Hume City Council v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2021 01801

HUME CITY COUNCIL	Plaintiff
v
MINISTER FOR PLANNING	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2022
DATE OF JUDGMENT:	14 April 2022
CASE MAY BE CITED AS:	Hume City Council v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2022] VSC 187

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ADMINISTRATIVE LAW – Judicial review – Amendment to Hume Planning Scheme to facilitate use and development of site to receive tunnel spoil from construction of West Gate Tunnel – Minister’s decision under s 20(4) of the Planning and Environment Act 1987 (Vic) to exempt himself from statutory notice requirements – Whether exemption decision legally unreasonable – Whether Minister had regard to irrelevant considerations – Whether Minister failed to have regard to critically relevant material – Exemption decision not affected by jurisdictional error – Planning and Environment Act 1987 (Vic) ss 17, 18, 19, 20(4), 39(7).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr DJ Batt QC with Ms E Brumby	Marcus Lane Group
For the Defendant	Mr CJ Horan QC with Mr BC Chessell	Matthew Hocking, Victorian Government Solicitor

TABLE OF CONTENTS

Planning Act.................................................................................................................................. 2
Minister’s Reasons........................................................................................................................ 4
Judicial review of exemption decisions under s 20(4) of the Planning Act........................ 13
Legal unreasonableness – ‘interests of Victoria’..................................................................... 20
......... Council’s submissions.......................................................................................................... 21
......... Minister’s submissions......................................................................................................... 23
......... Consideration....................................................................................................................... 26
Legal unreasonableness – compliance not warranted........................................................... 29
......... Council’s submissions.......................................................................................................... 30
......... Minister’s submissions......................................................................................................... 32
......... Consideration....................................................................................................................... 33
Did the Minister have regard to an irrelevant consideration?............................................. 37
......... Council’s submissions.......................................................................................................... 37
......... Minister’s submissions......................................................................................................... 38
......... Consideration....................................................................................................................... 38
Did the Minister fail to consider critically relevant material?.............................................. 41
......... Council’s submissions.......................................................................................................... 41
......... Minister’s submissions......................................................................................................... 41
......... Consideration....................................................................................................................... 42
Disposition................................................................................................................................... 43

HER HONOUR:

On 14 July 2020, Hi-Quality Group Quarry Products Pty Ltd requested the Minister for Planning to amend the Hume Planning Scheme to facilitate the use and development of land at 570-650 Sunbury Road, Bulla as a spoil processing facility associated with the West Gate Tunnel project. The Bulla site, located to the north-west of Melbourne, was one of three that were in contention to receive tunnel spoil from the construction of the West Gate Tunnel. The Minister subsequently prepared Amendment C248hume which would, if approved, apply the Specific Controls Overlay to the site, and insert an Incorporated Document titled ‘Bulla Spoil Processing Facility, March 2021’ into the Hume Planning Scheme.

On 29 March 2021, the Minister made three decisions under the Planning and Environment Act 1987 (Vic) (Planning Act):

(a) a decision under s 20(4) to exempt himself from the requirements of ss 17, 18 and 19 in respect of the Amendment (Exemption Decision);

(b) a decision under s 29 to adopt the Amendment (Adoption Decision); and

(c) a decision under s 35 to approve the Amendment (Approval Decision).

Notice of the approval of the Amendment was published in the Government Gazette on 29 March 2021, as required by s 36(1) of the Planning Act.

The effect of these decisions was to give planning approval for the use and development of the site as the Bulla Spoil Processing Facility, for the receipt, storage, treatment, handling, testing, analysis, containment, placement and removal off-site of spoil generated by the construction of the West Gate Tunnel project. By reason of the Exemption Decision, the Minister was able to make the Adoption Decision and the Approval Decision without first complying with the notice and public submission requirements of Pt 3 of the Planning Act in respect of the Amendment.

In this proceeding, Hume City Council seeks judicial review of the Minister’s decisions of 29 March 2021. It seeks orders in the nature of certiorari, quashing the Exemption Decision, the Adoption Decision and the Approval Decision. Further or alternatively, it seeks declarations that each of the Exemption Decision, Adoption Decision and Approval Decision is invalid and of no effect.

The Council’s case was that the Exemption Decision was affected by jurisdictional error in four ways:

(a) it was legally unreasonable[1] for the Minister to be satisfied that the ‘interests of Victoria’ made an exemption appropriate;
[1]In this judgment, the term ‘legal unreasonableness’ is used to refer to a broad ground of judicial review that encompasses manifest unreasonableness, lack of evident or intelligent justification, irrationality and illogicality.

(b) it was legally unreasonable for the Minister to be satisfied that compliance with the notice requirements in ss 17, 18 and 19 of the Planning Act was ‘not warranted’;

(c) the Minister relied on an irrelevant or prohibited consideration; and

(d) the Minister failed to take into account critically relevant material.

The Council contended that, because the Exemption Decision was unsound, the Adoption Decision and the Approval Decision were each affected by jurisdictional error and consequentially invalid.

For the reasons that follow, none of these grounds is made out. The Exemption Decision was not affected by jurisdictional error, and so the proceeding must be dismissed.

Planning Act

The purpose of the Planning Act is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.[2] Section 4(1) sets out the objectives of planning in Victoria, and s 4(2) sets out the objectives of the planning framework established by the Planning Act.
[2]Planning and Environment Act 1987 (Vic) (Planning Act), s 1.

Part 2 of the Planning Act is concerned with planning schemes, which may include the matters set out in s 6. Part 3 of the Planning Act provides for amendment of planning schemes. Sections 17, 18 and 19 require a planning authority to exhibit and give notice of any amendment it has prepared to a planning scheme. Section 19(1) requires a planning authority to give notice to specified persons, including the owners and occupiers of land that the planning authority believes may be materially affected by the amendment.[3]
[3]Planning Act, s 19(1)(b).

Section 20 identifies some exemptions from these notice requirements. In particular, s 20(4) provides:

The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

I refer in this judgment to ss 17, 18 and 19 and the regulations as the ‘notice provisions’.

Section 20(5) enables the Minister to consult with the responsible authority or any other person before exercising the power under s 20(4).

Where notice of an amendment is given under s 19, any person may make a submission about the amendment to the planning authority.[4] The planning authority is obliged to consider all submissions made by the date set out in the notice.[5] In the case of an amendment prepared by the Minister, submissions are referred to a panel appointed under Pt 8 of the Planning Act, for its consideration, hearing, and report.[6] The planning authority is obliged to consider the panel’s report before deciding whether or not to adopt the amendment.[7]
[4]Planning Act, s 21(1).
[5]Planning Act, s 22(1).
[6]Planning Act, ss 23–5.
[7]Planning Act, s 27(1).

Section 29 provides that, after complying with the notice and public submission requirements of Pt 3, Divs 1 and 2, the planning authority may adopt the amendment with or without changes. Where the Minister is the planning authority, one consequence of an exemption under s 20(4) from the requirements of s 19 is that the Minister does not receive submissions about the proposed amendment, and need not refer them to a panel for consideration, hearing and report, before deciding whether to adopt the amendment.

Section 35(1) then provides for the approval of the amendment by the Minister:

The Minister may—
(a) approve an amendment or a part of an amendment prepared by the Minister or submitted to the Minister under section 31—
(i) with or without changes; and
(ii) subject to any conditions the Minister wishes to impose; or

(b)refuse to approve the amendment or part of the amendment.

An amendment to a planning scheme comes into effect following the publication of a notice of approval in the Government Gazette.[8] An amendment may be revoked wholly or in part by a resolution of either House of Parliament.[9]
[8]Planning Act, ss 36–7.
[9]Planning Act, s 38(2).

Minister’s Reasons

The Exemption Decision was the subject of a detailed brief (Decision Brief) to the Minister prepared by officers of the Department of Environment, Land, Water and Planning (DELWP). The brief was recommended on 18 March 2021 by Dr Jane Homewood, Executive Director, Statutory Planning Services. There were a number of attachments to the brief, including an explanatory report and the proposed Incorporated Document. The brief recommended that the Minister make the Exemption Decision, and adopt and approve the Amendment.

The Minister approved the brief on 29 March 2021, including by signing written reasons for making the Exemption Decision. The Minister’s Reasons are central to the Council’s challenge to the Exemption Decision, and so I will set them out in full:

REASONS FOR DECISION
TO EXERCISE POWER OF INTERVENTION
UNDER SECTION 20(4) OF THE
PLANNING AND ENVIRONMENT ACT 1987
HUME PLANNING SCHEME AMENDMENT C248hume
The Planning and Environment Act 1987 (the P&E Act), the Heritage Act 2017 and the Victorian Civil and Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in planning and heritage processes.
In exercising my powers of intervention, I have agreed to:
•make publicly available written reasons for each decision; and
•provide a report to Parliament at least every 12 months detailing the nature of each intervention.

REQUEST FOR INTERVENTION
1.A request for intervention has been made by Hi-Quality Group Quarry Products Pty Ltd (Hi-Quality) to facilitate the use and development of land for a spoil processing and disposal facility (facility) which is proposed to accept spoil generated from construction of the twin tunnels as part of the West Gate Tunnel project (WGT project).
2. The facility is proposed to be located at the Hi-Quality Sunbury Eco-Hub and adjoining land at 570-650 Sunbury Road Bulla and part of the adjoining Sunbury Road reservation (the site) known as:
·part of 570 Sunbury Road,
·580 Sunbury Road,
·600 Sunbury Road,
·630 Sunbury Road,
·part of 650 Sunbury Road,
·part of the Sunbury Road reserve associated with access upgrades.

