Cumming v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S ECI 2018 02896

HAMISH CUMMING & ORS (according to the attached Schedule)	Plaintiffs
v
THE MINISTER FOR PLANNING	First Defendant
– and –
WESTWIND ENERGY PTY LTD (ACN 109 132 201)	Second Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	21–22 October 2019
DATE OF JUDGMENT:	16 December 2019
CASE MAY BE CITED AS:	Cumming & Ors v Minister for Planning & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 811

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PLANNING AND ENVIRONMENT – Wind farm – Environmental effects assessment – Ministerial call in of permit application – Panel report – Brolga habitat protection buffers – Jurisdictional error – Legal unreasonableness – Application of habitat model – Procedural fairness – Letter to Minister not disclosed to objectors – Practical injustice – Materiality – Non-compliance with application requirements – Failure by Minister to impose mandatory conditions – Slip rule – Relevant considerations – Corrections to permit conditions – Whether valid – Planning and Environment Act 1987 (Vic) ss 47, 71, 97B, 97E, 97F – Environment Effects Act 1978 (Vic) ss 8, 9 – Victorian Civil and Administrative Tribunal Act 1988 (Vic) s 119 – Interpretation of Legislation Act 1984 (Vic) s 28(2)(d) – Supreme Court (General Civil Procedure) Rules 2015 r 36.07.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S Morris QC and Mr C Tran	DST Legal
For the First Defendant	Ms J Forsyth SC and Ms C Van Proctor	Victorian Government Solicitor
For the Second Defendant	Ms S Brennan SC and Mr E Nekvapil	White & Case

HIS HONOUR:

Introduction

The plaintiffs seek judicial review of the following decisions made by the Minister for Planning (‘Minister’):

(a) the assessment made on 23 October 2018 by the Minister (‘Minister’s assessment’) of the proposed Golden Plains Wind Farm (‘project’) under the Environment Effects Act 1978 (Vic) (‘EE Act’);

(b) the grant by the Minister on 21 December 2018 of permit PA1800266 (‘permit’) for the project to the second defendant, WestWind Energy Pty Ltd (ACN 109 132 201) (‘WestWind’); and

(c) the corrections to the permit on 7 January 2019 (‘first correction’) and 17 January 2019 (‘second correction’) by the Minister’s delegates under s 71(1)(a) of the Planning and Environment Act 1987 (Vic) (‘PE Act’).

Background

The project involves the construction and operation by WestWind of a wind farm of up to 228 wind turbines on 16,739 ha of agricultural land near the town of Rokewood, Victoria, about 60 km northwest of Geelong. If constructed, the project would be the largest wind farm in Australia and would have a generation capacity of up to 1000 megawatts.

WestWind is the proponent of the project. It sought a permit for the project by application dated 17 August 2017 (‘permit application’) made under cls 35.07 and 52.32 of the Golden Plains Planning Scheme (‘planning scheme’). A permit is required under the planning scheme for the use and development of a wind energy facility.

On 19 September 2017, the Minister called in the permit application under s 97B of the PE Act.

WestWind prepared an Environment Effects Statement (‘EES’), which was exhibited for public comment from 4 May to 18 June 2018.

The panel process

On 17 June 2018, the Minister appointed a panel (‘panel’):

(a) to hold an inquiry into the environmental effects of the project under s 9(1) of the EE Act; and

(b) to hear the parties and report findings on the permit application under s 97E of the PE Act.

On 21 June 2018, the Minister referred all submissions received in respect of the project to the panel.

The panel considered 27 submissions to the EES and 29 submissions concerning the permit application. It held a public hearing over nine days between 30 July and 10 August 2018. On 26 September 2018, the panel published its report (‘panel report’) including draft permit conditions.

The Minister reviewed the panel report and signed the Minister’s assessment. Subsequently, WestWind sent a letter dated 9 November 2018 to the Minister (‘letter’). The letter was not copied or shown to other submitters to the panel. The Minister subsequently issued a conditional permit to WestWind. Conditions in the permit were corrected twice in January 2019 by delegates of the Minister.

The parties and their submissions

The first plaintiff, Hamish Cumming, lives at Darlington in Victoria and is very concerned about the impact of the wind farm on the Brolga – an Australian wetland bird. He made extensive written and oral submissions to the panel and cross-examined witnesses as to the impact of the project on Brolgas.

The second and third plaintiffs, Adam and Kellie Walton, live and work as farmers on adjoining land in close proximity to the project. They made written and oral submissions to the panel objecting to the project. They appeared by counsel, and called an acoustic and health expert to give evidence on their behalf.

During the panel hearing, WestWind called expert evidence and made submissions about the impact of the project on Brolgas and the noise impacts of the project.

At the panel’s request, WestWind provided maps, prepared by an ecological consulting firm, Brett Lane & Associates (‘BLA’), showing how five different turbine setback scenarios could be applied to the project. One map showing the BL&A habitat model buffers (‘BLA model’), was tabled at the hearing on 10 August 2018 and marked by the panel as Document 86.

The Minister is the Minister administering the EE Act and the PE Act. The Minister either personally or by a delegate made the decisions and corrections that are challenged in this proceeding. The Minister acted on the advice of the Department of Environment, Land, Water and Planning (‘DELWP’).

Relevant statutory law

The panel was appointed under s 9(1) of the EE Act. Section 9 of the EE Act provides:

(1)The Minister may...appoint one or more persons to hold an inquiry…into the environmental effects of any works or proposed works to which this Act applies.
(2)The Minister may at any time invite and receive comments on the environmental effect of any works or proposed works from the public…

Section 97B(1)(c) of the PE Act permits the Minister to direct the responsible authority to refer an application for a permit to the Minister for decision if it appears to the Minister:

that the use or development to which the application relates is also required to be considered by the Minister under another Act…and that consideration would be facilitated by the referral of the application to the Minister.

The Minister must refer objections and submissions received in respect of an application for a permit to a panel under s 97E(1) of the PE Act. The panel must give the applicants, objectors and submitters a reasonable opportunity to be heard.[1] The panel must report its findings and recommendations to the Minister.[2]
[1]PE Act s 97E(2A).
[2]PE Act s 97E(4).

Clause 52-32 and Amendment VC149 to the Victoria Planning Provisions

Clause 52.32 of the Victoria Planning Provisions regulates wind energy facilities.

The purpose of cl 52.32 is to facilitate the establishment and expansion of wind energy facilities in appropriate locations, with minimal impact on the amenity of the area.

Under cl 52.32-2, a permit is required to use and develop land for a wind energy facility. Clause 52.32-4 lists the plans, reports and information that must accompany an application. Clause 52.32-6 sets out the decision guidelines that the responsible authority must consider.

On 29 August 2018, the Minister approved Amendment VC149 to the Victorian Planning Provisions, having exempted the amendment from public exhibition.

On 4 October 2018, Amendment VC149 commenced. It introduced mandatory requirements that apply if an application is made, or a permit is issued to use and develop land for a wind energy facility.

Clause 52.32-4 contained new requirements for a permit application:

An application must be accompanied by the following information:
Mandatory noise assessment
•A pre-construction (predictive) noise assessment report demonstrating that the proposal can comply with the New Zealand Standard[3]…
•An environmental audit report of the preconstruction (predictive) noise assessment report prepared…by an environmental auditor…The environmental audit report must verify that the acoustic assessment undertaken for the purpose of the pre-construction (predictive) noise assessment report has been conducted in accordance with the New Zealand Standard…

[3]New Zealand Standard NZS6808:2010, Acoustics–Wind Farm Noise (‘New Zealand Standard’).

Clause 52.32-5 contained the following new mandatory conditions to be included in a permit:

A permit to use or develop land for a wind energy facility must include the following conditions:
• A post-construction noise assessment report prepared in accordance with the New Zealand Standard…demonstrating whether the wind energy facility complies with the Standard, must be submitted to the Responsible Authority. If the wind energy facility is constructed in stages, additional post-construction noise assessment reports for each stage must be submitted to the Responsible Authority.
• Each post-construction noise assessment report must be accompanied by an environmental audit report…by an environmental auditor…The environmental audit report must verify that the acoustic assessment undertaken for the purpose of the post-construction noise assessment report has been conducted in accordance with the New Zealand Standard…

Panel report – Brolga

The panel had considerable evidence concerning the Brolga population and habitat in the area of the proposed wind farm. In his report to the panel, Mr Brett Lane, ecologist, noted:

(a) A significant proportion of wetlands within a radius of investigation of 10 km from the site (‘ROI’) had been permanently drained and were no longer suitable for future Brolga use;

(b) there was an estimated population of eight pairs of Brolga in the southern and eastern parts of the ROI;

(c) only part of the wind farm is within the Brolga’s usual range; and

(d) three breeding wetlands exist within the south-eastern section of the proposed wind farm.

A table in Mr Lane’s report listed 136 locations within the ROI that had been assessed as breeding sites. Of these, 67 were assessed as unsuitable habitat for breeding. 69 wetlands were considered as potentially suitable habitat for breeding with a habitat quality ranging from high to low.

The panel stated its findings as to Brolga buffer areas in these terms:

The [panel] was not persuaded that [WestWind] has demonstrated with a high degree of confidence that the Brolga home ranges on the [project] site justify a reduction in the buffers to 700 metres. Accordingly, the [panel] requested [WestWind] to provide information on the impacts of alternative buffers, including the default 3.2 kilometre buffers recommended under the Brolga Guidelines, and the approach developed by [BLA] (which has been accepted by previous panels) of modifying the default buffers by applying a polygon around all wetlands within 3.2 kilometres of a known breeding site...
While the default 3.2 kilometre buffers would deliver a substantial reduction in the impacts on Brolga, the consequences for the [project] would be profound. Up to 117 turbines would be lost, threatening the viability of the [project]. The [BLA model] will result in the loss of up to 47 turbines, or 245MW of renewable energy generation capacity.
What is less clear is the impact on Brolga. In the absence of empirical site- specific data that enables the [panel] to fully understand the impacts of the [project] (including the proposed and alternative buffers) on Brolga, [WestWind] is effectively asking the [panel] to rely on predictions of collision risk modelling in assessing those impacts. The collision risk modelling involves significant uncertainty.
In light of that uncertainty, the [panel] recommends the [project] be modified to provide [BLA model] buffers turbines around the known Brolga breeding wetlands on, and within 3.2 kilometres of, the [project] site. The [panel] considers that this strikes a reasonable balance between facilitating the [project] and the many benefits that it will deliver, against the need to protect the Victorian Brolga population.[4]

[4]Panel report executive summary.

In its assessment of Brolga impacts, the panel noted:

[The Brolga Guidelines][5] set out the process for investigating and mitigating potential impacts of wind farms on Brolga. [They] indicate that wind farms impact on Brolgas in three ways:
•         direct effects, particularly mortality as a result of collision with turbines
•         indirect effects, including habitat avoidance
•         barrier effects.

