relied on the following passage in the judgment of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at [91], where his Honour said:
"Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first."
65 The first observation to be made about the Pioneer Concrete (Qld) Pty Ltd case, is that there was no evidence before the court that objectors in the current matter deferred any relevant objection in contemplation of the second application in respect of the transmission infrastructure. Any application for transmission infrastructure will be dealt with on its own merits as with any possible future challenge to the proposal, which may arise after Commonwealth ministerial approval (assuming it happens) under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
66 The first respondent contended that it was for the Tribunal to consider what benefits would result from the provision of a significant amount of renewable energy, while excluding from consideration the need to have a transmission line to achieve those benefits. The first respondent observed that it was part of the DPEMP and all relevant assessment documents that the transmission line would be a separate, but related project. All objectors before the Tribunal appeared to understand that that was the process, as did the Tribunal, according to the first respondent.
Consideration of the first aspect of ground 2
67 The Court considers that the first aspect of ground 2 of the appeal is misconceived. The finding at [436] that the project would provide a "community benefit" of relevant significance, and the finding at [415] that the project would "provide an essential utility of significance for Tasmania" were accurate findings. They merely restate common sense. Extra renewable resources into the power grid would result from a functioning wind farm. The reasons of the Tribunal were given on the assumption of a future functioning wind farm. They could not be realistically considered in any other way. That is the relevant scenario governing the entire application, which was before the Council and the objection process undertaken by it and the Tribunal. If the submission of the appellant on this aspect of the appeal was upheld, it would be virtually impossible for any proposal to be given approval if it were dependent on other approvals, for example, transmission infrastructure approval or approval by the relevant Commonwealth minister.
68 As counsel for the first respondent submitted, it is not uncommon for major infrastructure projects to require more than one approval to be granted and to occur in order for the benefits of the
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project to be realised. The first respondent contended, correctly, that the Tribunal did not err in concluding that it was appropriate to exclude consideration of the transmission line from its consideration of the matter before it.
Second aspect of ground 2
69 The second aspect of ground 2 deals with the allegation that the Tribunal's observations at [440], referred to at [33] above, was an irrational or unreasonable finding. It will be recalled that there, the Tribunal made the observation that the fact that the site is on an island creates a circumstance which is special or uncommon, such that the wharf can be seen to be incapable of change due to exceptional circumstances.
70 That observation was made in the context of discussing P3(b)(ii). Accordingly, if the first aspect of ground 2 of the grounds of appeal is rejected, as it has been, it is not essential for the Court to examine the second aspect of ground 2. However, it does so out of an abundance of caution.
71 Earlier at [55], the Court discussed whether the Tribunal had made an error of law in the context of ground 1 regarding what the Tribunal said at [440]. There, the Court set out the context in which [440] occurs. The fact that there are at least 14 other islands in the Circular Head coastal region, does not detract from the finding of the Tribunal that the fact that the site is on an island creates a special or uncommon circumstance, which makes the requirement for the bridge and wharf incapable of change due to that exceptional circumstance. It was open for the Tribunal to find, in context, at least of the building of the wharf, that the fact that the wharf was on an island was a special circumstance, given that a wharf would likely be required in conjunction with a bridge. Further, as counsel for the first respondent point out in their written submissions:
"It can reasonably be expected that the great majority of permit applications received relate to sites that are not on islands, thereby making this application an uncommon one."
72 The Court is of the view that there is no merit in the second aspect of ground 2.
73 The submissions in support of ground 2 that relate to criterion 3(b)(ii) need not be considered given that the reasoning of the Tribunal in relation to criterion 3(b)(i) was not illogical or unreasonable. The same may be said for its conclusion.
Ground 4
74 Ground 4 is as follows:
"The Tribunal erred in law by failing to accord natural justice to [the appellant] by declining to allow [the appellant] to re-open its case to respond to the swept-path (sic) diagrams tendered by [the first respondent]".
75 This ground of appeal is also devoid of merit. When the Tribunal permitted the first respondent to re-open its case, the first respondent tendered the Swept-Path diagrams. The Tribunal invited other parties to seek to re-open their cases, as a consequence. The appellant sought to re-open its case by relying of an affidavit of its solicitor, which was attached to the annual report of the Australian Energy Infrastructure Commissioner for the year ending December 2022. As referred to earlier in these reasons, the Tribunal considered that report and found it to be of no assistance. See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, (2024) 418 ALR 152 at [12]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ; regarding the issue of materiality.
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76 The appellant desired to tender the report and make submissions about it. On 19 October 2023, as discussed above, the Tribunal refused the appellant's application to re-open. In its ruling, it said it considered the evidence sought to be tendered and did not find it sufficiently material to the case. Having expressed that view, the Tribunal was indicating that it was not assisted by that material, as it would not have affected the outcome of the case or informed it in relation to any material finding of fact.
77 The ruling of the Tribunal not to permit the appellant to re-open its case, would not have materially affected the outcome of the Tribunal's deliberations, as the evidence the appellant sought to rely on was not found by the Tribunal to be of any assistance to it after it considered it. If the re-opening had have been allowed and the report had been tendered, no different outcome would have ensued. The Tribunal not only had the benefit of the proposed evidence, but also submissions in support of it, before it. The view that the contents of the proposed evidence was of no assistance to the Tribunal is one which was open to it, based on the fact that the report did not join issue in any meaningful way with the matters raised by the Swept-Path diagrams.
78 In the circumstances, no denial of procedural fairness occurred by reason of the Tribunal not permitting the appellant to re-open its case. There is no merit in ground 4.
79 It is noted that the second and third respondents filed Notices of Submission.
| Orders | |
| 80 | Having regard to the foregoing, the Court will order as follows: |
1 The appeal is dismissed.
2 Liberty to apply is reserved on the question of costs.
0
4
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