THE AMENDMENT
3. The amendment (the Amendment) proposes to apply the Specific Controls Overlay to the site.
4. The Amendment inserts an Incorporated Document, the Bulla Spoil Processing Facility, March 2021 (the Incorporated Document) into the Schedule to Clause 45.12 (Specific Controls Overlay) and in Clause 72.04 (Documents Incorporated into the Hume Planning Scheme). The Amendment also amends the Schedule 1 to Clause 45.11 Infrastructure Contributions Overlay and the incorporated document Sunbury South and Lancefield Road Infrastructure Contributions Plan, November 2019 and makes other related consequential changes to the Hume Planning Scheme.

WHAT POWER OF INTERVENTION IS BEING USED?
5. I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of the Amendment.
6. Section 20(4) of the Act enables the Minister for Planning to exempt himself or herself from any requirements of sections 17, 18 and 19 of the Act or the regulations in respect of an amendment which the Minister prepares if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.
7. I have decided to exercise this power in respect of the Amendment for two independent reasons (either of which I considered sufficient to justify the exemption referred to in the above paragraph in respect of the Amendment): first, I consider that the interests of Victoria make such an exemption appropriate; and second, I consider that compliance with the requirements is not warranted.

BACKGROUND
8. The site for the facility comprises in part a licenced landfill and an operational quarry. Part of the site is proposed to be developed for the spoil processing and disposal facility. The balance of the site will continue to operate under existing approvals that also includes an organic waste recycling facility.
9. The site has been operating as a quarry since 1998 and as a landfill since 2001.
10. The Veolia Organics Facility and the Hi Quality solid inert landfill at Bulla is designated in the Statewide Waste and Resource Recovery Infrastructure Plan (2018) as a “waste hub of state importance”.
11. The Victorian Infrastructure Plan (2017) identifies the WGT project as a state-shaping infrastructure project that will have positive and long-term benefits for all Victorians. The WGT project will provide an alternative to the West Gate Bridge and direct access to the port, generating an $11 billion boost to the Victorian economy. It will contribute to significant improvements across the freeway network, improve freight efficiency and safety, and amenity within the road network and residential areas currently affected by truck traffic.
12. The use of the site for the facility finds strong support in relevant objectives of State policy including Plan Melbourne 2017-2050, Melbourne Industrial and Commercial Land Use Plan, North Growth Corridor Plan, Statewide Waste and Resource Recovery Infrastructure Plan 2018 and also the policies and objectives of the Hume Planning Scheme.
13. Development of the WGT project requires spoil from construction of the project tunnels to be handled, stored, managed and disposed of in an appropriate manner and at a pace that can accommodate the volume of spoil material that will be generated by the machines used to construct the tunnels. For tunneling on the WGT project to commence, there must be one or more suitable facilities capable of receiving the spoil material in an appropriate manner and at the required rate.
14. The Amendment will facilitate the use and development of the site as a facility capable of receiving, storing, handling, testing, analysing, treating and disposing of tunnel spoil from construction of the WGT project, and the reuse, containment or refuse disposal of spoil, or transfer to alternate facilities where necessary.
15. The site is one of three sites that have tendered for contracts to receive WGT project spoil material. Contractual arrangements are expected to be finalised shortly with Hi-Quality and/or other facilities when approved. The Amendment is necessary in order for the contractual arrangements to be entered into.
16. The controls in the Amendment require the facility to be constructed and operated in accordance with the Incorporated Document, which includes conditions to regulate the use and development of the facility and to manage impacts of the facility including managing impact associated with vehicle movement, noise, dust and air quality management, and addressing waterway protection, traffic and vegetation management.
17. I am informed that Hi-Quality has undertaken community consultation and engagement on an earlier version of the Amendment. Consultation was carried out on the proposal to establish the facility including engagement with the Hume City Council, Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation Council Inc., property developers, individuals, local property owners, businesses, environment groups and statutory agencies including Melbourne Airport, Melbourne Water, CFA, SES and Port Phillip and Western Port Catchment Management Authority.
18. The key issues identified in the engagement and consultation were:
a. Community impact;
b. Roads and transport;
c. Environmental impact;
d. Handling of PFAS;
e. Future development; and
f. Transparency and engagement.

19. In August 2020, I sought the views of Hume City Council on an earlier version of the proposed amendment under section 20(5) of the Act. Comments were received from Council on 21 September 2020. Revisions to the amendment documentation were made in response to the comments received from the Council. The draft amendment has also been corrected since consultation to ensure that all land required for the Bulla Spoil Processing Facility is included within the SCO boundary.
20. The Department engaged in discussions with the Department of Transport / VicRoads in relation to the proposed amendment and in particular the conditions in the incorporated document that relate to traffic matters. The feedback provided by the Department of Transport / VicRoads has been taken into account.
21. On 5 March 2021 the Environment Protection Authority Victoria granted an approval under the Environment Protection Act 1970 and the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 of an Environment Management Plan that addresses the detailed environmental assessment of the spoil processing facility and the spoil disposal proposal to ensure the appropriate treatment and containment of the spoil as required by the Environment Protection Act 1970 and regulations to protect human health and the environment.

22. I have received correspondence from members of the community and key stakeholders including Hume City Council, Melton City Council and Brimbank City Council who have advised me of their opposition to the proposal.
23. In summary, issues raised in the correspondence referred to in the above paragraph include:
a) Disposal of spoil that is contaminated by per- and poly fluorinated alkyl substances (PFAS) and other materials;
b) Lack of consultation and inappropriate use of section 20(4) of the Act;
c) Confusion regarding details of the project, given conflicting information they have heard from different sources such as the West Gate Tunnel Project team and Transurban;
d) Potential impact of contaminated spoil on Emu Creek and downstream on Deep Creek and Maribyrnong River;
e) Proximity of new housing estates and proposed community facilities to the site;
f) Operational concerns with the existing landfill operation at the nearby Bulla Tip and Quarry at 500 Sunbury Road, Bulla;
g) Large number of truck movements and pollution from vehicles and potential spills;
h) Impact of truck traffic on the Deep Creek “heritage” bridge in Bulla;
i) No guarantee that contamination will not escape from the site;
j) Potential for ground water contamination;
k) Potential for PFAS to be carcinogenic and impacting on the community;
l) Road and infrastructure damage by the large number of trucks;
m) Noise emissions, dust emissions and light emissions;
n) Technical reports not being available to the community;
o) Traffic conflicts with trucks, pavement damage and added congestion from trucks; and
p) Loss of rural character of the area with increasing development.

24. I consider that the conditions imposed on the approval by the Incorporated Document and the relevant approvals by the Environment Protection Authority including the Environmental Management Plan approved under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 will adequately address the concerns raised by submitters and the Councils relating to the management of environmental impacts associated with the use and development of the site, and will enable the proposed use and development to proceed in a way that is acceptable, and with the various effects able to be managed in an acceptable way, especially when considered in light of, and balanced against, the matters identified above and further below.

BENEFITS OF EXEMPTION
25. The main benefit of the exemption is that it will enable a prompt decision to be made on the adoption and approval of the Amendment. For the reasons outlined below, a prompt decision is, in this case, and when assessed in light of the matters outlined above and further below, warranted.
26. The Amendment proposes to facilitate the use and development of the site for a spoil processing facility capable of receiving, storing, handling, analysing, treating and disposing of tunnel spoil from construction of the WGT project. The Incorporated Document limits the receipt of spoil to spoil generated by the WGT project.
27. Aboveground WGT project works have commenced, and extraction of tunnel material is now delayed pending resolution of a number of disputes relating to the WGT project, including relevantly, the tunnel spoil disposal arrangements. The substantial benefits to the State of the WGT project are therefore being delayed by the lack of appropriate (ie, legally approved) facilities for the receipt and processing of spoil associated with the WGT project. To avoid further delays to the WGT project works, one or more appropriate spoil processing facilities for the WGT project are urgently required to process the soil associated with the WGT project.
28. It is necessary to secure the necessary approvals for the sites being considered before the tender for the disposal of the WGT spoil is awarded. It is important to ensure that a number of sites are included in the tender process to ensure that tenders are competitive. It is important that a decision on the tender for the disposal of the WGT spoil can be made by taking into account whether or not any tenderer has obtained the necessary approvals, so that the probability of the project being further delayed by reason of the failure to obtain any approval can be assessed. The delay associated with complying with the requirements of sections 17, 18 and 19 of the Act and the regulations in relation to the Amendment will, if the facility secures a contract to receive WGT project spoil without compliance with those requirements being exempted, delay the construction of the facility and its ability to receive WGT project spoil, compounding the delay to the commencement of tunnelling on the WGT project.
29. The exemption of the Amendment from the requirements of sections 17, 18 and 19 of the Act and the regulations will mean the State significant benefits of the WGT project are able to be facilitated and realised sooner and the social and economic consequences associated with further delay to the WGT project works in securing approvals for suitable sites for the processing of spoil can be avoided.

EFFECTS OF EXEMPTION
30. The Amendment facilitates a use and development of land that may impact on third parties. The effect of exemption is that third parties will not receive statutory notice of the Amendment and will not have the opportunity to make a submission in relation to the Amendment, and for those submissions to be considered by a panel.
31. I am informed that Hi-Quality undertook targeted third party consultation and engagement with Hume City Council and key stakeholders and members of the community on an earlier version of the Amendment and the likely impacts of the activities proposed to be authorised by the Amendment. The persons who were the subject of those targeted third party consultations were given the opportunity to raise any issues or concerns about the impacts of the proposed use and development. In preparation of the Amendment, I have considered the comments of the Hume City Council, key stakeholders and members of the community.
32. Additionally, in August 2020 I sought the views of Hume City Council in relation to the form and content of an earlier version of the Amendment and request that I exercise my power under section 20(4) of the Act to exempt the Amendment from the notice requirements of the Act and the regulations. Council has informed me that it objects to the request to advance the Amendment request under Section 20(4) of the Planning and Environment Act 1987 and the use of the Hi-Quality site at 570 – 650 Sunbury Road, Bulla for the storage, testing and disposal of soil from the West Gate Tunnel project.
33. However, the land on which the facility is proposed to be constructed and operated is separated from sensitive land uses and is currently used in part as a licenced landfill and an operating quarry. I consider that this limits the likely range of impacts and issues, and together with the consultation carried out, means a formal exhibition process for the Amendment is unlikely to identify any new issues which were not considered as part of the consultation for the facility and preparation of the Amendment, or result in any significant changes to the Amendment.
34. As outlined above, there is an urgent need for one or more spoil processing and disposal facilities to receive spoil from the WGT project so that tunneling can commence. The benefits of an exemption from sections 17, 18 and 19 of the Act and the regulations may be significant, in that, subject to contractual arrangements, the early availability of the facility will reduce the on-going delay to construction and ultimate completion of the WGT project. The commencement of construction as early as possible will bring forward economic stimulation and jobs, and the completion of the project will bring forward the State significant benefits described above. In light of the current and predicted economic environment, I consider that these benefits are urgent for the economic and social wellbeing and interests of Victorians. The exemption from sections 17, 18 and 19 will enable the commencement of construction earlier than would be possible if time was taken to comply with those sections.
35. Accordingly, I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act outweigh any effects of the exemption on third parties.