[5]Interim Guidelines for the Assessment, Avoidance, Mitigation and Offsetting of Potential Wind Farm Impacts on the Victorian Brolga Population 2011, Department of Sustainability and Environment, Revision 1 February 2012 (‘Brolga Guidelines’).

In discussing possible Brolga buffer areas, the panel said:

The [panel] requested [WestWind] to prepare five plans to illustrate alternative buffers:
• [WestWind]’s proposed final turbine layout - minimum 700 metre buffers (Document 83)
•1000 metre buffers, which DELWP Environment requested [WestWind] to model during the course of the EES exhibition process (Document 84)
•1,135 metre buffers based on the Biosis home range mapping for Penshurst and Mount Fyans wind farms (Document 85)
•[BLA model] buffers (Document 86)
•the default 3.2 kilometres set out in the Brolga Guidelines (Document 87).[6]

[6]Panel report, 33.

The panel described the BLA model in these terms:

The [panel] understands that the [BLA model] defines the breeding home range as a polygon, calculated as follows:
• a 400 metre radius around the breeding wetland site
•all wetlands within 3.2 kilometres from a breeding site are identified and included in the mapped home range buffer
•a further 300 metre disturbance buffer is placed around this home range.[7]

[7]Ibid.

The panel then set out the effect of the project on turbine and brolga numbers of different buffers in a table:

Turbines and Brolgas lost under different buffer scenarios[8]
[8]Ibid.

Buffer Option
Turbines

Lost
Brolgas
Lost

No buffers

0

10.48

Final proposed turbine layout

20

9.25

Biosis average home range buffer

29

8.36

[BLA model]

67

5.75

Default 3.2 kilometre buffer

137

2.09

After further discussion, the panel decided:

In the circumstances, the [panel] is satisfied that the application of the [BLA model] should satisfy the Guideline’s objectives. While a map of the [BLA model] buffers has been provided (Document 86), the [panel] considers that the final boundaries of the turbine free polygons should be agreed by DELWP Environment.
[WestWind] may choose to undertake further assessment and investigation of Brolga breeding activity and home range mapping at the [project] site, to provide a more sound, empirical evidence base to support reduced buffers and the provision of additional turbines. This would require a future amendment to the permit, which could be assessed through an independent process.[9]

[9]Ibid 38.

The panel found:

In the absence of site-specific investigations that provide a high degree of confidence that [WestWind]’s proposed 700 metre buffers are justified, turbine free buffers should be based on the [BLA model] polygons.[10]

[10]Ibid.

The panel’s recommendations included:

Modify the [project] generally in accordance with the plan shown in Document 86, to apply the [BLA model] turbine free buffer to each of the 27 Brolga breeding sites identified in and within 3.2 kilometres of the wind farm site.
Require [WestWind] to clearly map the full extent of the turbine free buffers, with the final home range polygon boundaries determined in conjunction with [DELWP – Environment].[11]
[11]Ibid 39–40.

Panel report – noise impacts

Clause 52.32 of the planning scheme provides that operational noise associated with wind farms must be assessed and comply with the New Zealand Standard. This means that wind farms must comply at all times and in all conditions with the following noise limits:

•general limit – 40 dB L_A90, or the background sound level plus 5 dB, whichever is the greater
•high amenity limit – 35 dB L_A90, or the background sound level plus 5 dB, whichever is the greater.[12]

[12]Ibid 63.

Although a noise and vibration assessment had been undertaken in accordance with the New Zealand Standard, the panel identified the need for more comprehensive and robust background noise monitoring. This led it to find that:

Further background noise monitoring should include a minimum of 4,032 valid data points collected for each site, analysed by 24 hour and night (10 pm to 7 am) only periods, and for each time sector analysed for each 45 degree wind rose direction.[13]

[13]Ibid 72.

After an analysis of environmental effects, the panel concluded:

On balance, the [panel] considers that given the impacts of the [project] can largely be managed to an acceptable level, and given the strong policy support in the planning scheme and other adopted government policy for renewable energy projects, a permit should be granted.
Consistent with the conclusions on environmental effects, the [panel] recommends:
Issue planning permit PA170266 for the [project] subject to the permit conditions contained in Appendix F.[14]
[14]Ibid 135.

Panel recommended conditions

Appendix F to the panel report contains the 101 permit conditions recommended by the panel. Conditions 1(a) – (c) related to the turbine specifications and locations, and to the establishment of turbine free brolga buffer zones:

1.Before development starts, development plans must be submitted to, approved and endorsed by the responsible authority. When endorsed, the plans will form part of this permit.
The plans must be fully dimensioned and drawn to scale. The plan…must include:
a.the final location, specifications, materials and finishes of the wind energy facility
b.a maximum of 228 turbines (reduced as required to comply with condition 1(c)) with the following specifications:
i.maximum blade tip height of up to 230 metres above ground level
ii.minimum blade tip clearance from ground level no less than 40 metres.

c.turbine free buffer zones for Brolga generally in accordance with Document 86…with the final boundaries to be agreed with DELWP Environment[15]

[15]Ibid 155.

Condition 3 required compliance with the endorsed plans, and provided:

3.Except as permitted under conditions 5 and 7, the use and development must be generally in accordance with the endorsed plans. The endorsed plans must not be altered or modified without the written consent of the responsible authority.[16]

[16]Ibid.

Conditions 5(a), (c), 7 and 8 dealt with the micro-siting of turbines and provided:

5.Before development starts, a Micro-Siting Plan must be submitted to, approved and endorsed by the responsible authority, identifying a footprint at ground level within which each turbine may be located. When endorsed the plan will form part of this permit.
The Micro-Siting Plan must be fully dimensioned and drawn to scale. The footprint for each turbine identified on the Micro-Siting Plan:
a.must not extend more than 100 metres in any direction from the centre of the turbine at ground level as shown on the development plans endorsed under condition 1

…
c.must not be located within the turbine-free buffers referred to in condition 1(c)

…
7.Any changes to access tracks, electricity cabling and associated infrastructure arising from micro-siting a turbine in accordance with an endorsed Micro-Siting Plan are permitted without requiring the consent of the responsible authority or any amendments to the development plans endorsed under condition 1.
8.The endorsed Micro-Siting Plan must not be altered or modified without the written consent of the responsible authority.[17]

[17]Ibid 156.

The panel recommended conditions to ensure the completion of a pre-construction noise assessment, a post-construction acoustic compliance report, and a noise management plan.

Condition 18 provided:

18.Before development starts, a Pre-construction Noise Assessment based on the final turbine layout and turbine model to be installed and the detailed design of the ancillary infrastructure must be prepared, submitted to and approved by the responsible authority. The approved Pre-construction Noise Assessment must be placed on the project website as soon as practicable.
The Pre-construction Noise Assessment must:
a.be prepared in accordance with the Standard and NIRV,[18] and must demonstrate to the satisfaction of the responsible authority that the facility will comply with the performance requirements specified in conditions 13 and 16
b.must include the collection of background noise monitoring of at least 4,032 valid data points for each representative site, analysis by 24 hour and night (10pm to 7am) only periods, and for each time sector analysis for each 45 degree wind rose direction[19]

[18]Environment Protection Authority Victoria, Publication 1411: Noise from Industry in Regional Victoria (28 October 2011).

[19]Panel report, 158–159.

Condition 22 required the preparation of a post-construction acoustic compliance report:

22.A Post-construction Acoustic Compliance Report, must be prepared in accordance with the Standard and NIRV, which demonstrates whether the facility complies with the performance requirements specified in conditions 13 and 16 (including any penalty for special audible characteristics), must be submitted to the responsible authority within:
a.6 months of the first turbine operating (in respect of demonstrating compliance with condition 13); and
b.6 months of the ancillary infrastructure commencing operations (in respect of demonstrating compliance with condition 16).

Further Post-construction Acoustic Compliance Reports prepared in accordance with this condition must be submitted to the responsible authority annually from the date of the first report being submitted until the final turbine is operating.[20]

[20]Ibid 160.

Conditions 23 and 24 required the approval of a noise management plan:

23.Before development starts, a Noise Management Plan must be submitted to, approved and endorsed by the responsible authority. Prior to being submitted, the Proponent should advertise and seek public comment on the draft Noise Management Plan. When endorsed the Noise Management Plan will form part of this permit. Once endorsed, the plan must be placed on the project website for the life of the project.
The Noise Management Plan must specify details of:
…
b.Post-construction Acoustic Compliance Reports: detailing how these will be prepared in accordance with the Standard and NIRV, to demonstrate whether or not the facility complies with the performance requirements in conditions 13 and 16.
c.Noise Investigation Reports: detailing procedures for when complaints are received in accordance with the endorsed Complaints Investigation and Response Plan (condition 92) or when potential non-compliance with the performance requirements in conditions 13 and 16 is otherwise detected.
d.Noise Remediation Plans: detailing prompt actions to achieve compliance when non-compliance with the performance requirements in conditions 13 and 16 is found to have occurred.
e.The requirements for each of the documents referred to in condition 23(b), (c) and (d), including what matters they must address, and when they must be submitted.

24.The endorsed Noise Management Plan must be implemented to the satisfaction of the responsible authority. The endorsed Noise Management Plan must not be altered or modified without the written consent of the responsible authority.[21]

[21]Ibid.

The panel also recommended that the pre–construction noise assessment be subject to conditions requiring peer review and environmental audit:

26.The Pre–Construction Noise Assessment required under condition 18, the Noise Management Plan required under condition 23, and each report and remediation plan required under condition 23, must be prepared by a suitably qualified and experienced acoustician.
27.The Pre–Construction Noise Assessment required under condition 18, Noise Management Plan required under condition 23, acoustic compliance reports required under condition 22 and the noise remediation plan required under condition 23, must be accompanied by a peer review from an environmental auditor…verifying that the report or plan is suitable, and meets the requirements of this permit.
28.If request by the responsible authority, the noise investigation reports required under condition 23(c) must be accompanied by a report from an environmental auditor …verifying that the report or plan is suitable, and meets the requirements of this permit.
29.If an auditor…cannot be retained for any of the requirements under conditions 27 and 28, written consent of the responsible authority may be sought to provide a peer review from a suitably qualified and experienced independent acoustic engineer instead.
30.The environmental auditor or peer reviewer must be a different author to the author of the report being reviewed and must make an appropriate conflict of interest declaration.[22]

[22]Ibid 161.

Finally, the panel recommended that the permit holder be required to develop and implement a Community and Stakeholder Engagement Plan. Condition 78 stated:

78.Before development starts, a Community and Stakeholder Engagement Plan must be developed and implemented to the satisfaction of the responsible authority. Once endorsed, the Community and Stakeholder Engagement Plan will form part of this permit, and must be made publicly available on the project website, and remain publicly available for the life of the project.
The Plan must outline the objectives, tools, timing and the desired outcomes for the community and stakeholder engagement to be carried out through the detailed design, construction and operation of the Project.[23]
[23]Ibid 174.

The Minister’s assessment

The Minister’s assessment of the project was signed by the Minister on 20 October 2018 and included sections headed:

(a) project description;

(b) statutory processes;

(c) assessment framework; and

(d) assessment of environmental effects.

