Cumming v Minister for Planning - [2020] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0013

HAMISH CUMMING

First Applicant

ADAM WALTON

Second Applicant

THE MINISTER FOR PLANNING

First Respondent

WESTWIND ENERGY PTY LTD
(ACN 109 132 201)

Second Respondent

KELLIE WALTON

Third Respondent

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JUDGES:

TATE, McLEISH and OSBORN JJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

15 June 2020

DATE OF JUDGMENT:

20 August 2020

MEDIUM NEUTRAL CITATION:

[2020] VSCA 208

JUDGMENT APPEALED FROM:

[2019] VSC 811 (Garde J)

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PLANNING AND ENVIRONMENT – Appeal – Judicial review – Wind farm –Environmental effects assessment – Ministerial call in of permit application – Panel report – Brolga habitat protection buffers – Wind turbines – Decision to grant permit on conditions – Whether Minister denied applicants procedural fairness by not disclosing letter received from respondent after panel hearing – Whether Minister failed to consider amended planning scheme – Whether permit missing mandatory conditions invalid – Whether slip rule could be used to correct permit to impose missing mandatory conditions – Whether Minister’s assessment under Environment Effects Act 1978 unreasonable, irrational or illogical having regard to Brolga habitat model – No denial of procedural fairness in granting permit after receipt of letter without giving objectors further opportunity to be heard – No failure to consider amended planning scheme provisions – Failure to include mandatory noise monitoring conditions did not render permit wholly invalid – Open to correct permit by substituting mandatory conditions pursuant to s 71 of the Planning and Environment Act 1987 – Minister’s assessment of EES open and not shown to be unreasonable – Planning and Environment Act 1987 ss 71, 72, 87, 97B, 97E, 97F, 97I, 97J; Environment Effects Act 1978 ss 8, 9 – Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; South Australia v O’Shea (1987) 163 CLR 378 – Leave granted – Appeal dismissed.

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APPEARANCES:

Counsel

Solicitors

For the Applicants

Mr S Morris QC with

Mr C Tran

D S T Legal

For the First Respondent

Ms J Forsyth SC with

Ms C van Proctor

Victorian Government Solicitors’ Office

For the Second Respondent

Ms S Brennan SC with

Mr E Nekvapil

White & Case

TATE JA

McLEISH JA

OSBORN JA:

Introduction
1           The second respondent (WestWind) operates wind farms which generate electricity. It is the proponent of a project to construct and operate a wind farm called the Golden Plains Wind Farm on 16,739 hectares of agricultural land extending generally from the south-west to the south-east of the town of Rokewood. The overall scale and general proposed layout of the proposal is shown in the attached image comprising Appendix 1.
2           The applicants for leave to appeal oppose the project. The first applicant, Mr Cumming, lives at Darlington approximately 75 kilometres to the west of Rokewood on the western plains of Victoria. He is critically concerned with potential impacts of the wind farm upon Brolga, a native Australian crane.
3           The second applicant, Mr Walton, lives and works with his wife as farmers on land in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] VSCA 208
Decision Date: 20 August 2020

CaseChat Overview and Summary

Cumming v Minister for Planning is an appeal against a decision by the Minister for Planning to grant a permit for the construction and operation of a wind farm. The applicants, Cumming, sought judicial review of the decision on various grounds, including procedural fairness, the failure to include mandatory conditions, and the reasonableness of the assessment of the environmental effects. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the Minister denied the applicants procedural fairness by not disclosing a letter received from the respondent after the panel hearing, whether the Minister failed to consider the amended planning scheme, whether the omission of mandatory conditions rendered the permit invalid, and whether the Minister's assessment of the environmental effects was unreasonable. The applicants argued that the Minister's failure to disclose the letter after the panel hearing denied them procedural fairness. They also contended that the Minister failed to consider the amended planning scheme provisions and that the omission of mandatory noise monitoring conditions rendered the permit invalid. Finally, the applicants submitted that the Minister's assessment of the environmental effects was unreasonable, particularly in relation to the Brolga habitat model.

The court found that there was no denial of procedural fairness in the Minister's failure to disclose the letter, as the Minister had already considered the letter before the panel hearing. The court also held that the Minister did not fail to consider the amended planning scheme provisions, as the Minister had considered the relevant provisions and found that they did not apply to the permit. The court further found that the omission of mandatory noise monitoring conditions did not render the permit wholly invalid, and that the permit could be corrected by substituting the mandatory conditions pursuant to s 71 of the Planning and Environment Act 1987. Finally, the court held that the Minister's assessment of the environmental effects was open and not shown to be unreasonable, particularly in relation to the Brolga habitat model. The appeal was dismissed, and leave to appeal was granted.

Orders