DECISION
36. I have decided to exercise my power to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of the Amendment.

REASONS FOR DECISION
37. I provide the following summary of the key reasons for my decision (which summary is not intended to detract from the detailed reasons set out above) to exercise my power under section 20(4) of the Act.
38. I am satisfied that -
Compliance with any of the requirements of sections 17, 18 and 19 of the Act and the regulations is not warranted because:
·The views of relevant third parties who may be materially affected by the Amendment are reasonably well known and have been considered during the preparation of the Amendment.
·Further notification and consultation would be unlikely to result in any substantive changes to the Amendment.
·The delivery of the WGT project will contribute to State significant improvements across the freeway network, improve freight efficiency and safety, as well as make significant amenity improvements within the road network and residential areas currently affected by truck traffic. The WGT project will also generate substantial economic activity and jobs for Victorians.
Relevantly:

o The prompt adoption and approval of the Amendment will support the timely delivery of the facility, which will in turn, subject to contractual arrangements, reduce the ongoing delay to the delivery of the WGT project.
o Exhibition of the Amendment, review of submissions and a panel hearing would result in further delay to the delivery of the State significant benefits of the WGT project, which delay would undermine the possibility of the project furthering, or the extent that the project furthers, the interests of Victoria.
o In light of the current and predicted economic environment arising from the impacts associated with COVID-19, facilitating the approvals required to ensure the commencement of the WGT Project in order to realise the State significant benefits of the WGT project are needed urgently, and more urgently than I expect would be possible in the event that the requirements in sections 17, 18 and 19 of the Act and the regulations were complied with.

The interests of Victoria or any part of Victoria make such an exemption appropriate because:
·The delivery of the WGT project will contribute to State significant improvements across the freeway network, improve freight efficiency and safety, as well as make significant amenity improvements within the road network and residential areas currently affected by truck traffic. The WGT project will also generate substantial economic activity and jobs for Victorians.
Relevantly:
o The prompt adoption and approval of the Amendment will support the timely delivery of the facility, which will in turn, subject to contractual arrangements, reduce the ongoing delay to the delivery of the WGT project.
o Exhibition of the Amendment, review of submissions and a panel hearing would result in further delay to the delivery of the State significant benefits of the WGT project, which delay would undermine the possibility of the project furthering, or the extent that the project furthers, the interests of Victoria.
o In light of the current and predicted economic environment arising from the impacts associated with COVID-19, facilitating the approvals required to ensure the commencement of the WGT project in order to realise the State significant benefits of the WGT project are needed urgently and more urgently than I expect would be possible in the event that the requirements in sections 17, 18 and 19 of the Act and the regulations were complied with.

Judicial review of exemption decisions under s 20(4) of the Planning Act

This proceeding is not about the planning merits of the decisions made by the Minister on 29 March 2021. It is a judicial review proceeding, which is concerned with the lawfulness of the Minister’s decisions.[10] The Court may only grant relief of the kind sought by the Council if it is satisfied that the decisions were affected by one or more distinct categories of error — jurisdictional error, want of procedural fairness, fraud, or error of law on the face of the record.[11] As noted, in this proceeding the Council argues that the Exemption Decision was affected by various forms of jurisdictional error, with the result that the Adoption Decision and the Amendment Decision were also invalid.
[10]See Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36–8 (Brennan J); East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [112] (Warren CJ), [175] (Ashley and Redlich JJA).
[11]Craig v South Australia (1995) 184 CLR 163, 175–6.

The path taken by the Council in this proceeding is a well-trodden one, which was first mapped out in East Melbourne Group Inc v Minister for Planning.[12] That case involved a challenge to a planning scheme amendment made by the Minister, which permitted redevelopment of land near the Hilton Hotel in East Melbourne, and followed an exemption decision made under s 20(4) of the Planning Act. A local residents’ group brought a judicial review proceeding against the Minister, arguing that she had acted unlawfully in making the exemption decision and hence in adopting and approving the planning scheme amendment. In East Melbourne Group, as here, the Minister had provided a statement of reasons for her exemption decision.[13] As in this case, the Minister’s adoption and approval of the amendment was said to be invalid because the exemption decision was invalid. In contrast with this case, it was not in contest that the single reason for the exemption decision given in the Minister’s statement of reasons was ‘wholly implausible’.[14]
[12](2008) 23 VR 605, on appeal from East Melbourne Group Inc v Minister for Planning (2005) 12 VR 448 (East Melbourne Group (first instance)).
[13]The reasons were provided voluntarily, pursuant to a commitment made in the Planning Practice Note 29 — Ministerial Powers of Intervention in Planning and Heritage Matters, issued by the Department of Sustainability and Environment in November 2004. The Practice Note provides that in using powers of intervention, the Minister will ‘make publicly available written reasons for each decision, including an explanation of how the circumstances of the matter responded to this Practice Note and the legislative criteria for that action’. See East Melbourne Group, [227]–[228] (Ashley and Redlich JJA).
[14]East Melbourne Group, [332] (Ashley and Redlich JJA).

A central controversy in East Melbourne Group was whether the Minister was bound by and confined to her published statement of reasons for the exemption decision. By a majority, the Court of Appeal disagreed with the trial judge’s conclusion that the Minister’s true reasons could be gleaned from other public documents, in addition to her statement of reasons.[15]
[15]East Melbourne Group, [308]–[313] (Ashley and Redlich JJA); cf [121]–[122] (Warren CJ) and East Melbourne Group (first instance), [61]–[62].

A second controversy of importance concerned the effect of s 39 of the Planning Act. Section 39 provides:

Defects in procedure
(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.
(2) In addition to any other party to the proceeding the parties to a proceeding before the Tribunal under this section are—
(a) the person who referred the matter to the Tribunal; and
(b) the Minister; and
(c) the planning authority.

(3) If a matter referred to the Tribunal under this section involves a failure by a panel to comply with Division 2 or this Division or Part 8 the panel (or a member of the panel authorised by the panel to act on its behalf) is entitled to make a written or oral submission to the Tribunal before the Tribunal completes the hearing of the matter.
(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following—
(a) make any declaration that it considers appropriate;
(b) direct that—
(i) the planning authority must not adopt the amendment or a specified part of the amendment; or
(ii) the Minister must not approve the amendment or a specified part of the amendment—

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.
* * * * *

(7)An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.
(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.
…

Section 39 was in the same form when the Minister made the Approval Decision as it was when East Melbourne Group was decided in 2008.[16]

[16]See East Melbourne Group, [363] (Ashley and Redlich JJA). Subsequently, a new sub-s 39(9) was added, concerning a planning scheme prepared by the Suburban Rail Loop Authority.

At trial, Morris J dealt with a submission advanced by the owner of the land affected by the amendment, that s 39(7) was a bar to the relief sought by the plaintiff.[17] The landowner’s submission relied on the analysis of Brooking J in Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development.[18]
[17]East Melbourne Group (first instance), [88]–[101].
[18][1993] 1 VR 627 (Grollo).

When Grollo was decided, s 39(2) of the Planning Act was in substantially the same terms as the current s 39(7). Justice Brooking considered that ‘[f]ailures of any kind and degree to comply with the requirements of ss 17-19, proceeding from any cause, can be described as “defects in procedure”’.[19] In addition, the words ‘any failure to comply’ were perfectly general, were not to be read down, and extended to a total failure to comply, at least where it was not a knowing failure.[20] His Honour said:[21]

With an instrument which is either an amendment to a planning scheme or a whole new planning scheme (see s 8(8)), one can well understand its being thought necessary by Parliament notwithstanding prior defects, even though serious and resulting in injustice, to place beyond question the validity of an instrument which may well by the time it comes to be attacked have been acted upon by many persons, in many ways and in many important matters.
…
On the assumption that there was in this case a failure to comply with any of the requirements of ss 17-19, the amendment is, in consequence of s 39(2), not made invalid by that failure.

[19]Grollo, 644.

[20]Grollo, 646.

[21]Grollo, 644. This analysis was obiter, since Brooking J had found no error in the exemption decision.

Justice Morris took a different view:[22]

From my part, I doubt that the Parliament was intending to distinguish between intentional failures to comply and unintentional failures to comply. Rather I think the distinction was between failures of a procedural kind—which the privative provision protected—and failures sometimes categorised as “substantive ultra vires” which infect the making of the decision in a manner whereby it was not made according to law. Put another way, s 39(7) was not intended to provide a licence for a planning authority or a minister to go beyond the confines of the Act.

[22]East Melbourne Group (first instance), [93].