The assessment of environmental effects addressed numerous environmental issues including the impacts on the Brolga and other fauna.

The Minister’s assessment described the project in these terms:

•228 wind energy turbines (maximum blade tip height of 230m, minimum clearance between the blade tips and the ground of 30m and rotor swept area in the order of 150 m in diameter) to be mounted on towers 115 to 155m high;
•Construction of about 150km of internal access tracks.

As to the potential effect on the Brolga, the Minister’s assessment said:

On balance, it is my assessment that the project, subject to specific modifications and recommendations set out in this assessment, will have acceptable environmental effects.
The assessment of potential effects on Brolga was a significant focus of the EES, submitters and the panel. The panel was not convinced that [WestWind] had provided sufficient empirical evidence to justify its proposed project-specific turbine free buffers. I concur with the panel’s reasoning and approach in recommending turbine free buffers derived through the [BLA model]...
As a result, part of the proposed wind farm footprint will be excluded from supporting turbines. Approximately 47 turbines will be excluded from the layout presented in the EES and the planning permit application to provide adequate protection for Brolga breeding wetlands in light of the [Brolga Guidelines].
I acknowledge the potential significant loss in renewable energy generation capacity associated with the loss of 47 turbines. Accordingly, it is my assessment that an application to amend the planning permit to install turbines within the part of the wind farm area designated as turbine-free in line with the [BLA model] may be considered at a later date if consistent with revised DELWP guidelines…[24]

[24]Minister’s assessment, 10.

Section 5.1.3 of the Minister’s assessment referred to the protection of breeding wetlands, observing:

It remains uncertain what constitutes an adequate home range and buffer for Brolga breeding wetlands potentially affected by the [project]. I therefore consider it essential to apply the precautionary principle to protect those breeding sites at least to an extent consistent with the protection that has been applied through statutory approvals for wind farms to other breeding wetlands since the publication of the IBG. Accordingly, I support the panel's finding that the [BLA] habitat approach should be applied in the case of the Golden Plains breeding wetlands in the absence of compelling evidence justifying smaller site-specific home ranges.
…
Accordingly, in response to the panel’s recommendations 1 and 2, I consider at this time that the approval for the [project] should not permit the development of turbines falling within the [BLA] habitat-based home ranges with 300 m disturbance buffer. Turbines mapped within the hatched area in Figure 2 …should be deleted from the plans for the planning permit.[25]

[25]Ibid 14–15.

Figure 2 is found in the appendix and is derived from an updated version of Document 86.

As to noise, the Minister’s assessment concluded:

It is my assessment that [WestWind] has demonstrated that the project is capable of being developed and operated in compliance with the applicable noise standards, to an appropriate level of confidence, except for the residual uncertainty associated with applying a higher amenity noise limit to the areas in and around Rokewood.[26]

[26]Ibid 31.

The Minister accepted the panel’s recommendation as to the need for a habitat buffer to protect Brolga in these terms:

Modify the [project] generally in accordance with the plan shown in Document 86, to apply the [BLA model] turbine free buffer to each of the 27 Brolga breeding sites identified in and within 3.2 km of the wind farm site.[27]

[27]Ibid 51.

As to the permit conditions recommended by the panel, the Minister said:

I support the planning permit conditions generally in accordance with those contained within Appendix F of the panel report. With regard to the management of environmental effects, I recommend the planning permit conditions proposed by the panel may need to be modified in accordance with the following guidance:
…
• Permit Condition 18b requires the collection of background noise monitoring of at least 4,032 valid data points for each representative site, analysis by 24 hour and night (10pm to 7am) only periods, and for each time sector analysis for each 45 degree wind rose direction. I note that the collection of 4,032 valid data points as recommended by the panel may prove impractical depending on site wind conditions. It is my assessment that this requirement should be modified to allow some flexibility if the proponent can demonstrate to the responsible authority that they have undertaken all reasonable efforts to collect representative background noise data.[28]
[28]Ibid 54.

WestWind letter to the Minister

The letter stated:

(a) further modelling had enabled turbines previously located within the Brolga buffer area to relocate within the wind farm, and the permit should allow for a maximum of 228 turbines;

(b) the collection of background noise levels at 4,032 data points at each site of background noise monitoring may not be achievable, and the permit conditions on noise should require that either the 4,032 data points must be collected, or such amount as is collected over a six week monitoring period;

(c) while Rokewood was a high amenity area, the relevant tests in the New Zealand Standard for wind farms must nonetheless be undertaken, including if necessary a further step to determine the appropriate wind conditions under which the limit applied;

(d) WestWind was committed to delivering a community benefits program; and

(e) WestWind would establish a community reference group to foster community partnerships and provide an open forum.

This letter was not provided to the plaintiffs.

On 12 November 2018, a meeting took place between DELWP officers and WestWind representatives. Two days later, a further version of the conditions was emailed by WestWind’s planner to DELWP.

Ministerial brief

On 19 December 2018, the plaintiffs issued this proceeding. The following day, DELWP completed a brief to the Minister. The brief was signed by the Executive Director Statutory Planning Services of DELWP, and recommended that the Minister sign the attached permit and conditions.

The brief addressed a wide range of issues including Brolga and noise impacts.

The brief dealt with the rearrangement of the site layout necessary to include the required buffers:

[WestWind] has suggested that the site layout can be rearranged to include the required buffers and relocate some turbines, and that it is therefore not necessary to stipulate any reduction in turbine numbers in the permit conditions.
DELWP agrees with this approach, as the purpose is to provide adequate buffers between turbines and breeding wetlands, rather than specifically reducing or stipulating the number of turbines.[29]

[29]Ministerial brief, [16]–[17].

Noise impacts were discussed in these terms:

The panel found that the proposal would comply with the requirements of the [New Zealand Standard].
a.The proposed permit conditions require that a revised predictive noise assessment be undertaken when the final turbine model is selected, and a post–construction noise assessment is undertaken after the proposal is built. Both these assessment reports are required to be accompanied by a statutory audit by an auditor…confirming that the noise assessments have been undertaken in accordance with the noise standard.
…
e.The panel and your assessment under the EE Act recommended that pre–construction noise assessment should require additional testing to be carried out for establishing background noise measurements. The panel recommended collection of a minimum of 4,032 valid data points to establish background noise levels. This [sic] an increase from the provisional minimum of 1,440 data points set by the noise standard and provided by the applicant.
f.Your assessment under the EE Act concluded that 4,032 data points may prove impractical and that this requirement may be modified to allow some flexibility if the proponent could demonstrate that all reasonable efforts have been made to collect representative background noise data, but this has been unattainable due to wind conditions.
g.DELWP recommends that the relevant permit condition be modified to allow either 4,032 data points or background monitoring data points collected over a six week period, whichever is the lesser. The alternative six week approach was suggested by the applicant. DELWP is satisfied that this is reasonable and will ensure compliance and a reasonable level of certainty.[30]

[30]Ibid [18(a), (e)–(g)].

Under the heading of native vegetation removal, the brief stated:

The rearrangement and deletion of turbines to accommodate the revised turbine–free Brolga buffers will affect the extent of native vegetation removal and required offsets. This will require review of the extent of vegetation removal and offsets once the final layout is determined.[31]

[31]Ibid [19(b)].

As to flora and fauna impacts, the brief stated:

The panel found that there would be acceptable impacts on other flora and fauna, subject to appropriate permit conditions including preparation of a bat and avifauna management plan (BAM plan) to monitor and minimise impacts from operation of the facility. Conditions are also included to minimise impacts on habitat of terrestrial fauna through construction of the project.
a.The permit conditions have been modified to clarify which species the BAM plan must specifically address. This general change was suggested by [WestWind], with the final list of species developed in consultation with staff from DELWP Biodiversity (Forest, Fire and Regions).[32]

[32]Ibid [20].

The community benefits scheme and community reference group were considered to be non–statutory requirements which did not require approval.

The brief supported the permit conditions recommended by the panel. As to the changes to conditions requested by WestWind in the letter, DELWP advised:

[WestWind] was involved in drafting of the conditions through the panel process. Following release of the panel report which included recommended conditions, [WestWind] suggested substantive changes to conditions 1, 18(b), 18(c) and 46(a)(i).
a.Changes sought to condition 1 were to introduce the option for an alternative (as yet undefined) approach to Brolga buffers, subject to further assessment by DELWP. This is not supported by DELWP. The appropriate process for assessing new information is through a future application to amend the permit at a later date.
b.Changes sought to condition 18(c) were the removal of the identification of the Rokewood township as a high–amenity area for the purposes of the noise standard. This is not supported by DELWP. Acknowledgement of Rokewood as a high–amenity area was a specific recommendation of the panel, which DELWP supports, as outlined under paragraph 18(b) of this brief.

DELWP supports [WestWind]’s suggested changes to conditions 18(b) and 46(a)(i)...[33]

[33]Ibid [33]–[35].

The suggested change to condition 18(b) was the acceptance of a six week testing period as an alternative to background noise monitoring of 4,032 data points. The suggested change to condition 46(a)(i) related to the species to be included in the BAM plan. The brief stated that the final list of species had been developed in consultation with DELWP.

On 21 December 2018, the Minister signed the brief, and granted the attached planning permit for the wind farm. The permit contained the changes to condition 18(b) and 46(a)(i).

Statement of reasons for the grant of a permit

On 26 March 2019, the Minister signed a statement of reasons for his decision to grant a permit. The statement of reasons listed the materials before the Minister when he granted the permit, and included the letter.

The statement of reasons addressed Brolga impacts:

To achieve the full 228-turbine proposal, [WestWind] sought to reduce the Brolga breeding site buffer distances from 3.5kms (the default 3.2kms plus a 300-metre disturbance buffer) to 700 metres (400 metres plus 300-metre disturbance buffer).
DELWP was not satisfied with the justification and did not agree to [WestWind]’s reduced buffer distances.
The [panel] was not satisfied that [WestWind]’s buffers satisfied the objective of avoiding and minimising adverse impacts on Brolga and recommended the alternative [BLA model] be used to determine buffers. The [panel] recommended that permit conditions be included requiring the final boundaries to be agreed with DELWP Environment. My EE Assessment agreed with these recommendations. The [panel report] also recommended that permit conditions be included requiring a Brolga Monitoring and Compensation Plan to be prepared in consultation with DELWP prior to development commencing. I agreed with the inclusion of these conditions.

The alternative buffer model was predicted to result in deletion of 47 turbines in the south-eastern portion of the site based on the layout submitted under the permit application. Following the [panel report], [WestWind] wrote to me on 9 November 2018 suggesting that the site layout can be rearranged to include the required buffers and relocate some turbines, and that it is therefore not necessary to stipulate any reduction in turbine numbers in the permit conditions.
I agreed with this approach, as the purpose is to provide adequate buffers between turbines and breeding wetlands, rather than specifically reducing or stipulating the number of turbines.[34]

[34]Statement of reasons, [71]–[75].