His Honour referred to several decisions of the High Court involving the interpretation of privative clauses that post-dated Grollo,[23] and continued:[24]

In my opinion, if one applies the approach articulated by the High Court in its recent decisions, it is not tenable to conclude that s 39(7) of the Act is intended to prevent a challenge to the exercise of the minister’s powers to exempt herself from the notification requirements in relation to an amendment or to adopt or approve an amendment, when that challenge is based upon jurisdictional error or substantive ultra vires. The Act identifies clear limits for the exercise of these powers. For example, in the context of s 20(4) the minister must consider that compliance with the notification requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate. It cannot have been Parliament’s intention to have imposed such limits, with the one hand, and then to have taken away any prospect of enforcing those limits, with the other hand. … If s 39(7) of the Act is interpreted so as to prevent a challenge to a decision of a planning authority or minister based upon jurisdictional error or substantive ultra vires, this would disable the courts from properly exercising their responsibility to ensure that executive and administrative powers were exercised according to law. Hence such an interpretation should be rejected.

[23]Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441.

[24]East Melbourne Group (first instance), [101].

The majority in the Court of Appeal agreed, holding:[25]

It is integral to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. So privative clauses are strictly construed.
In our opinion, there is nothing express, or necessarily to be implied, in the legislative instrument which requires s 39(7) to be construed so as to deny a court the capacity to examine, for error of the kinds alleged in this proceeding, a decision to exempt a proposed amendment from the notification requirements of the Act; or to deny a court the power to make orders which strike down the consequences of a fatally flawed exercise of the exemption discretion. Section 39(7) is concerned with a “failure to comply” with the specified parts of the Act. In our opinion, that strongly supports a conclusion that the subsection addresses, as the heading to the section states, “defects in procedure”. Further, only where an amendment has not been approved does the section expressly state, by subs (8), that a person cannot bring an action in respect of non-compliance with, inter alia, Divs 1 or 2 of Pt 3. Why permit action if it could lead nowhere?

[25]East Melbourne Group, [367]–[368] (Ashley and Redlich JJA) (citations omitted). The Chief Justice did not consider the effect of s 39(7).

Their Honours noted that Brooking J’s analysis in Grollo was not necessary to his decision, and that it appeared not to have been argued in that case that ‘want of compliance constituted jurisdictional error which vitiated the exercise of the discretion’.[26] They concluded:[27]

For the reasons which we have stated, and also substantially for the reasons given by his Honour, we agree with him that s 39(7) only addresses non-compliance with procedural requirements; and that it does not apply to decisions which are tainted by jurisdictional error. The provision, when considered within the context of the whole legislative instrument, is not intended to remove the court’s capacity to ensure that administrative powers are exercised according to law. In consequence, the end product of a fatally flawed exercise of the exemption discretion is not protected against relief at the instance of a person with sufficient standing.

[26]East Melbourne Group, [369] (Ashley and Redlich JJA).

[27]East Melbourne Group, [370] (Ashley and Redlich JJA) (citations omitted).

This conclusion is of course binding on a single judge of this Court. If I were to find the Exemption Decision invalid for jurisdictional error, I would also be bound to conclude that the Amendment was not validly approved. However, I would be uncertain why that was so, in light of the plain words of s 39(7) of the Planning Act.

At least since the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority,[28] it has been settled that a failure to comply with a statutory requirement does not necessarily result in the invalidity of the end product. Whether it does ‘depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply’ with the requirement, ‘by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition’.[29] Section 39(7) appears to me to be a clear expression of legislative purpose that ‘any failure’ to comply with a requirement of Pt 3, Divs 1, 2, or 3 of the Planning Act, which include ss 17, 18, 19 and 29, does not make invalid any amendment that has been approved under s 35. The approval by the Minister of a planning scheme amendment under s 35 of the Planning Act involves the making of delegated legislation, as distinct from the exercise of an administrative discretion under s 20(4).[30] Like Brooking J in Grollo, I can well understand why Parliament might have chosen to put beyond question the validity of an amendment that has come into operation and may have been ‘acted upon by many persons, in many ways and in many important matters’.[31] That would be consistent with Parliament having reserved for itself the power to revoke an amendment, including an amendment approved following an exemption decision under s 20(4).[32]
[28](1998) 194 CLR 355 (Project Blue Sky).
[29]Project Blue Sky, [91] (McHugh, Gummow, Kirby and Hayne JJ).
[30]Ventana Pty Ltd v Federal Airports Corporation (1997) 75 FCR 400, 410; Seventh Columbo Pty Ltd v Melbourne City Council (1998) 100 LGERA 93, 99; MA Zeltoff Pty Ltd v Stonnington City Council [1999] 3 VR 88, [26].
[31]Grollo, 644, quoted at [23] above.
[32]Planning Act, s 38.

Since East Melbourne Group was decided in 2008, there has been no occasion to apply this aspect of the Court of Appeal’s reasoning, let alone revisit it. That is because none of the subsequent challenges to the lawfulness of an exemption decision made under s 20(4) of the Planning Act have succeeded.[33]
[33]See Lower Our Tracks Inc v Minister for Planning (2016) 219 LGERA 352; Mackenzie v Head, Transport for Victoria [2020] VSC 328; W Everton Park Pty Ltd v Minister for Planning [2021] VSC 465; Tok Holdings Pty Ltd v Minister for Planning [2021] VSC 470; Melton City Council v Minister for Planning [2021] VSC 700; Moorabool Shire Council v Minister for Planning [2021] VSC 701.

There are some obvious reasons why subsequent exemption decisions have withstood scrutiny on judicial review. First, there is little scope to challenge an exemption decision on procedural grounds. Section 20(5) of the Planning Act permits, but does not oblige, the Minister to consult with the responsible authority or any other person before exercising the exemption power in s 20(4). While the Minister may choose to consult with any person, there is no obligation to afford procedural fairness to persons who may be affected by the decision.[34] The content and quality of any consultation undertaken by the Minister under s 20(5) is ‘not a legal issue, but a political one’.[35]
[34]Planning Act, s 20(5); Grollo, 638–640; East Melbourne Group (first instance), [70]–[75].
[35]Lower Our Tracks, [183]; Moorabool, [97].

Second, the power in s 20(4) is enlivened if the Minister considers that compliance with any of the requirements of the notice provisions is not warranted, or that an exemption would be in the interests of Victoria or any part of it. Both of these threshold matters involve the Minister making a discretionary value judgment. In both cases, it is for the Minister to identify the matters that bear on his assessment, and to determine the weight to be attributed to those matters.[36]
[36]East Melbourne Group, [112], [126], [144]–[150] (Warren CJ), [341], [352]–[353] (Ashley and Redlich JJA).

Third, having formed one or both of the necessary opinions, the Minister’s discretion to exempt himself or herself is governed only by the subject matter, scope, and purpose of the Planning Act.[37] The statute does not expressly prescribe any matters that must, or must not, be taken into account. Within the bounds of legal reasonableness, it is for the Minister to determine what matters are relevant to the exercise of his discretion, and the balance to be struck.[38] It is therefore no easy matter for a plaintiff to demonstrate that the Minister had regard to an irrelevant consideration, or failed to consider a matter that had to be taken into account.
[37]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); East Melbourne Group, [125] (Warren CJ), [341] (Ashley and Redlich JJA).
[38]Peko-Wallsend, 39–41 (Mason J).

Perhaps for that reason, the grounds of review in a proceeding such as this one often include legal unreasonableness. The ground can be framed in various ways, including that no reasonable Minister could have made the exemption decision, that it was manifestly unreasonable, that it lacked an evident and intelligible basis, or that it was irrational and illogical. The ground is not a pretext for merits review. The test for legal unreasonableness is stringent, and allows considerable room for reasonable minds to differ.[39] A reviewing court will not lightly conclude that the formation of one of the threshold opinions, or the exercise of the discretion, was manifestly unreasonable or without intelligible foundation.
[39]East Melbourne Group, [110]–[112] (Warren CJ), [179]–[184] (Ashley and Redlich JJA); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]–[76] (Hayne, Kiefel and Bell JJ), [105]–[113] (Gageler J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [121]–[131], [135] (Crennan and Bell JJ). See also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1, [29]–[35].

Legal unreasonableness — ‘interests of Victoria’

The Council relied on the following matters to support its contention that it was legally unreasonable for the Minister to consider that it was in the interests of Victoria or any part of Victoria to make the Exemption Decision:[40]
[40]Originating Motion for Judicial Review filed 28 May 2021, [8] – omitting some aspects of this ground that were not pressed at trial: see Transcript, 15:26–16:30.

(a) The Reasons disclose that the essential reason for the Minister considering as set out in subparagraph 7(a) above[41] was that he considered that there was a need for urgency in adopting and approving the Amendment, in order for “one or more” legally approved facilities to be available to receive and process tunnelling spoil, so that there would not be further delay in the commencement of tunnelling for the WGT project and, consequentially, in the completion of the project and the realisation of its benefits. The Reasons disclose that the Minister considered that exempting himself from the requirements of the Relevant Provisions[42] in respect of the Amendment would allow commencement of tunnelling and thus the completion of the WGT project and realisation of its benefits sooner than would be the case if the requirements of the Relevant Provisions were complied with. See Reasons [13], [25], [27], [28], [29], [34], [38].
(b) It was unreasonable and/or irrational for the Minister to consider as referred to in subparagraph (a) of these particulars, for the following reasons:
(1) First, at the time of the Exemption Decision, any need for there to be “one or more” legally approved facilities which could receive and process spoil from the tunnelling for the WGT project, in order for such tunnelling to commence, was already satisfied. This was because two other facilities had been granted such approval in November 2020, namely the Maddingley Brown Coal Facility in Moorabool (the subject of Amendment C95moor) and the Ravenhall Spoil Processing Facility in Melton (the subject of Amendment C222melt). The Minister was aware of those approvals, as he exercised his power under s 20(4) of the P&E Act in respect of those amendments, and prepared, adopted and approved them, on 19 November 2020. The Minister did not refer to those matters or their ramifications for the Exemption Decision in the Reasons.
(2) Second, at the time of the Exemption Decision, there were multiple extant causes of delay to the commencement of tunnelling for the WGT project, only one of which concerned where spoil would be stored and processed. The Minister was aware of this circumstance. The Reasons at [27] state “extraction of tunnel material is now delayed pending resolution of a number of disputes relating to the WGT project”. The other extant causes of delay included: (a) a dispute between Transurban WGT Co Pty Ltd, the company engaged by the State of Victoria to design, construct, commission, finance and operate the West Gate Road tunnels, and the subcontractor engaged by Transurban to design and construct the tunnels, which dispute relevantly concerned claims by the subcontractor that the subcontract terminated on 28 January 2020, was void from inception, had been frustrated, or should be set aside; (b) a related dispute between the State and Transurban… The Minister made the Exemption Decision notwithstanding this circumstance and without referring in the Reasons to whether any and if so what further information was known to him or his Department as to the nature, status and other details of these other causes of delay.
(3) Third, the Minister did not prepare the Amendment and make the Exemption Decision until more than eight months after he had received Hi-Quality’s request that he do so. In those circumstances, it was not reasonably or rationally open to the Minister to rely on the perceived need for urgency as a basis for exempting himself from the requirements of the Relevant Provisions in respect of the Amendment.

(c) Further, in purportedly considering as referred to in sub-paragraph 7(a) above, it was unreasonable and/or irrational of the Minister to identify, as he did at Reasons [15] and [28], an urgent need for the Amendment on the basis of considerations relating to the requirements, efficacy, competitiveness and timing of the private tender process by which the relevant subcontracting company would let a contract to one or more facilities to receive and process spoil from the tunnelling for the WGT project.
[41]Namely, that the interests of Victoria or part of Victoria made exemption from the requirements of the notice provisions appropriate.
[42]The ‘Relevant Provisions’ were defined in the originating motion to be ss 17, 18 and 19 of the Planning Act and the regulations — referred to in this judgment as the ‘notice provisions’.

Council’s submissions

The Council submitted that there were four aspects of the Minister’s reasoning that demonstrated that the Minister had acted unreasonably or irrationally in concluding that the interests of Victoria made the exemption appropriate.

The first aspect was the Minister’s finding that there was an ‘urgent’ need to secure approval of ‘one or more’ sites for use as spoil processing facilities. This was said to be irrational because, at the time of the Exemption Decision, there were already two sites that had received planning approval for use as spoil processing facilities. The Minister had already approved planning scheme amendments for sites in the Moorabool Shire and the City of Melton, in November 2020. The Council submitted that this fact severed any rational causal connection between the Minister’s finding of urgency and the evidence before him. It argued that, on any reasonable view, the desired result had already been achieved, because ‘one or more’ sites had already been approved.

The Council pointed out that the Minister made no finding in his Reasons that approval of the site was urgent because his approvals of the other two sites were the subject of judicial review proceedings in this Court. The Council submitted that I should not infer that the pending litigation had any bearing on the Minister’s thinking, because the Reasons did not advert at all to the proceedings, or any perceived relevance of them.

The second aspect of the Minister’s reasoning impugned by the Council was his opinion that approval of the Amendment would avoid, or at least reduce, further delay to the West Gate Tunnel project. The Council argued that no rational or logical justification for this view could be discerned from the Reasons. It noted that the Reasons recorded that the commencement of tunnelling was delayed by ‘a number’ of disputes, including in relation to spoil disposal arrangements. The Council submitted that, by necessary implication, there were other, unrelated disputes contributing to the delay, which would not be resolved by the Amendment. Therefore, it argued, it was not open to the Minister to conclude that making the Exemption Decision would avoid or reduce further delay.

Third, the Council pointed out that more than eight months had elapsed between Hi-Quality’s request for an exemption, and the making of the Exemption Decision. It submitted that, in those circumstances, it was unreasonable for the Minister to rely on a perceived urgency as a basis for exempting himself from the requirements of the notice provisions.

Fourth, the Council argued that it was erroneous and illogical for the Minister to reason that ‘the Amendment is necessary in order for contractual arrangements to be entered into’ with ‘one of three sites that have tendered for contracts’ to receive spoil from the West Gate Tunnel project. The Council said that this conflated the necessity or desirability of the Amendment itself with the necessity or desirability of exemption from the notification requirements.

More fundamentally, the Council submitted that it was a requirement of the head contractor for the project, Transurban WGT Co Pty Ltd, and its sub-contractor, CPB Contractors Pty Ltd, that the planning approvals be in place before the tender for the facility was awarded, and that the preferred procurement method of these private entities lacked any rational connection with the exemption power in s 20(4). The Council said that the absence of any logical or rational connection between the exemption power and Transurban’s tendering requirements was shown by the circumstance that, if Hi-Quality was not the successful tenderer, the approved use and development would not be able to proceed. The Minister purported to use the exemption power knowing that it might be of no utility — hence, the Council submitted, it could not reasonably be concluded that the exemption was ‘necessary’.

Taking these matters together, the Council contended that the Minister acted unreasonably or irrationally in concluding that the interests of Victoria made the exemption appropriate.

Minister’s submissions

The Minister summarised his reasons for being satisfied that the Exemption Decision was in the interests of Victoria as follows:

(a) the delivery of the West Gate Tunnel project would significantly improve Victoria’s freeway network and freight efficiency, improve the amenity of Victoria’s road network, and generate substantial economic activity and jobs for Victorians; and

(b) the prompt approval of the Amendment would support the timely delivery of the spoil processing facilities that were ‘urgently required’ to process the spoil associated with the West Gate Tunnel project, and would thereby reduce the ongoing delay (and reduce the risk of further delay) to the delivery of the project.

After pointing out that urgency had been identified in East Melbourne Group as a ‘potent consideration’ in the exercise of the discretion under s 20(4) of the Planning Act, the Minister responded to each aspect of the Council’s argument on this ground.

As to the Council’s first argument that the Minister’s finding of urgency was irrational because there was already planning approval for ‘one or more’ sites for use as spoil processing facilities, the Minister submitted that the argument rested on a false premise. The Minister argued that, reading the Reasons fairly and as a whole, it was apparent that:

(a) the Minister considered that there was an urgent and unsatisfied need for appropriate spoil processing facilities at the time of the Exemption Decision, because the West Gate Tunnel project was being delayed by the lack of such facilities and because the procurement processes were still underway;

(b) the Minister’s findings in respect of urgency were informed by those processes, including the importance of having the necessary statutory approvals in place before their completion; and

(c) the Minister understood that the Exemption Decision would enable a decision on the tender to be made promptly, which would in turn reduce the risk of further delay to the West Gate Tunnel project and the realisation of the expected benefits of the project for Victoria.

The Minister characterised the ‘sought after result’ as the completion of the tender process, the construction of at least one spoil processing facility, and the expeditious delivery of the West Gate Tunnel project — not simply the granting of planning approval for one or more sites. He submitted that the urgent need for one or more spoil processing facilities referred to in the Reasons should be understood as a need for at least one facility to be established and approved to receive spoil in order for tunnelling to commence. The approval of a planning amendment in relation to any site was necessary but not sufficient for the operation of such a facility. The Minister pointed out that the two other potential sites might prove unsuitable or insufficient to receive the volume of spoil that would be generated by the West Gate Tunnel project.

Against that background, the Minister submitted, it was both reasonable and rational for him to consider that there was an urgent need for operational spoil processing facilities, and that prompt approval and adoption of the Amendment would support timely delivery of a facility that might meet that need.

In relation to the second aspect of the Council’s argument, the Minister noted that the Reasons did not suggest that the lack of planning approval for the site was the only cause of delay. Instead, the Reasons acknowledged that there were other causes of delay, while concluding that granting the exemption would ensure that the delays affecting the West Gate Tunnel project were not compounded by the requirements of the notice provisions. The Minister submitted that there was no logical imperative for him to deal separately and sequentially with each potential cause of delay. Rather, the Minister submitted that it was rational to address all potential causes of delay concurrently, and to deal with each individually and as expeditiously as possible.

As to the third matter, the Minister submitted that the need for appropriate spoil processing facilities remained urgent at the time the Exemption Decision was made, because the tender process had not been completed. He argued that there was nothing remarkable about the length of time that had passed between Hi-Quality’s request and the making of the Exemption Decision. Some of that time was taken up by consultation with affected parties, including the Council, peer-reviewing the draft Amendment and associated technical reports, and revising the Amendment in response to comments received from affected parties.

In response to the fourth matter raised by the Council, the Minister said that there was an evident and intelligible link between, on the one hand, an effective and timely tender process and, on the other, the delivery of the West Gate Tunnel project and the benefits associated with it. He argued that the link did not cease to exist simply because Hi-Quality was one of several tenderers. In the Minister’s submission, the main flaw in the Council’s argument was the assumption that the contractor’s procurement preferences could not inform his assessment of the interests of Victoria. He said that this assumption was invalid, and that it made no difference whether the need to secure planning approvals before the award of the tender was based on some requirement of Transurban or a formal requirement of the Victorian planning system.

Further, and in any event, the Minister said that he had independently reasoned that the prior planning approval was important so that the decision on the tender could assess the probability of the project being further delayed by a failure to obtain planning approval. He rejected the suggestion that it was irrational to exercise the power in s 20(4) in circumstances where the use and development of the site could only proceed if Hi-Quality’s tender was successful. The Minister said that the decision had utility in circumstances where it remained a real possibility that Hi-Quality might soon be awarded a contract to construct and operate a spoil processing facility for the West Gate Tunnel project.