The statement of reasons reviewed noise impacts:

The [panel] and my EEA assessment recommended that pre-construction noise assessment should require additional testing to be carried out for establishing background noise measurements. The [panel] recommended collection of a minimum of 4,032 valid data points to establish background noise levels (an increase from the provisional minimum of 1,440 data points set by the noise standard and provided by [WestWind]).
Following the [panel report], [WestWind] wrote to me on 9 November 2018 stating that the collection of 4,032 data points may not be achievable. Instead, [WestWind] suggested that the permit should allow some flexibility by requiring either 4,032 data points or background monitoring data points collected over a six-week period.
My EE Assessment concluded that 4,032 data points may prove impractical and that this requirement may be modified to allow some flexibility if [WestWind] could demonstrate that all reasonable efforts have been made to collect representative background noise data.
I was satisfied that [WestWind]’s proposed approach is reasonable and will ensure both compliance and a reasonable level of certainty as to the likely noise impacts of the proposal. I modified the [panel]’s recommended condition for the pre-construction noise assessment to require either 4,032 data points or background monitoring data points over a six-week period, whichever is lesser.[35]

[35]Ibid [78]–[81].

The community benefits scheme was considered to be outside the statutory process:

By letter dated 9 November 2018, [WestWind] described details of the community benefits scheme that it intends to deliver beyond the requirements of the planning process. It is not proposed to require the delivery of the community benefit scheme through the [permit].[36]

[36]Ibid [109].

The statement of reasons concluded:

For these reasons, consistent with my acceptance of the findings and recommendations in the [panel report] and my EE Assessment, I was satisfied that issuing a permit for the proposal, subject to conditions contained in the [permit], results in a net community benefit and will make a significant contribution to sustainable development.
I considered that permitting the proposal to proceed will result in an appropriate outcome despite certain negative impacts. I was satisfied that the imposed conditions reduce the negative impacts to an acceptable level and would result in a net community benefit having regard to the community and broader environmental, social and economic benefits of the proposal.[37]
[37]Ibid [113], [114].

Grounds of review

The originating motion for judicial review was filed on 18 December 2018. Following amendment on 18 April 2019, the originating motion listed 10 grounds. Grounds 1, 3–5, 7 and 9 are pressed and are considered in this judgment. Ground 2 was not pressed by the plaintiffs and is not further considered. Grounds 6, 8 and 10 are consequential to grounds 1, 7 and 9 respectively. As grounds 1, 7 and 9 fail these grounds do not arise, and are not further considered.

The decisions and related grounds of review are:

(a) Environment effects assessment – ground 1;

(b) Grant of permit – grounds 3-5;

(c) First correction – ground 7; and

(d) Second correction – ground 9.

Evidence and submissions

The plaintiffs relied on the affidavits and exhibits of their legal practitioner, Dominica Sophia Tannock, sworn 18 December 2018 and 18 April 2019.

The Minister relied on the affidavit and exhibits of John Gerard Krohn, a senior impact assessor of DELWP, sworn 18 July 2019, and the affidavits and exhibits of Stuart Roderick Menzies, Director of State Planning Services, DELWP, affirmed 18 July 2019 and 12 September 2019.

WestWind relied on the affidavit and exhibits of its legal practitioner, Zachary McAbee Tyler affirmed 10 July 2019.

Mr Krohn and Mr Menzies were cross-examined.

Each of the parties made written and oral submissions.

Environment effects assessment
Ground 1 – Jurisdictional error through unreasonableness

The plaintiffs contended that the Minister’s assessment under the EE Act is legally unreasonable and affected by irrationality and illogicality because Figure 2[38] of the Minister’s assessment materially understates the required buffer area, with the consequence that the assessment is affected by jurisdictional error and is of no effect.
[38]See Appendix.

Plaintiffs’ submissions

The plaintiffs submitted that:

(a) there was a mismatch between the BLA model for protecting the Brolga and the buffers actually shown in Figure 2;

(b) more turbines would be deleted from Figure 2 if the BLA model had been applied properly; and

(c) the error was foundational and showed unreasonableness or illogicality that resulted in jurisdictional error.

Minister’s submissions

The Minister submitted that:

(a) the plaintiffs have not established that any error was made in Figure 2;

(b) if the Minister made an error in Figure 2, it was an error of fact;

(c) the Minister relied on the panel report which in turn relied on Document 86 before the panel. Document 86 was tabled by WestWind at the panel hearing, and was prepared by an expert witness;

(d) the Minister’s assessment recommended that the final home range boundaries required by the BLA model be determined by a secondary process, as recommended by the panel; and

(e) even if there was an error, it was not sufficient to establish unreasonableness, irrationality or illogicality.

WestWind’s submissions

WestWind submitted that:

(a) the panel recommended that the BLA model should be applied;

(b) the panel recommended that WestWind be required to clearly map the full extent of the turbine free buffers, with the final buffer boundaries to be determined in conjunction with DELWP Environment; and

(c) the plaintiffs were given a reasonable and substantial opportunity to call evidence, cross-examine witnesses and make submissions to the panel about the methodology and plans for Brolga buffers.

Mr Krohn’s evidence

Mr Krohn gave evidence that during the impact assessment of the project he had focused on the Brolga protection issue, and attended two days of the panel hearing. Subsequently, he emailed WestWind’s planning consultant requesting high resolution copies of the plans tabled at the panel hearing showing the alternative turbine free areas. The high resolution version of Document 86 was the base plan for Figure 2.[39]
[39]Minister’s assessment, 16.

He said that the BLA model identified habitat that was more attractive to Brolgas than dry land habitat at the time when they had dependent unflighted chicks.

In reviewing Document 86, Mr Krohn said that he picked some key points on Document 86 that were likely to represent key distances, and some distances which were at the maximum. He checked the location where the extremities were significant in defining the green hatched area. He said that he had not reviewed the buffer areas exhaustively, but on a sample basis to achieve a level of comfort that the plan was doing what it set out to do.

The interpretation of Document 86

The legend to Document 86 lists four categories of wetlands:

(a) Likely breeding wetlands (numbered 1-27) shown in blue with a red boundary;

(b) Suitable (low to high quality) wetlands shown in green;

(c) Unassessed wetlands shown in brown; and

(d) Unsuitable wetlands shown in white.

Most, if not all, wetlands depicted on Document 86 appear to have been assessed. The recommended buffer areas include blue, green and white shaded wetlands. There are 27 likely breeding wetlands and numerous suitable wetlands. There are also unsuitable wetlands depicted in white.

The panel briefly summarised the criteria used in the BLA model in its report.[40] The second criterion is stated as ‘all wetlands within 3.2 kilometres from a breeding site’. On a literal reading, this includes all wetlands, whether suitable or unsuitable as breeding wetlands. If, however, the second criteria is taken as referring to all wetlands that are suitable for breeding within 3.2km from a breeding site, the plaintiffs accepted that the buffer area shown in Document 86 was correct and their case failed.
[40]See [30].

The plaintiffs submitted that what had happened is that the evidence prepared by BLA really had three categories – likely breeding, suitable for breeding, and unsuitable for breeding. BLA had only used sites that were likely or suitable breeding wetlands in their habitat model, rather than all sites which were wetlands. BLA had not included unsuitable wetlands. The plaintiffs contended that all wetlands which were part of the Brolgas’ foraging area should have been included.

The nature of the Minister’s assessment

In Friends of Mallacoota Inc v Minister for Planning, Osborn J described the purpose of the Minister’s assessment under the EE Act as to assist the ultimate decision maker. This could include the assessment of facts identified and evaluated by the panel within a framework of considerations adopted by the panel. It was for the ultimate decision maker to decide whether the basis disclosed in the assessment should be accepted. [41]
[41](2010) 28 VR 257, 275 [55].

No error has been established

In section 5.1.3 of the Minister’s assessment, the Minister accepts the precautionary principle to protect Brolga breeding sites, and accepts that the BLA model should be applied in the absence of compelling evidence justifying smaller site-specific home ranges.[42] As a result, the Minister imposed a condition that turbines mapped within the buffer areas in Figure 2 be deleted from the plans for the permit.[43]
[42]See [51].
[43]Ibid.

Despite the plaintiffs’ assertion that Figure 2 understates the buffer areas, I am not satisfied that they have shown that any error was made by the Minister for the following reasons:

(a) the Court has no expert or other evidence that Figure 2 is incorrect. To the contrary, as far as it goes, Mr Krohn’s evidence supports the correctness of Figure 2;

(b) Figure 2 is derived from Document 86 which was recommended by the panel. The Minister is entitled to act on the panel report and recommendations, particularly in the absence of any contradicting evidence;

(c) Document 86 was prepared by Mr Brett Lane, an expert ecologist, who gave evidence at the panel hearing, and prepared five different plans at the panel’s request. The panel was entitled to rely on his expertise and skill.

(d) apart from what has been said in this proceeding, Document 86 has never been challenged. Mr Lane was not questioned or cross-examined about Document 86. The plaintiffs’ interpretation has never been put to him. He has not had the opportunity to justify how he determined the buffer areas shown in Document 86;

(e) the issue of Brolga buffer areas was an important issue at the panel hearing. All parties, including the plaintiffs, had ample opportunity to make submissions on Brolga buffer areas. The plaintiffs made extensive submissions to the panel and cross-examined witnesses on this subject;

(f) the suggested error amounts to no more than a difference of interpretation by the plaintiffs as to one of the criteria on which Document 86 was prepared. On the basis that the second criterion was intended to refer to all wetlands suitable for breeding within 3.2 km of a breeding site, the Brolga buffer areas shown in Document 86 are acknowledged by the plaintiffs to be correct;

(g) the issue of Brolga buffer areas is one of expert judgment, on which ecological experts might arrive at different views. The difference of opinion by the plaintiffs with the way that BLA prepared Document 86 does not demonstrate error on the part of the Minister; and

(h) while condition 1(c) provides that the turbine free buffer zones for Brolga are to be generally in accordance with Document 86, the final boundaries are to be agreed with DELWP Environment. No final decision has been made as to where the boundaries of the turbine free buffer areas will be.

Absence of jurisdictional error

The legal principles that relate to jurisdictional error by reason of legal unreasonableness, irrationality or illogicality are well established.[44]
[44]See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 362–367 [63]–[76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 644–650 [121]–[136] (Crennan and Bell JJ); Sidhu v Minister for Immigration and Border Protection [2017] FCA 889, 10–12 [35]–[42]; Minister for Immigration and Border Protection v Singh [2016] FCA 575; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ).

In the present case, it cannot be said that Figure 2 of the Minister’s assessment was unreasonable, irrational or illogical. The Minister acted on the expert ecological evidence that he had, supported by the panel report, and DELWP advice. The Minister’s assessment was plainly open on the evidence.

There is no evidence of any error in Figure 2 as to the application of the BLA model. At the highest, the extent of Brolga buffer areas is an issue on which reasonable minds might differ. There is no basis for the allegation in ground 1 that the Minister made a jurisdictional error as to the buffer area shown in Figure 2 of the Minister’s assessment.

Grant of Permit
Ground 3 – denial of procedural fairness

The plaintiffs contended that the Minister denied them procedural fairness by acting upon the letter in granting the permit without giving the plaintiffs the opportunity of being heard about the letter.

Procedural fairness

The plaintiffs contended that the obligation to afford procedural fairness applied to a decision by the Minister to grant a permit under s 97F of the PE Act. They relied on the decision of the High Court in Minister for Immigration and Border Protection v SZSSJ where the High Court held:

…procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.[45]

[45](2016) 259 CLR 180, 205 [75] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).

They also relied on Saeed v Minister for Immigration and Citizenship, where the High Court endorsed the proposition that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness.[46]
[46](2010) 241 CLR 252, 259 [14]–[15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

The Minister submitted that:

(a) if a procedural fairness obligation attached to the issue of a permit under s 97F of the PE Act, the content of the obligation to render procedural fairness would depend on the nature of the statutory scheme and the facts of the case. [47] It might be diminished to nothingness to avoid frustrating the purpose for which the power was conferred;[48] and
(b)it is necessary to take into account the practical context in which the decision maker must consider whether to exercise the power.[49] Fairness was not an abstract concept, but was essentially practical. The concern of the law was to avoid practical injustice.[50]

[47]See Salemi v Mackellar (No 2) (1977) 137 CLR 396, 444 (Stephen J).

[48]Kioa v West (1985) 159 CLR 550, 615 (Brennan J).

[49]Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, 69 [31] (Gleeson CJ and Hayne J).

[50]Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, 14 [37] (Gleeson CJ) (‘Lam’).

WestWind submitted that:

(a)the power to grant a permit conferred on the Minister by s 97F of the PE Act was conditioned by an obligation to afford procedural fairness to an individual whose interests are apt to be affected by the grant of the permit. There was no contrary intention to be found in the relevant provisions of the PE Act;
(b)the content of the procedural fairness obligation is determined having regard to the terms of the statute, the nature of the function, and the administrative framework;[51] and
(c)the primary mechanism for affording procedural fairness to those whose interests may be affected by a permit application called in by the Minister under s 97F is a reasonable opportunity to be heard by the panel appointed by the Minister.
[51]See National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296, 326 (Brennan J).

Procedural fairness applies

I accept as submitted by the parties that procedural fairness applies to the grant of a permit under s 97F of the PE Act. Permits confer, and affect rights including those of the parties. There are no words in s 97F or other provisions in pt 4 div 6 of the PE Act that suggest that procedural fairness is excluded. The statutory scheme of pt 4 div 6 of the PE Act is that:

(a)the Minister is required to refer all objections or submissions received within time to a panel under s 97E of the PE Act except under very limited circumstances;[52]
(b)the panel is required to give all parties a reasonable opportunity to be heard;
(c)the panel is required to report its findings to the Minister setting out its recommendations on the permit application; and
(d)it is only after considering the panel report, and all of the matters required to be considered under s 60 of the PE Act, that the Minister can decide the permit application.[53]

[52]PE Act s 97E(5).

[53]PE Act s 97F.

It is clear from the scheme and provisions of the PE Act that, where a permit application is called in for decision of the Minister under s 97B, Parliament intended that the primary means by which procedural fairness would be rendered to the permit applicant and objectors was through the panel process. In making a decision on the permit application, Parliament intended that the Minister would be assisted by the report and recommendations of an expert panel. It is not ordinarily necessary for the Minister to hear parties personally or by a delegate because the panel process already provides them with the opportunity to make submissions, call witnesses, present evidence and cross-examine witnesses at a hearing. Parliament did not intend that the Minister would replicate the hearing that the panel is responsible for conducting.

In pt 8 of the PE Act, Parliament has given extensive directions as to panels, and the procedure they are to adopt. This extends to their appointment and the conduct of hearings. Panels have the power to regulate their own proceedings, and to take into account any relevant matter.[54]
[54]See also Dustday Investments Pty Ltd v Minister for Planning [2015] VSC 101, [86]–[87].

My conclusion that procedural fairness applies to the Minister when deciding a planning application called in under s 97B of the PE Act is consistent with the decision of Kaye J in Winky Pop Pty Ltd v Hobsons Bay City Council who held that natural justice applied to the decision making process of a council in relation to a planning scheme amendment.[55]
[55](2007) 19 VR 312, 325 [42], 330 [55].

The legislative scheme

In South Australia v O’Shea, Mason CJ said:

The scheme…is not unfamiliar. It allows a place for the presentation of the offender's case - before the Board when it is considering whether it should make a recommendation for release. There are many illustrations of this legislative model which entails the holding of an inquiry by a body authorized to make a recommendation to a Board or Minister which may make a decision rejecting the recommendation without conducting any further inquiry...The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness. If the decision-maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity…[56]

[56](1987) 163 CLR 378, 389.

The legislative scheme to which Mason CJ refers is adopted in pt 4 div 6 of the PE Act. It is the panel which makes recommendations to the Minister who may make a decision to accept or reject the recommendations without conducting any further inquiry. The hearing before the panel provides a sufficient opportunity for interested parties to present their cases with the result that the overall process provides procedural fairness.

The Minister’s powers

The issue then arises as to whether the Minister, in deciding to grant a permit under s 97F of the PE Act, can take into account new information not before the panel, without giving the parties not privy to the information an opportunity to be heard.

The question was answered by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (‘VEAL’), where the issue was whether the appellant should have been informed of the existence of a letter which made allegations against him. The High Court held that the decision maker must determine whether the new information is credible, relevant and significant before reaching a final decision. Some information adverse to the interests of a person can, and should, be put aside from consideration by the decision maker as not credible, not relevant, or of little significance to the decision. However, information that cannot be dismissed by the decision maker before making the decision is likely to be credible, relevant and significant for the purposes of the decision to be made. Procedural fairness requires that the person against whom the allegations are made have the opportunity of dealing with the new information.[57]
[57](2005) 225 CLR 88, 96 [17] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

Given that procedural fairness applies to a decision by the Minister to grant a permit under s 97F of the PE Act, it is clear that there are limits as to the new information which the Minister can receive and act on subsequent to the panel hearing without providing parties with a further opportunity to be heard. There is a pathway of legality to be traversed.

On the one hand, ignoring relevant material in a way that affects the exercise of power results in a decision maker exceeding the authority or power given by the relevant statute.[58] Likewise, failing to take into account cogent material providing substantial support to a party’s case is a failure to perform a duty of review.[59]
[58]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351 [82] (McHugh, Gummow and Hayne JJ).
[59]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435–436 [13] (Bell, Gageler and Keane JJ) (‘SZMTA’).

On the other hand, if the Minister proposes to take into account new information not previously available to the panel or the parties, and the new information is credible, relevant and significant in making the decision whether to grant a permit under s 97F, the Minister must consider how procedural fairness is to be afforded to the parties affected by the decision. This is often achieved by providing the parties affected by the decision with the new information, and inviting them to respond within a specified period of time.

In Kioa v West, Brennan J referred to the obligation of a decision maker to render procedural fairness, where the decision maker has information adverse to a person whose interests are likely to be affected and the information is credible, relevant and significant to the decision to be made. It would be unfair if the person affected were not given an opportunity to deal with the information.[60]
[60]Kioa v West (48) 628–629.

In VEAL, the High Court explained that what is ‘credible, relevant and significant must be determined by the decision maker before the final decision is reached’, referring to information that could not be dismissed from further consideration by the decision maker before making the decision.[61]
[61]VEAL (n 57) 96 [17].

Likewise, in Haoucher v Minister for Immigration and Ethic Affairs, the Minister rejected the recommendation of the Administrative Appeals Tribunal by reason of ‘exceptional circumstances’ for which ‘strong evidence could be produced to justify’. The majority of the High Court overturned the decision on the basis that the Minister had failed to afford the appellant an opportunity to be heard on the question whether the recommendation of the Tribunal should be overturned.[62]
[62](1990) 169 CLR 648, 655 (Deane J), 671 (Toohey J), 684–685 (McHugh J).

I now turn to the issue whether the Minister failed to afford procedural fairness in relation to the letter.

Parties’ submissions

The plaintiffs submitted that:

(a)procedural fairness required the Minister to state that he was intending to depart from his previously stated position to reduce the number of turbines;
(b)the Minister was influenced by the letter;
(c)the plaintiffs were not given the opportunity to controvert the Minister’s change of position; and
(d)the Minister failed to afford procedural fairness in relation to the letter.

The Minister submitted that:

(a) the plaintiffs had been given the opportunity to be heard at the panel hearing;
(b)the panel recommended a Brolga buffer area greater than that proposed by WestWind;
(c)the panel proposed permit conditions in accordance with its recommendations;
(d)the draft permit conditions did not require any specific reduction in the number of wind turbines. They required deletion of all turbines within the Brolga buffer area identified by reference to Document 86;
(e)the Minister accepted the panel’s recommendations and permit conditions in relation to the buffer areas;
(f)the letter endorsed the panel’s recommended permit conditions so far as they related to the buffer areas and reinforced the position the Minister had already taken in the Minister’s assessment;
(g)the letter cannot be said to have set the Minister on a new course;
(h)the Minister was not required to provide parties to the panel hearing with an opportunity to be heard in relation to the letter; and
(i)the letter was essentially an administrative letter relating to the workability of the proposed permit conditions.

WestWind’s submissions

WestWind submitted:

(a) procedural fairness did not require disclosure of the letter to the plaintiffs;
(b)the plaintiffs were given a reasonable and substantial opportunity to be heard by the panel on appropriate buffer areas and noise conditions;
(c)permit conditions 1(b) and (c) as imposed by the Minister accorded entirely with the panel’s recommendations;
(d)condition 18(b) contained a minor variation, but on a matter about which the panel had heard evidence and submissions, and fell squarely within the scope of the issues heard by the panel; and
(e)the amendment to condition 18(b) was not material, and was severable.

The position concerning the number of turbines prior to the letter

In the permit application, WestWind sought approval for 228 turbines. The location proposed for each turbine was shown on plans which accompanied the application. At the panel’s request, BLA prepared Document 86 showing the buffer areas resulting from application of the BLA model. The buffer areas were extensive, and significantly affected the layout and number of turbines. If adopted, WestWind’s proposal and turbine layout would inevitably have to be reconfigured. The panel recommended that the final boundaries of the turbine free buffer areas be determined in conjunction with DELWP Environment.[63]
[63]See [38].

The panel also recommended conditions which provided for the development plans to include the final location, and specification of the wind energy facility, and the number of turbines up to a maximum of 228 turbines to be provided by WestWind.[64] The location of each individual turbine including electricity cabling and facilities was to be approved and endorsed by the responsible authority.[65]
[64]Ibid.
[65]Ibid.

When the panel reported, the position was that no final resolution had been reached as to:

(a)       the number or location of turbines;
(b)      the precise siting of individual turbines; or
(c)       the extent of buffer areas.