Consideration

The Council accepted that I should not engage in ‘formalistic parsing’ of the Reasons, and should read them fairly, as a whole, and in context.[43] However, the reality was that much of its argument proceeded from a rigid construction of isolated phrases in the Minister’s Reasons.
[43]Transcript, 18:29–31, referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

In particular, the Council’s argument about urgency was based on an unduly narrow reading of the Minister’s statement that ‘there is an urgent need for one or more spoil processing and disposal facilities to receive spoil from the WGT project’.[44] This statement was clearly about more than a need for planning approval for at least one facility. It spoke of a need for one or more facilities to receive the tunnel spoil from the West Gate Tunnel project — that is, operational facilities with the required planning and environmental approvals, which could accommodate the volume of spoil to be generated, and for which commercially acceptable contracts had been concluded. The urgency identified by the Minister was tethered to the need for tunnelling to commence, which could not occur until there was somewhere suitable to put the spoil.
[44]Reasons, [34].

It follows that I do not consider that there was anything irrational about the Minister’s finding that there was an urgent need for tunnel spoil processing facilities, or that making the Exemption Decision would assist in meeting that need.

I have reached the same conclusion in relation to the Council’s submission that the Exemption Decision addressed only one of the multiple causes of delay to the West Gate Tunnel project. I do not accept the Council’s argument that the Exemption Decision was ineffective to address the delay, and irrational for that reason.

It was readily apparent from the material before the Minister that the lack of any facility to receive tunnel spoil was a very substantial cause of delay on the West Gate Tunnel project. It had given rise to a number of disputes, including a dispute between the head contractor for the project, Transurban, and its subcontractor, CPB.[45] While there may have been other matters contributing to the delay, there was no detail about them in the Reasons, the Decision Brief, or other evidence in the proceeding. I accept that, on its own, the Exemption Decision was unlikely to resolve all of the causes for the delay in starting tunnelling. However, it was not necessary for the Minister to be satisfied that it would have that effect. The Minister could reasonably take the view that expediting planning approval for one potential tunnel spoil facility would reduce a substantial cause of the delay, and hence support the timely completion of the project.
[45]Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd [2020] VSC 476, [9]–[10], [82]–[83].

The third aspect of the Minister’s reasoning that the Council said was irrational was that he considered the Amendment to be urgent when eight months had gone by since Hi-Quality first requested the Amendment. I was unsure if this argument was that the Minister’s finding of urgency lacked credibility because of the lapse of time, or that there would have been no (or less) urgency if the Minister had made a decision more promptly. Either way, the fact remained that the Minister had to assess urgency at the time he made the Exemption Decision. At that time, the material before the Minister supported a conclusion that there remained an urgent need for one or more spoil processing facilities, and that tunnelling could not commence until at least one facility was ready to receive the spoil. That was not affected by the eight months that had elapsed since Hi-Quality’s request; despite the passage of time, it was reasonably open for the Minister to find that a spoil processing facility was urgently required.

As to the fourth aspect, I do not agree that the preferred procurement process of Transurban and CPB was not rationally connected with the interests of Victoria. The Council did not take issue with the Minister’s findings that the West Gate Tunnel project is a ‘state-shaping infrastructure project that will have positive and long-term benefits for all Victorians’.[46] Nor did it dispute that the project had stalled because there was no facility to receive the spoil that would be generated once tunnelling commenced.
[46] Reasons, [11].

On that basis, it was reasonably open to the Minister to conclude that it was ‘necessary to secure the necessary approvals for the sites being considered before the tender for the disposal of the WGT spoil is awarded’,[47] in order to ensure that the tenders were competitive and a decision could be made knowing that all tenderers had obtained the required approvals. While this was not the only conclusion open to the Minister, it was a rational way to proceed.
[47]Reasons, [28].

This is not altered by the fact that the use and development of the site approved by the Amendment would not go ahead if Hi-Quality was not awarded the tender. The Minister clearly considered that there was utility in expediting the Amendment to enable the timely completion of the tender process, whether or not Hi-Quality was a successful tenderer. Logically, the ongoing delays to the West Gate Tunnel project would not have been reduced if Transurban and CPB had awarded the tender to a bidder that had not secured, and might never secure, the planning and environmental approvals needed to operate a tunnel spoil processing facility on its site.

For those reasons, I am not persuaded by the Council’s submission that the Minister’s conclusion that the interests of Victoria or any part of Victoria made the exemption appropriate was legally unreasonable.

Legal unreasonableness — compliance not warranted

The Council also contended that it was legally unreasonable for the Minister to consider that compliance with the requirements of ss 17 to 19 of the Planning Act was not warranted. It relied on the following grounds set out in its originating motion:

(e) The Minister purportedly considered as set out in sub-paragraph 7(b)[48] above based on a composite of three purported matters, as set out in [38] of the Reasons on page 5, namely:
[48]Namely, that compliance with the requirements of ss 17 to 19 of the Planning Act and the regulations was not warranted.
(1)that the views of relevant third parties who may be materially affected by the Amendment were reasonably well known and had been considered during the preparation of the Amendment;
(2) that further notification and consultation would be unlikely to result in any substantive changes to the Amendment;
(3) that certain identified improvements and benefits would flow from delivery of the WGT project, as referred to in the third bullet point in [38] of the Reasons on page 5, and that certain further matters were the case, as set out in the three ensuing sub-bullet points.

(f) On a proper construction of the Reasons, if any one, alternatively if all, of the three purported matters set out in [38] of the Reasons on page 5 was or were itself or themselves unreasonable and/or irrational, it was unreasonable and/or irrational of the Minister to have considered as referred to in sub-paragraph 7(b) above.
(g) As to sub-paragraph (e)(1) above, having regard to the nature and extent of the consultation and submission processes which had taken place prior to the Exemption Decision and the circumstances in which they had occurred, there was no reasonable or rational basis on which, on the material before him (actually or constructively), the Minister could have considered that the views of relevant third parties who might be materially affected by the Amendment were reasonably well known and had been considered during the preparation of the Amendment.
(h) Further or alternatively, as to sub-paragraph (e)(2) above, on the material before the Minister (actually or constructively), and having regard to his knowledge and experience in relation to compliance with the requirements of the Relevant Provisions, including in relation to planning panels, there was no reasonable or rational basis on which the Minister could have considered that further notification and consultation would have been unlikely to result in any substantive changes to the Amendment.
(i) Further or alternatively, as to sub-paragraph (e)(3):
(1) by their nature, the matters set out in the third bullet point in [38] of the Reasons on page 5 gave no reasonable or rational basis for the Minister to have purportedly considered that, in relation to the Amendment, compliance with the requirements of the Relevant Provisions was not warranted;
(2) the first and second of the three ensuing sub-bullet points amounted to reliance on the Minister’s perceived need for urgency, as addressed in sub-paragraphs (a) to (d) of these particulars, and the Plaintiff accordingly refers to and repeats those sub-paragraphs, mutatis mutandis; and
(3) as to the third of those three ensuing sub-bullet points, by the nature of the matters there set out, it was unreasonable and/or irrational for the Minister to purportedly consider as referred to in sub-paragraph 7(b) above on account of those matters at the date of the Exemption Decision.

(j) In the premises, it was unreasonable and/or irrational of the Minister to have considered as referred to in sub-paragraph 7(b) above.

Council’s submissions

The Council’s submission in support of this second ground had two strands. One strand comprised the Council’s arguments that the Minister’s conclusions about perceived urgency were irrational.[49] For the reasons just given, I do not accept those arguments.[50] This ground therefore depends on the other strand of the Council’s submission: that there was no rational basis on which the Minister could consider that the views of affected parties were reasonably well known, and that compliance with the notification requirements was unlikely to result in substantive changes to the Amendment.
[49]Set out at [37]–[40] above.
[50]See [53]–[58] above.

The Council referred me to material in the Decision Brief that detailed the consultation undertaken by Hi-Quality, and by DELWP on behalf of the Minister. In relation to the former, the Council noted that the community and stakeholder consultation undertaken by Hi-Quality occurred over the phone and online in April and May 2020, at a time when stay-at-home restrictions were in place due to the COVID-19 pandemic. As to the latter, an attachment to the Decision Brief contained DELWP’s assessment of the Council’s submission to the Minister, dated 9 September 2020, including how the Council’s comments had or had not been addressed in amendments to the proposed Incorporated Document. The Council noted that DELWP’s assessment did not address the following issues raised in its submission:

(a) the consultation process undertaken by Hi-Quality was not analogous to the usual rigorous process of submissions and public hearing and amounted to ‘mere notice’ of the proposed amendment;

(b) the quality and extent of the consultation and engagement efforts were limited as a result of the COVID-19 lockdown;

(c) the actual engagement by affected parties and stakeholders with Hi-Quality’s consultation program was limited;

(d) the information provided by Hi-Quality to affected parties and stakeholders suggested that the proposal was a preliminary proposal; and

(e) Hi-Quality’s consultation with the Council was limited to a video conference on 27 April 2020, before it made the amendment request.

The Minister’s Reasons stated only that the Minister was ‘informed that Hi-Quality has undertaken community consultation and engagement on an earlier version of the Amendment’[51] and that, in preparation of the Amendment, the Minister ‘considered the comments of [the Council], key stakeholders and members of the community’.[52]

[51]Reasons, [17].

[52]Reasons, [31].

In the Council’s submission, the material before the Minister made clear that limited and constrained consultation had occurred, and provided no rational or logical basis for the Minister’s conclusions that the views of affected third parties were reasonably well known, or that further consultation was unlikely to result in any substantive change to the Amendment. The Council submitted that, on any rational view, further consultation of the kind achieved by the submission and panel review processes under the Planning Act would be ‘virtually certain’ to have led to substantive changes to the Amendment.

Minister’s submissions

The Minister’s starting point was to note that there is no obligation under the Planning Act for the Minister to undertake any consultation before exercising the power in s 20(4). He submitted that the content and nature of any consultation that he might choose to engage in, under s 20(5), is a political issue rather than a legal one.[53]
[53]Referring to Lower Our Tracks, [183]; Tok Holdings, [82]; Moorabool, [92]–[98].