All of these matters stood to be resolved under the proposed permit conditions.

In his assessment, the Minister generally supported the permit conditions recommended by the panel.[66] Whilst acknowledging the loss of approximately 47 turbines of renewable energy generation capacity under the BLA model, the Minister decided that turbines must be excluded from the Brolga buffer areas.[67] However, the Minister kept open the possibility of installing additional turbines in a buffer area by way of a permit amendment at a later date if further scientific information led to revised Guidelines.[68] Importantly, the Minister did not impose any condition reducing the number of turbines by any specific number. Rather, his decision was that turbines could not be located in designated buffer areas.
[66]See [55].
[67]See [50].
[68]Ibid.

Following the Minister’s assessment, the position was that WestWind needed to reconfigure the application plans. The Brolga buffer areas shown in Figure 2 and Document 86 were extensive and highly irregular in shape. They cut a swathe through the wind farm.[69] The turbine layout needed review, including turbines very close to buffer boundaries. Wind farm infrastructure would also be significantly affected.

Did the Minister receive significant new information or change position as a consequence of the letter?

[69]See Appendix.

I am satisfied that:

(a)the plaintiffs were given a full opportunity to be heard. At the panel hearing, they presented substantial submissions and evidence on all aspects, including the need for extensive Brolga buffer areas;
(b)the panel accepted the need for buffer areas much greater than those originally proposed by WestWind, although not as great as those sought by the plaintiffs;
(c)the panel drafted permit conditions to exclude turbines from designated buffer areas according to the BLA model;
(d)it was the inevitable consequence that WestWind would have to revisit the number and layout of turbines and associated infrastructure if it were to comply with the proposed permit conditions; and
(e)the number and location of turbines to be constructed would only be known when WestWind provided a new plan showing a reconfigured turbine layout and associated infrastructure works, and that plan was approved and endorsed by the responsible authority.

I am also satisfied that:

(a)the Minister was supportive of the project as providing renewable energy generation capacity for Victoria, on the basis that Brolgas and other species would be protected through the provision of buffer areas and by other measures;[70]
(b)the panel’s proposed permit conditions did not require the reduction of a specified number of turbines but did require the removal of turbines from the buffer areas described in Document 86;[71]
(c)the Minister endorsed the panel report and approach with the consequence that WestWind was required by permit conditions to bring forward a revised layout plan for approval by the responsible authority;[72] and
(d)neither the panel nor the Minister at any time specified by condition the precise number of turbines that would ultimately be permitted.

[70]See [50]–[55].

[71]See [38], [39].

[72]See [54], [55].

Far from requesting any change to the permit conditions as to the number of turbines, the letter was consistent with general acceptance of the recommendations of the panel. WestWind advised that further modelling had enabled turbines previously located within the buffer areas to locate within the wind farm, and that final detailed modelling with the future appointment of a service provider might also achieve less turbine loss whilst ensuring the protection of the Brolga buffer areas.

The Minister had already endorsed the proposal in the panel report. The letter did not request any change of the Minister’s decision to exclude turbines from buffer areas, or as to the permit conditions recommended by the panel in relation to turbine layout.

While the Minister’s assessment acknowledged the likely loss of renewable energy generation capacity as a result of the adoption of the BLA model, the Minister nonetheless supported the panel’s recommended permit conditions as to buffer areas.[73] The Minister did not alter his position on these matters as a result of the letter.
[73]Ibid.

In an affidavit affirmed on 10 July 2019, WestWind’s solicitor, Mr Zachary Tyler, summarised the changes to the permit conditions adopted by the Minister after 9 November 2018:

a. Under the heading ‘noise’:
i.in the third bullet point, the date for determining ‘noise sensitive locations’ was stated as ‘at 17 August 2017’ instead of the Panel’s recommendation of ‘as at the date of the Permit’. Similar changes proposed by [WestWind] to the dates referred to in conditions 31, 32, 34, 79 and 80 were also adopted by the [Minister] (in renumbered conditions 33, 34, 36, 82 and 83);
ii.in the seventh bullet point, the words ‘the last’ were included in reference to the construction of turbines. [WestWind]’s proposal to include the word ‘constructed’ after the words ‘the last’ was not included in that location of the sentence. However, the word ‘constructed’ was included elsewhere in the sentence.

b.Condition 18(b) included amendments requiring background noise monitoring that achieves the lesser of 4,032 data points or the amount collected over a 6-week period; and
c.Condition 46(a)(i) (renumbered as 48(a)(i)) deleted the words ‘avifauna species’ from the phrase ‘listed species and avifauna species (e.g. raptors)’.

WestWind originated the changes contained in (a)(ii), (b) and (c). The Minister rejected the other changes proposed by WestWind.

The changes made to the permit conditions resulting from the letter were minor and unrelated to the location of turbines or buffer areas. A date certain fixed for determining noise sensitive locations was substituted for the date of the permit in some conditions. Provision was made for background noise monitoring to continue until 4,032 data points had been collected or a six week period of monitoring completed. The species to be included in the BAM plan were clarified. The changes that were made had no significance in the context of the plaintiffs’ concerns as expressed in their submissions and evidence to the panel. They were of a fine tuning nature, and improved the conditions recommended by the panel.

Was there practical injustice?

In Lam, the decision maker failed to take a procedural step that had been advised in a letter from the Department. Gleeson CJ said of procedural fairness:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[74]

The Court held that there was no practical injustice occasioned by the failure as the applicant had lost no opportunity to advance his case.

[74]Lam (n 50) 14.

In Minister for Immigration and Border Protection v WZARH, the plurality found that the case was readily distinguishable from Lam where the applicant was afforded a full opportunity to be heard, and the Department’s letter raised no new matter to be taken into account in making the decision.[75] Gageler and Gordon JJ explained that a breach of procedural fairness by the Minister would justify declaratory relief by a court of competent jurisdiction, if it operated to deprive the applicant of the possibility of a successful outcome.[76]
[75](2015) 256 CLR 326, 337 [36] (Kiefel, Bell and Keane JJ).
[76]Ibid 341 [56].

The same test was adopted by the High Court in Nobarani v Mariconte, where it was held that the denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome.[77]
[77](2018) 92 ALJR 806, 813 [39] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ).

In SZMTA, a plurality of the High Court said:

Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal's implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a "practical injustice": the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal's decision.[78]

[78]SZMTA (n 59) 443 [38] (Bell, Gageler and Keane JJ).

It is for the plaintiffs to show that they suffered a practical injustice.

I am satisfied that the plaintiffs’ interests were not adversely affected by any action taken by the Minister in consequence of the letter. The permit subsequently granted by the Minister very largely gave effect to the conditions recommended by the panel. The permit changes made by the Minister as a consequence of the letter were modest and had no significance as far as the plaintiffs were concerned. I find that they did not cause any substantial wrong to the plaintiffs or deprive them of the possibility of a successful outcome.

I am satisfied that no practical injustice to the plaintiffs was occasioned by the changes made by the Minister to the panel’s recommended conditions in consequence of the letter. The plaintiffs already had a comprehensive opportunity to present their cases to the panel. Procedural fairness did not require the Minister to hear from the plaintiffs again before making the decision to grant the permit.

Were any of the amendments to the permit conditions consequent on the letter material?

In Hossain v Minister for Immigration and Border Protection, a plurality of the High Court said:

…The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

[94](2015) 47 VR 48, 86 [96] (Tate JA, Ashley JA agreeing at 53 [1]).

In Morgan v District Court of New South Wales, Meagher JA said:

As Kirby J observed …“However logically intriguing may be the rival theories of invalidity of defective orders, those theories cannot, as a practical matter, be invoked to remove an invalid decision from the scope of appellate or other review.” [95]

[95][2017] NSWCA 105, [27] (Meagher JA, Beazley ACJ agreeing at [1], Macfarlan JA agreeing at [8]) (citations omitted).

In R v A2 & Ors, Edelman J said:

With respect, the direction of a verdict of acquittal when a trial is found to be a mistrial and a “nullity” is not necessarily meaningless or senseless. Whatever might be meant in this context by the concept of a “nullity”, an issue considered later in these reasons, the trial was a real event and prior to the quashing of the conviction there was nevertheless a conviction recorded. The recorded conviction was a fact which provided a sufficient basis for an appeal to be brought. Equally, a recorded acquittal could be a meaningful fact, not least as vindication to the appellant.[96]

Construction of s 71(1) of the PE Act

[96]R v A2 & Ors (2019) 93 ALJR 1106, 1143–1144 [183].

The issue whether a decision made by a responsible authority or the Minister by omitting a condition that was required to be inserted in a permit has sufficient legal existence to be corrected by the primary decision maker under s 71(1) of the PE Act is ultimately a matter of statutory construction.

The principles of statutory construction are well established. In Project Blue Sky Inc v Australian Broadcasting Authority, the High Court held that:

...the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have...The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[97]

[97]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (emphasis added).

The plurality of the High Court emphasised the importance of context in SZTAL v Minister for Immigration and Border Protection:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose...Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[98]

[98]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

In Esso Australia Pty Ltd v Australian Workers’ Union, the High Court held that:

The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation...[99]

[99]Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551, 582 [52] (Kiefel CJ, Keane, Nettle and Edelman JJ) (emphasis added).

These principles are consistent with s 35 of the IL Act, which requires that when interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote that purpose or object.

In my view, where a decision that is otherwise valid is made by a responsible authority and the responsible authority fails to include a mandatory compliance condition, the decision made, and the permit issued, have sufficient continuing existence so that the omitted condition can be inserted by correction.

It would make no sense as a matter of statutory construction of s 71(1) if a responsible authority having become aware of the omission, and having the statutory power to correct the omission, were considered to be incapable of effecting the correction because the original decision was an absolute nullity. This would defeat the intent and underlying purpose of Parliament in granting the power of correction. Section 71(1) would lose much of its utility as it could not be used to rectify miscarriages in the planning process in many situations.

The intent of Parliament underlying s 71(1) was to facilitate the correction of miscarriages in the permit granting process such as a responsible authority’s omission of a mandatory condition by mistake. It would be a serious injustice to a permit holder if a failure by a responsible authority to impose a mandatory condition resulted in the permit being a nullity incapable of correction by the responsible authority.

Conclusion

For the reasons that I have set out, ground 5 fails. The mandatory conditions required by cl 52.32-5 of the planning scheme were included in the permit by correction. The Minister did have regard to the relevant provisions of the planning scheme when he granted the permit. Despite the omission of the mandatory conditions, the permit was capable of correction by the Minister’s delegate. The correction made by the Minister’s delegate was valid and effective, and operated retrospectively.

First correction
Nature of first correction

On 7 January 2019, Mr Stuart Menzies, Director at DELWP, acting as a delegate of the Minister, corrected the permit under s 71(1)(a) of the PE Act to add the conditions required by Amendment VC149.

Prior to the first correction, the permit contained numerous conditions dealing with noise management and reporting, including:

(a)noise from the operation of wind turbines must comply with the New Zealand Standard or agreed standards;
(c)before development, a pre-construction noise assessment based on the final turbine layout and turbine model, and the detailed design of the ancillary infrastructure must be approved by the responsible authority;
(d)near-field compliance testing reports must be prepared;
(e)a post-construction acoustic compliance report must be submitted to the responsible authority within six months of the first turbine operating, and within six months of the ancillary infrastructure commencing operation;
(f)further post-construction acoustic compliance reports must be submitted to the responsible authority annually until the final turbine is operating;
(g)a noise management plan must be submitted to, and endorsed by, the responsible authority specifying details of:
(i)near-field compliance testing report;
(ii)post-construction acoustic compliance reports;
(iii)noise investigation reports; and
(iv)noise remediation plans;

(h)the pre-construction noise assessment, reports and plans must be prepared by a qualified and experienced acoustician; and
(i)the pre-construction noise assessment, reports and plans must be accompanied by a peer review from an environmental auditor verifying that the report or plan is suitable and meets the requirements of the permit.[100]

[100]See conditions 13–18, 20, 22–23, 26–30.

The first correction introduced new conditions 22 and 24, and the consequential amendment of conditions 18, 23 and 29. The numbering of conditions in the permit was altered to reflect the addition of the two new conditions.

The new conditions 18(d), 22 and 24 were as follows:

18. The Pre-construction Noise Assessment must:
…
d.be accompanied by an Environmental Audit Report…The report must verify that the Preconstruction Noise assessment has been conducted in accordance with the Standard and meets the requirements of this permit.

22.A post-construction noise assessment report prepared in accordance with the [New Zealand Standard] demonstrating whether the wind energy facility complies with the Standard, must be submitted to the responsible authority. If the wind energy facility is constructed in stages, additional post-construction noise assessment reports for each stage must be submitted to the responsible authority.
24.Each post-construction noise assessment report must be accompanied by an environmental audit report…The environmental audit report must verify that the acoustic assessment undertaken for the purpose of the post-construction noise assessment report has been conducted in accordance with the [New Zealand Standard].

First correction statement of reasons

The first correction statement of reasons provided by the delegate, Mr Menzies, included the following paragraphs:

On 4 October 2018, Amendment VC149 commenced.
Amendment VC149 made two relevant amendments to clause 52.32 of the [planning scheme].
…
Section 71(1)(a) of the [PE Act] allows a responsible authority to correct a permit issued by the authority if the permit contains 'a clerical mistake or an error arising from any accidental slip or omission'.
The permit signed by the Minister on 21 December 2018 did not include the two mandatory conditions introduced by Amendment VC149. It also did not specify that the pre-construction noise assessment, required by condition 18 of the permit, be accompanied by an environmental audit report.
The conditions were accidentally omitted because the conditions in the draft permit submitted to the Minister were based on the list of recommended permit conditions included in the [panel report] with respect to the planning permit application. The [panel report] was prepared and provided to the Minister on 26 September 2018 (i.e. before Amendment VC149 commenced), and the list of conditions in the draft permit was not updated following commencement of Amendment VCl49.
I considered that, as a result, the permit contained an error arising from the accidental omission of conditions required following the commencement of Amendment VCl49.
To correct this error and incorporate the new requirement and the new mandatory conditions into the permit, I amended the permit to include new conditions at 22 and 24, and reword conditions 18, 23 and 29. The numbering of the other conditions in the permit was also updated to reflect the addition of the two conditions.

Mr Menzies’ evidence

In evidence, Mr Menzies confirmed that the conditions of permit provided to the Minister were based on the conditions of permit in the panel report with some changes by DELWP. He said that the list of conditions had not been updated following the commencement of Amendment VC149.

Ground 7 – The first correction is affected by jurisdictional error

Ground 7 states in substance that the first correction was not a clerical error and did not arise from an accidental slip or omission. It was not authorised under s 71(1) of the PE Act. It is said that the Minister fell into jurisdictional error by making the first correction.

History of section 71

Counsel for the parties assisted the Court by undertaking research as to the history of s 71. They prepared a joint note in relation to s 71, which included the following paragraphs:

The explanatory memorandum accompanying the Planning and Environment (General Amendment) Bill 2004 (Vic) explained:
Clause 25 amends section 71 to make it clear that technical corrections can be made to permits issued at the direction of the Tribunal. The clause also repeals sections 72 to 76 of the [PE Act]. Existing sections 72 to 76 set out the process to be followed for applying for and making an amendment to a permit. A new amendment process is to be inserted by clause 26.

Section 71 did not appear in relevantly similar form in the predecessor Town and Country Planning Act 1961 (Vic).
The parties have not found any relevant commentary in the second reading speech for the [PE Act] or in contemporaneous reports.
…
Section 71(1) is in similar form as s 119 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), although there are differences in language.
Section 119 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) appears to have replicated, in substantially similar form, s 49A of the Administrative Appeals Tribunal Act 1984 (Vic), when the Administrative Appeals Tribunal was replaced by VCAT in 1998. The Administrative Appeals Tribunal Act 1984 was repealed by s 310(a) of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic) on 1 July 1998, which was the date on which the Victorian Civil and Administrative Tribunal Act 1998 (Vic) came into operation.

Plaintiffs’ submissions

The plaintiffs submitted that:

(a)the text of s 71 suggests that only minor errors can be corrected under this power;
(b)s 71 must be read in the context of the PE Act as a whole, and had a narrow role;
(c)the fact that the power can be exercised by a delegate suggests that s 71 should not be given a sweeping interpretation; and
(d)s 72 was available for applications to amend permits.

The plaintiffs also relied on textual arguments in submitting that only minor errors may be corrected under s 71:

(a)the reference to ‘accidental slip or omission’ in s 71(1)(a) takes colour from the expression ‘clerical mistake’ to which it was joined;
(b)the nature of the ‘error’ that can be corrected takes colour from the cause of the error which enlivens the power, namely ‘any accidental slip or omission’; and
(c)s 71(1)(a) can be contrasted with s 71(1)(b) which specifically refers to ‘material’ miscalculations and mistakes. This suggests that s 71(1)(a) mistakes and errors are of a more immaterial or trivial quality.

The plaintiffs referred to Shangyi Vision Pty Ltd v Whitehorse City Council where the Tribunal said:

…while [s 71] of the [PE Act] provides the ability for the Responsible Authority to correct a permit that contains mistakes, the extent of this power is constrained. This section of the [PE Act] makes it clear that corrections include clerical mistakes, accidental slips or omissions and material miscalculations of figures or a mistake in the description of a person, thing or property.
On reviewing the ‘corrections’ to conditions made by the Responsible Authority, it is clear that they do not seek to remedy clerical mistakes or accidental slips. Rather, the ‘corrections’ have the effect of amending the requirements of the conditions.[101]
[101][2017] VCAT 691, [6]–[8] (Gibson DP) (‘Shangyi’).

Minister’s submissions

The Minister submitted that the power conferred in s 71(1)(a) was modelled on the slip rule. The slip rule reflected the inherent jurisdiction of a superior court of record at any time to correct an error in a decree or order arising from a slip or accidental omission.[102]
[102]Supreme Court (General Civil Procedure) Rules 2015 r 36.07 (‘Rules’).

The Minister submitted that the general principles that should be applied are:

(a)the key distinction was whether the error arose from an accidental slip or omission or was the product of a deliberate omission;[103]
(b)the test for whether a mistake or omission is accidental is that stated by Lord Herschell in Hatton v Harris; viz if the matter had been drawn to the Court’s attention would the correction at once have been made;[104]
(c)an omission or mistake will only be treated as accidental if it is a matter upon which no real difference of opinion exists;[105]
(d)the slip rule does not apply if the proposed amendment requires the exercise of an independent discretion or an evaluative judgment;[106] and
(e)the slip rule ‘does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded’.[107]

[103]Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642, 669–670 (Higgins J); Elyard (n 90), 390–391 (Lockhart J).

[104][1892] AC 547, 558, applied by McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, 453 (‘Storey & Keers’). See also Commonwealth v McCormack (1984) 155 CLR 273, 277.

[105]Elyard (n 87) 390–391 (Lockhart J).

[106]Storey & Keers (n 107) 453 (McHugh JA).

[107]Burrell v The Queen (2008) 238 CLR 218, 224–225 (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ); Achurch v The Queen (2014) 253 CLR 141, 154 [18] (French CJ, Crennan, Kiefel and Bell JJ).

In response to the plaintiffs’ textual arguments that only minor errors can be corrected under s 71, the Minister submitted:

(a)s 71(1)(a) contained alternative expressions ‘clerical mistake’ and ‘error arising from any accidental slip or omission’ which were separate and discrete. The error is not qualified or confined by, and does not ‘take colour’ from the words ‘clerical mistake’. It is only qualified by the fact that it must have arisen from any accidental slip or omission;
(b)there is nothing in the language of s 71(1)(a) that confines an ‘error’ to one that is insubstantial; and
(c)the word ‘material’ in s 71(1)(b) does not confine s 71(1)(a). The qualification that the mistake must be ‘material’ in s 71(1)(b) avoids the situation where immaterial mistakes are raised for correction by responsible authorities.

The Minister distinguished Shangyi[108] on the basis that the changes in permit conditions in that case appeared to be wide ranging, and that there was no reference to any mistake or error.
[108]Shangyi (n 101).

In Maroondah City Council v FTV Properties Australia Pty Ltd, the responsible authority successfully relied on s 71(1)(a) to amend a permit to include mandatory conditions.[109] The power also extends to the correction of plans and the inclusion of conditions required by a referral authority that should have been included in the permit by the responsible authority.[110]
[109][2004] VCAT 546, [42] (Komesaroff M) (‘FTV’).
[110]See Greater Shepparton City Council v Living Street Designs [2008] VCAT 1797 (Gibson DP); Franke v Colac Otway Shire Council [2011] VCAT 1615 (Dawson M); Stringer v East Gippsland Shire Council [2006] VCAT 2023 (Naylor M); Klotz & Grimberg v Port Phillip City Council [2005] VCAT 473 (Gibson DP and O’Leary M) (‘Klotz’).

Westwind’s submissions

WestWind submitted:

(a)the exercise of the power in s 71 to include the conditions required by s 62(1)(a) gave the provisions of the PE Act an effective and efficient operation; and
(b)the validity of the permit should not be undermined because the Minister failed to include conditions that he was required to include.

Purpose of the power

The objectives of planning include ‘to provide for the fair, orderly, economic and sustainable use and development of land’.[111] The purpose of s 71(1)(a) of the PE Act is to empower the responsible authority to rectify a miscarriage in the granting of a permit that might have occurred by reason of a clerical mistake or accidental slip or omission.
[111]PE Act s 4(1)(a).

The purpose and language of s 71(1)(a) of the PE Act are similar to those of the slip rule found in r 36.07 of the Rules.[112] The body of learning and authority that exists in relation to the court’s slip rule is of considerable assistance in construing s 71(1)(a) of the PE Act.
[112]See Victoria Legal Aid v County Court of Victoria (2004) 9 VR 686, 693 [12] (Chernov JA, Warren CJ agreeing at 699 [29], Dodds–Streeton AJA agreeing at 699 [30]).