In any event, the Minister submitted, the impugned findings were supported by at least some material before the Minister at the time he made the Exemption Decision. In particular, there was evidence that the Council had been consulted, had been provided with the full suite of documentation relating to the proposed Amendment, and had provided detailed comment in the form of a 54 page submission together with four peer review reports. There was also evidence that the Council’s views had been taken into account in formulating the final Incorporated Document.

Further, the Minister characterised the impugned findings as evaluative in character and directed to future matters. He said that the Reasons did not suggest that he had ascertained, categorically, the views of each relevant third party. Rather, he had found that the views of ‘relevant third parties’ were, in aggregate, ‘reasonably well known’ and that further notification and consultation would be ‘unlikely to result in any substantive changes to the Amendment’. The Minister submitted that these findings appropriately reflected the extent and nature of the consultation undertaken, based on the material in the Decision Brief. He said that there was no evidence to support the Council’s assertion that it was ‘virtually certain’ that further consultation would have resulted in changes to the Amendment.

On that basis, the Minister argued that the impugned findings were neither unreasonable nor irrational.

Consideration

As in Moorabool Shire Council v Minister for Planning,[54] the findings impugned by this second ground of review are evaluative conclusions, each of which is qualified in some way. The Minister considered that the views of relevant third parties who may be materially affected by the Amendment were reasonably well known, a formal exhibition process was unlikely to identify any new issues which had not been considered as part of the consultation, and further notification and consultation would be unlikely to result in any significant changes to the Amendment. It cannot be said that these findings lacked any evident and intelligible justification, on the information available to the Minister when he made the Exemption Decision.
[54][2021] VSC 701, [92].

There was material in the Decision Brief that supported the Minister’s finding that the views of relevant third parties were reasonably well known. The Council had been consulted by DELWP, and had made a detailed written submission in relation to the Amendment.[55] The Decision Brief attached the Council’s submission and DELWP’s assessment of it.[56] It also informed the Minister that Hi-Quality had engaged broadly with the community, including with listed organisations, local property owners and businesses.[57] The key issues identified in Hi-Quality’s engagement and consultation were listed in the Decision Brief.[58]
[55]Decision Brief prepared by officers of the Department of Environment, Land, Water and Planning, and recommended to the Minister on 18 March 2021, [5]–[6].
[56]Decision Brief, Attachments 3 and 4.
[57]Decision Brief, [10].
[58]Decision Brief, [11].

The Decision Brief went on to advise the Minister that members of the community, including residents of Sunbury, property developers, community groups, State Members of Parliament, the Brimbank City Council, and the Melton City Council had written to the Minister opposing the amendment and the proposed use of the power in s 20(4) of the Planning Act.[59] The issues raised in that correspondence were then listed, as follows:[60]
[59]Decision Brief, [12].
[60]Decision Brief, [13].

a.Disposal of spoil that is contaminated by per- and poly fluorinated alkyl substances (PFAS) and other materials;
b.Lack of consultation and inappropriate use of section 20(4) of the Act;
c.Confusion regarding details of the project, given conflicting information they have heard from different sources such as the West Gate Tunnel Project team and Transurban;
d.Potential impact of contaminated spoil on Emu Creek and downstream on Deep Creek and Maribyrnong River;
e.Proximity of new housing estates and proposed community facilities to the site;
f.Operational concerns with the existing landfill operation at the nearby Bulla Tip and Quarry at 500 Sunbury Road, Bulla;
g.Large number of truck movements and pollution from vehicles and potential spills;
h.Impact of truck traffic on the Deep Creek “heritage” bridge in Bulla;
i.No guarantee that contamination will not escape from the site;
j.Potential for ground water contamination;
k.Potential for PFAS to be carcinogenic and impacting on the community;
l.Road and infrastructure damage by the large number of trucks;
m.Noise emissions, dust emissions and light emissions;
n.Technical reports not being available to the community;
o.Traffic conflicts with trucks, pavement damage and added congestion from trucks;
p.Loss of rural character of the area with increasing development.

While there might have been scope for further or more informed consultation, this was a sufficient basis for the Minister to find that the views of relevant third parties were reasonably well known. That is so even if, as the Council submitted, the consultation undertaken in relation to the Amendment was ‘was significantly more limited’ than that undertaken by the Minister in relation to the amendment considered in Moorabool.

Similarly, there was material in the Decision Brief that supported the Minister’s findings that further consultation was unlikely to identify new issues or result in further significant changes to the Amendment. Numerous issues had been identified during the consultation already undertaken, as listed in the Decision Brief. Further, the Minister was advised that the Amendment had been modified to address matters identified in DELWP’s peer review of the technical reports, the Council’s comments, the requirements of VicRoads and the Department of Transport, and the concerns of the community, community bodies, and key stakeholders.[61] The key changes to the proposed Incorporated Document were summarised in the Decision Brief.[62] These matters certainly do not dictate a conclusion that, as the Council submitted, it was ‘virtually certain’ that compliance with the notice provisions would result in further changes of substance to the Amendment. As the planning authority, the Minister would have been obliged by s 27(1) of the Planning Act to consider a panel report, but need not have accepted the panel’s findings or any recommendations it might have made.[63] In those circumstances, it was reasonably open to the Minister to take the view that the formal exhibition process was unlikely to result in any significant changes to the Amendment presented for his decision.
[61]Decision Brief, [30].
[62]Decision Brief, [31].
[63]As the Council accepted at Transcript 24:18–31.

There is another feature of the statutory framework within which the Minister made the Exemption Decision that confirms that the impugned findings were reasonably open. Many of the matters raised during the consultations by Hi-Quality and DELWP were environmental matters that were the province of the Environment Protection Authority (EPA) under the Environment Protection Act 1970 (Vic) (Environment Act)[64] and the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic) (Spoil Management Regulations). As explained in Moorabool, there are two separate legislative schemes in Victoria that regulate land use planning and environmental protection — the Planning Act and the Environment Act respectively.[65] Although the two schemes operate independently, they complement each other to a significant extent and must work in an integrated way. That necessarily requires a planning authority such as the Minister to leave matters of environmental protection to the EPA, in order to avoid duplication and possible conflict between the two schemes.[66]
[64]On 1 July 2021, the Environment Protection Act 1970 (Vic) was repealed and replaced by the Environment Protection Act 2017 (Vic).
[65]Moorabool, [61].
[66]Moorabool, [62].

In this case, the Minister was advised that the EPA had approved an environment management plan under the Spoil Management Regulations, and that the EPA’s approvals granted under the Environment Act and the Spoil Management Regulations addressed ‘the detailed environmental assessment of the spoil processing facility and the spoil disposal proposal to ensure the appropriate treatment and containment of the spoil as required by the [Environment] Act to protect human health and the environment’.[67] According to the Decision Brief, the Incorporated Document had been drafted to reduce the extent of duplication with the environment management plan.[68] The fact that environmental approval was a matter for the EPA, not the Minister, was a further reason why it was open to the Minister to find that the formal notification process under the Planning Act was unlikely to result in further significant changes to the Amendment.
[67]Decision Brief, [27]. See also [48]–[51] and Attachment 10 — Complete EPA Approved EMP.
[68]Decision Brief, [28].

Another similarity between this case and Moorabool was that it appeared to me that the Council’s real complaint was about the quality of the consultation that preceded the Exemption Decision and the adoption and approval of the Amendment. The Council was clearly aggrieved that the proposed Amendment had not been subjected to the rigorous scrutiny of the panel process, in which it could have been an active participant. However, the content and quality of any consultation undertaken on behalf of the Minister under s 20(5) of the Planning Act is ‘not a legal issue, but a political one’.[69]
[69]Lower Our Tracks, [183]. See also Moorabool, [97].

The Council’s second ground of review is not made out. On the material before the Minister, his conclusion that compliance with the requirements of the notice provisions was not warranted was not legally unreasonable.

Did the Minister have regard to an irrelevant consideration?

The Council’s third ground of review was a contention that the Minister relied on an irrelevant consideration in making the Exemption Decision, in that he had regard to the requirement of Transurban and CPB that multiple facilities receive statutory planning approvals as a prerequisite to their inclusion in a competitive tendering process. It said that this consideration was evident from [15] and [28] of the Minister’s Reasons.

Council’s submissions

The Council submitted that, while s 20(4) of the Planning Act permits consideration of a wide range of factors that may be conceived to be relevant to the ‘public interest’, the discretion is not unfettered.[70] It argued that, in exercising the discretion, the Minister was precluded from having regard to a matter that is ‘extraneous to any objects the legislature could have had in view’.[71]
[70]Referring to East Melbourne Group, [186], [352]–[353] (Ashley and Redlich JJA).
[71]Referring to East Melbourne Group, [352] (Ashley and Redlich JJA); O’Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).

According to the Council, the tendering arrangements of Transurban and CPB could not legitimately be taken into account under s 20(4). It said that the private requirement of Transurban and CPB for commercial certainty with respect to planning approvals, as part of a competitive tendering process, was inconsistent with the notion of the ‘interests of Victoria’ in s 20(4), which was associated with the public interest. The Council submitted that it was also extraneous to the objectives of the Victorian planning framework set out in s 4(2) of the Planning Act, and the common themes of fairness, transparency, and efficiency in the implementation of that framework. The irrelevance of the tendering arrangements to the power of exemption was underscored, the Council said, by the fact that the planning approval would have no utility if Hi-Quality was not the successful tenderer.