The test to be applied

In Sands & McDougall Wholesale Pty Ltd (in liq) & Anor v Commissioner of Taxation (Cth) (No 2) (‘Sands’) the Court of Appeal said:

…One of the difficulties - and it is a difficulty often encountered in considering what was said in previous decisions - lies in determining whether the court, in describing the state of affairs which in its view existed, is formulating a test which must be met or merely speaking of the facts of the given case, which in its view are enough to warrant relief. For example, in Hatton v Harris, Lord Herschell said “I cannot doubt that the correction would at once have been made” if the matter had been drawn to the attention of the judge who made the decree. In Storey & Keers Pty Ltd v Johnstone, McHugh, J.A. accepted this as laying down what was in general the test.[113]

[113][1999] 2 VR 114, 119 [16] (Brooking JA).

The test stated in Hatton v Harris[114] has been applied on many occasions,[115] including by the High Court in Barrell Insurances Pty Ltd v Pennant Hills Restaurants Pty Ltd[116] and in Gould v Vaggelas.[117]
[114](n 104).
[115]Storey & Keers (n 104) 453; Commonwealth v McCormack (n 104) 277; Bain v Bain (deceased) [2017] FamCAFC 80, [235]; Arnett v Holloway [1960] VR 22, 28; National Australia Bank Ltd v Petit-Breuilh (No 3) [2000] VSC 291, [12]–[14]; Sakr v Mercantile Mutual Insurance [2000] NSWCA 266, [67].
[116](1983) 58 ALJR 51.
[117](1985) 157 CLR 215, 276 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

In Gamboni v Bendigo and Adelaide Bank Ltd (No 2) (‘Gamboni’), the Court of Appeal said:

The slip rule in r 36.07 of the [Rules] applies where an order contains a ‘clerical mistake’ or ‘an error arising…from any accidental slip or omission.’ The error in an order may be one that arises from inadvertence on the part of the Court or counsel for a party and may be remedied even where the order has been drawn up, passed and entered.
…
In Sands & McDougall, the Court of Appeal held that the slip rule only applies where the proposed amendment is one upon which no real difference of opinion could exist and where it is not a matter of controversy. [118]

[118][2013] VSCA 282, [26], [29] (citation omitted).

This line of authority was followed by the Court of Appeal in Woodley v Transport Accident Commission;[119] by the Full Court of the Federal Court in Flint v Richard Busuttil & Co Pty Ltd[120] and the New South Wales Court of Appeal in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc.[121]
[119][2014] VSCA 124, [6]–[7] (Maxwell ACJ, Tate and Priest JJA).
[120][2013] FCAFC 131, [26]–[33] (Allsop CJ, Katzmann and Perry JJ).
[121](2007) 70 NSWLR 411, 425–426 [79]–[82] (Spigelman CJ, Santow JA and Handley AJA).

In the context of s 119 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the same test and line of authorities have been applied by this Court,[122] and by the Tribunal.[123]
[122]Batagol & McGill v Monk and City of Port Phillip [2000] VSC 48 (Balmford J); Niebieski Zamek v Southern Rural Water [2001] VSC 453 (Balmford J).
[123]FTV (n 109); Klotz (n 110).

Given the purpose of the power in s 71(1)(a), the plaintiffs’ submissions that the power is confined to minor errors only cannot be accepted. It would be nonsensical if a minor error in a planning permit could be corrected but a major error fell outside the scope of the power even though it was a result of an accidental slip or omission.

Textual arguments

I accept the Minister’s submissions that the textual arguments raised by the plaintiffs are unpersuasive, and do not affect the ordinary meaning of the expression ‘an error arising from any accidental slip or omission’. The meaning of this expression is not qualified or coloured by the words ‘clerical mistake’. Likewise, the fact that s 71(1)(b) is addressed to material miscalculations of figures does not mean that the expression ‘accidental slip or omission’ should be narrowly construed or confined to mistakes of an immaterial or trivial nature.

Was there an accidental slip or omission by the Minister?

The first correction statement of reasons explains how the permit was issued without two mandatory conditions.

In East Melbourne Group Inc v Minister for Planning, Ashley and Redlich JJA held that the provision of reasons by a Minister of the Crown is an effective means of detecting the kind of error which would entitle the court to intervene, and that reliance would ordinarily be placed on what the decision maker said were the reasons for the decision.[124]
[124](2008) 23 VR 605, 661 [226].

In the present case, applying the test in Hatton v Harris,[125] it is indisputable that if the omission had been brought to the Minister’s attention when the permit was granted the permit conditions would have been inserted immediately.
[125](n 107).

There is no doubt that the Minister made an accidental slip or omission by failing to impose the mandatory conditions required by Amendment VC149. If the requirements of Amendment VC 149 approved by the Minister on 4 October 2018 had been brought to his attention on 21 December 2018 when he granted the permit, he would have inserted those conditions.

The explanation given for the oversight is that the permit conditions approved by the Minister were based on the conditions recommended in the panel report of 26 September 2018, and were the conditions before the Minister when he made the Minister’s assessment on 20 October 2018.

The explanation is credible and highly likely. By an oversight, the Minister overlooked the need to impose two conditions that he was required to impose.

There is no reason to doubt the explanation given in the first correction statement of reasons by the Minister’s delegate. If the Minister had been alerted to the missing conditions when he granted the permit, he would have made sure that they were included.

Conclusion

For these reasons I find that the first correction was within the Minister’s powers as conferred by s 71(1)(a) of the PE Act and was valid and effective.

Second correction
Nature of second correction

On 17 January 2019, Mr Adam Henson, Acting Manager at DELWP, acting as a delegate of the Minister, corrected the permit a second time under s 71(1)(a) of the PE Act to include a condition specifying a maximum rotor diameter of 150 m. This was achieved by amending condition 1(b) to require the development plans to include turbines with a maximum rotor diameter of 150 m.

The second correction statement of reasons states:

The permit signed by the Minister on 21 December 2018 did not include a condition specifying the maximum rotor diameter.
The [permit application] described a proposal with a maximum turbine rotor diameter of 150 metres. The relevant modelling was undertaken based on those dimensions. The proposal was exhibited as described in the [permit application]. The proposal was considered by the [panel] as including the maximum turbine rotor diameter of 150 metres.
I was satisfied, based on my review of the brief, my discussion with Michael Juttner, and my review of the extracts described above and attached to the brief, that the omission of the reference to the maximum turbine rotor diameter of 150 metres was purely an administrative oversight or typographical error.
As such, I was satisfied that the omission of the maximum rotor diameter of 150 metres was an error arising from an accidental omission within the meaning of s 71(1)(a) of the Act.
To correct this error, I have amended the permit to include new condition 1(b)(iii) providing for a maximum rotor diameter of up to 150 metres.

Ground 9 – the second correction is affected by jurisdictional error

Ground 9 is in substance that the insertion of a new condition as to rotor length is not a ‘clerical mistake’ or ‘error arising from any accidental slip or omission’ and therefore is not authorised by s 71(1)(a) of the PE Act. It is said that the Minister fell into jurisdictional error by making the second correction.

Plaintiffs’ submissions

The plaintiffs referred to and repeated their submissions as to the first correction. They also submitted that:

(a)the Minister had sought to add a new condition on a matter not previously addressed in the permit conditions; and
(b)the introduction of a maximum rotor diameter was too substantial to be corrected under s 71(1)(a).

Minister’s submissions

The Minister submitted:

(a)the proposal for which a permit was sought was based upon the maximum rotor diameter of the wind turbines being 150 m;
(b)modelling of the impacts of the proposal was undertaken on this basis;
(c)the Minister’s assessment of the environment effects of the proposal was based on a maximum rotor diameter of 150 m;
(d)there was no difference of opinion, independent discretion or evaluative judgment as to the maximum rotor diameter of the wind turbines;
(e)the second correction statement of reasons provided a cogent explanation of the omission; and
(f)the omission fell within s 71(1)(a) of the PE Act.

WestWind’s submissions

WestWind made no submission as to ground 9.

Relevant law

The legal principles and law that apply to the first correction apply also to the second correction.[126]
[126]See [208]–[212].

The effect of the correction to the permit condition

The effect of the correction to condition 1(b) is to cap the maximum diameter of turbine rotors at 150 m. The plaintiffs said that they did not oppose the substance of the correction whilst WestWind did not make submissions in support of the correction. If the correction to condition 1(b) were held to be invalid, WestWind as the permit holder would be free to install turbine rotors exceeding 150 m in diameter. The challenge to the second correction has no utility from the plaintiffs’ viewpoint.

The second correction statement of reasons provides an explanation as to how a turbine rotor diameter cap was omitted. It appears that in requiring a maximum height of 230m and imposing a minimum ground clearance of 40m, the need for a condition limiting the maximum rotor diameter was overlooked.

The evidence shows that the environmental impact assessment was made on the basis that the maximum rotor length did not exceed 150 m. If the maximum rotor length were in excess of this figure or if there were no maximum rotor length, the value and applicability of the environmental impact assessment would be reduced.

I accept the evidence that a condition imposing a maximum rotor diameter for the turbine was accidentally or inadvertently omitted. There is no reason to doubt the explanation for the omission given in the second correction statement of reasons.

I also accept that if the Minister had been asked whether a maximum rotor diameter of 150 m should be imposed as a permit condition, he would instantly have agreed. There would have been no hesitation on the part of the Minister in responding to this question, as the Minister’s assessment and all testing of the proposal had been done on this basis. It is not a case where there was a change of position or substantive change to a previously decided condition but rather a situation where a condition that should have been included was omitted.

Conclusion

I accept the Minister’s submissions and the explanation in the second correction statement of reasons. I find that the second correction was within the Minister’s power as conferred by s 71(1)(a) of the PE Act and was valid and effective.

Conclusion

For the reasons given above, no ground for judicial review relied on by the plaintiffs has been substantiated. The plaintiffs’ application for judicial review fails.

The proceeding must be dismissed.

Appendix

SCHEDULE OF PARTIES

HAMMISH CUMMING First plaintiff

ADAM WALTON Second plaintiff

KELLIE WALTON Third plaintiff

THE MINISTER FOR PLANNING First defendant

WESTWIND ENERGY PTY LTD (ACN 109 132 201) Second defendant

Buffer Option	Turbines Lost	Brolgas Lost
No buffers	0	10.48
Final proposed turbine layout	20	9.25
Biosis average home range buffer	29	8.36
[BLA model]	67	5.75
Default 3.2 kilometre buffer	137	2.09

HAMMISH CUMMING	First plaintiff
ADAM WALTON	Second plaintiff
KELLIE WALTON	Third plaintiff
THE MINISTER FOR PLANNING	First defendant
WESTWIND ENERGY PTY LTD (ACN 109 132 201)	Second defendant

[2019] VSC 811

16 December 2019