Minister’s submissions

The Minister accepted that he had taken into account the preference of Transurban and CPB for planning approvals to be in place before awarding the tender. However, he argued that this was not a consideration that was forbidden by the subject matter, scope, and purpose of the Planning Act.[72] The Minister pointed out that s 20(4) does not specify any particular matters that can or cannot be taken into account in considering whether compliance with the notice provisions is warranted, or whether the interests of Victoria make an exemption appropriate. He referred to several passages of the judgment in East Melbourne Group in which the Court of Appeal held that the discretionary value judgment under s 20(4) may be made by reference to undefined factual matters,[73] including in some cases ‘a benefit accruing in the interests of Victoria — not being a benefit which will accrue from the subject land itself’.[74]
[72]Referring to Peko-Wallsend, 39–40 (Mason J); Sinclair v Tripodis Constructions Pty Ltd (2013) 207 LGERA 1, [21]; Clark-Ugle v Clark [2016] VSCA 44, [138] (Tate JA, Ferguson and McLeish JJA agreeing).
[73]East Melbourne Group, [147] (Warren CJ), [192], [352]–[353], [357] (Ashley and Redlich JJA). See also W Everton Park, [58].
[74]East Melbourne Group, [357] (Ashley and Redlich JJA).

In the Minister’s submission, the main flaw in the Council’s argument in relation to this ground was the assumption that anything of benefit to Transurban and CPB served only their private interests and could not also benefit the interests of Victoria. The Minister argued that the desire to enable a prompt decision on the tender was in order to address the risk of further delay to the West Gate Tunnel project. He said further that the need for a prompt decision was tied to the perceived urgency of commencing tunnelling work, and realising the benefits that were expected to accrue from the completion of the project in the interests of Victoria.

Consideration

There was no dispute that the Minister had regard to the preferred tendering arrangements of Transurban and CPB. This is most apparent from [28] of the Reasons, in which the Minister said:

It is necessary to secure the necessary approvals for the sites being considered before the tender for the disposal of the WGT spoil is awarded. It is important to ensure that a number of sites are included in the tender process to ensure that tenders are competitive. It is important that a decision on the tender for the disposal of the WGT spoil can be made by taking into account whether or not any tenderer has obtained the necessary approvals, so that the probability of the project being further delayed by reason of the failure to obtain any approval can be assessed. The delay associated with complying with the requirements of sections 17, 18 and 19 of the Act and the regulations in relation to the Amendment will, if the facility secures a contract to receive WGT project spoil without compliance with those requirements being exempted, delay the construction of the facility and its ability to receive WGT project spoil, compounding the delay to the commencement of tunnelling on the WGT project.

This was one of the considerations that informed the Minister’s conclusion that an exemption from the notice provisions would ‘support the timely delivery of the facility’, which would ‘subject to contractual arrangements, reduce the ongoing delay to the delivery of the WGT project’. That conclusion in turn informed the Minister’s satisfaction that compliance with the notice requirements was not warranted and that the interests of Victoria made the exemption appropriate.

However, I am not persuaded that the consideration was extraneous to the subject matter, scope, or purpose of the power in s 20(4), or the Planning Act more generally. Section 20(4) enables the Minister to exempt himself or herself from compliance with the notice provisions if the Minister considers it appropriate to do so in the interests of Victoria or any part of it. As mentioned, the provision does not constrain the Minister in identifying the matters that bear on the assessment of Victoria’s interests in a given case.[75] The objectives of planning in Victoria, as set out in s 4(1) of the Planning Act, confirm the breadth of the matters that might be relevant to assessing the interests of Victoria. These objectives include, relevantly here, enabling the orderly provision of public utilities and other facilities for the benefit of the community, and facilitating development in accordance with that objective.[76]
[75]See [32] above and East Melbourne Group, [112], [126], [144]–[150] (Warren CJ), [341], [352]–[353] (Ashley and Redlich JJA).
[76]Planning Act, ss 4(1)(e)–(f).

It is the case that the Planning Act attaches importance to public scrutiny of a proposed planning scheme amendment through compliance with the notice provisions and the panel process.[77] It is also the case that s 20(4) gives the Minister power to dispense with compliance with the notice provisions, where the Minister considers that one of the two threshold criteria is present. One objective of the planning framework provided in the Planning Act is to establish a clear procedure for amending planning schemes, with ‘appropriate public participation in decision making’.[78] However, this objective is no more or less significant than any of the other objectives of the Planning Act and the planning framework it provides. Section 20(4) enables the Minister to balance public participation in decision-making in accordance with the notice provisions against other competing objectives, and the interests of Victoria, and to reach a view about whether compliance with the notice provisions is warranted. In a case where the Minister determines that either or both of those matters make an exemption appropriate, this necessarily involves a judgment that compliance with the notice provisions is not, in that case, ‘appropriate public participation in decision making’.
[77]East Melbourne Group, [356], [366] (Ashley and Redlich JJA).
[78]Planning Act, s 4(2)(h).

Here, the Minister’s view was that the West Gate Tunnel project is a ‘state-shaping infrastructure project that will have positive and long-term benefits for all Victorians’.[79] This view was not contested by the Council. The Minister considered that delivery of the project was in the interests of Victoria, and hence that it was also in the interests of Victoria to reduce the ongoing delay to the delivery of the project. As I have found, it was rational for the Minister to proceed on the basis that necessary approvals should be secured for all of the sites in contention before the tender was awarded.[80] That being so, it was open to the Minister to take that matter into account in determining whether an exemption would be appropriate in the interests of Victoria.
[79]Reasons, [11]. See also [27], [38].
[80]See [60]–[61] above.

The Council’s third ground is not made out.

Did the Minister fail to consider critically relevant material?

Fourth and finally, the Council contended that the Minister failed to take into account critically relevant material, namely the planning approvals that had already been given for two other sites, in making the Exemption Decision.

Council’s submissions

The Council relied on the fact that, in November 2020, the Minister had approved the use and development of the Maddingley Spoil Processing Facility in Moorabool and the Ravenhall Spoil Processing Facility in Melton. It said that, although the Minister was clearly aware of these approvals, he did not refer to them at all in his Reasons, indicating that he failed to have any regard to them in making the Exemption Decision.

The prior approvals of two other sites were, according to the Council, matters that were critical to the exercise of the Minister’s statutory task under s 20(4) of the Planning Act.[81] It argued that the fact that two other sites had already been approved for development was a critical matter for the Minister, because the ‘key dispositive factor’ informing the Exemption Decision was the Minister’s concern to address the perceived urgent need for one or more spoil processing facilities. The Council submitted that the Minister’s failure to have regard to the prior approvals rendered him unable to accurately evaluate the urgency of the proposed Amendment, and to balance it against the impact on third parties of not complying with the notice provisions. It said that this balancing exercise lay at the heart of the discretion in s 20(4).[82]
[81]In the sense explained in Chang v Neill (2019) 62 VR 174, [92] and Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [111]–[112], as distinct from a consideration that the decision-maker is bound by the statute to consider, as explained by Mason J in Peko-Wallsend, 39–40.
[82]Referring to W Everton Park, [62].

Minister’s submissions

The Minister disputed that prior statutory approval of other sites was an essential feature of the exercise of his discretion under s 20(4), having regard to the breadth of the matters that might bear on its exercise. He also disputed that he had disregarded the prior approvals. He argued that, since the Council explicitly stated that the Minister was aware of the prior approvals, it could not be inferred that he had ignored them — particularly when they were referred to in the Decision Brief.

The Minister further submitted that this ground of review was based on the misconception that the planning approval given by the Minister for the other two potential facilities had of itself addressed the urgency associated with the Amendment. This was a misconception, the Minister argued, because the references in the Reasons to an urgent need for one or more spoil processing facilities could only be understood to refer to a pressing need for operational spoil processing facilities to receive and process spoil generated by the West Gate Tunnel project. For that reason, the prior planning approvals of two other sites was not critical to the Minister’s decision, and did not need to be separately addressed in the Reasons.

Consideration

The Council’s argument in relation to this ground carefully distinguished a failure to have regard to critically relevant material, in the sense discussed by the Court of Appeal in Chang v Neill,[83] from a failure to consider a matter that the decision-maker is bound by the statute to take into account. Whether such a failure amounts to jurisdictional error depends on the importance of the material to the exercise of the discretion, on the seriousness of the error, and also on the subject matter, scope and purpose of the provision, properly construed. As discussed, the discretion in s 20(4) is broad and unconfined, and the provision does not direct or confine the matters that the Minister may take into account in reaching a decision. I will assume, without deciding, that there may be cases in which there is some information that is so essential to the Minister’s consideration of the threshold criteria in s 20(4), or to the exercise of his or her residual discretion, that it would constitute a jurisdictional error for the Minister to overlook or ignore that information. This is not such a case.
[83](2019) 62 VR 174, [92].

The Council’s argument was based on the same narrow reading of the Reasons that underpinned the Council’s earlier contention that the Minister’s finding of urgency was irrational — that is, that it should be understood to refer to an urgent need for planning approval for at least one spoil processing facility.

For the reasons given earlier in this judgment,[84] I do not accept that the Reasons can be read in that way. The Minister’s statement that ‘there is an urgent need for one or more spoil processing and disposal facilities to receive spoil from the WGT project’[85] was directed to a need for one or more operational spoil processing facilities, which had both planning and environmental approvals, and for which contracts had been concluded. It was not directed only to the need for planning approval for at least one facility. I have also found that it was rational for the Minister to approach the Exemption Decision on the basis that the tender would not be awarded until all sites in contention had secured the necessary planning and environmental approvals, and that this was not an irrelevant consideration.[86]
[84] See [54] above.
[85]Reasons, [34].
[86]See [59]–[60], [85]–[89] above.

It follows that the fact that the Moorabool and Melton sites already had planning approval was not critical to the Minister’s finding of urgency, or to his balancing of that urgency against the effect on third parties of not complying with the notice provisions. There was therefore no need for the Minister to refer to the prior approvals in his Reasons, although — as the Council accepted — he was certainly aware that they had been granted.

The Council has not established its fourth ground of review.

Disposition

None of the grounds of review has been made out, and so the proceeding must be dismissed. I will hear the parties on the question of the costs of the proceeding.

[2022] VSC 187

14 April 2022