Lantrak Developments Pty Ltd v Kingston City Council - [2021] VSC 708

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03040

LANTRAK DEVELOPMENTS PTY LTD (ACN 070 998 908)	Applicant
v
KINGSTON CITY COUNCIL	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2021
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	Lantrak Developments Pty Ltd v Kingston City Council
MEDIUM NEUTRAL CITATION:	[2021] VSC 708

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APPEAL — Application for leave to appeal from decision and orders of Victorian Civil and Administrative Tribunal (‘Tribunal’) — Tribunal granted enforcement orders under s 114 of Planning and Environment Act 1987 — Whether a permit regulating sand excavation requiring compliance with an approved working plan attached to a licence issued under the Extractive Industries Act 1966 should be construed as requiring compliance with a rehabilitation plan forming part of an approved work plan for a work authority issued under the Mineral Resources (Sustainable Development) Act 1990 — Condition of permit did not require compliance with rehabilitation plan — Tribunal erred in making orders requiring compliance with rehabilitation plan — Victorian Civil and Administrative Tribunal Act 1998 s 148 — Planning and Environment Act 1987 s 114 — Extractive Industries Act 1966 ss 4(1), 17 — Extractive Industries Development Act 1995 ss 17, 19(1) — Mineral Resources (Sustainable Development) Act 1990 ss 77G, 77HB, sch 7 cl 2, pt 12 div 4, pt 6 div 2.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Morris QC with Mr P Chiappi	HWL Ebsworth Lawyers
For the Respondent	Mr I Munt	Russell Kennedy

HIS HONOUR:

Introduction

On 26 March 1976 the Melbourne and Metropolitan Board of Works (‘MMBW’) granted an amended permit (‘permit’) to L Grollo Sales Pty Ltd to excavate sand from a 34 hectare site in Heatherton (Victoria). The permit was subject to a condition that the excavation be conducted in accordance with the approved working plan attached to Extractive Industry Licence 716 (‘licence 716’) issued under the Extractive Industries Act 1966 (condition 1). More than 30 years later, in 2007, Lantrak Developments Pty Ltd (‘Lantrak’) acquired the 34 hectare site, subject to the same conditions prescribed in the original permit. By 2007 commercial sand mining activities had resulted in the creation of four large pits. Since 2007 Lantrak has progressively filled these pits with landfill from construction projects in and around Melbourne.

By 2007 the Extractive Industries Act 1966 (‘the 1966 Act’) had been repealed by the Extractive Industries Development Act 1995 (‘the 1995 Act’). Under the 1995 Act parties proposing to carry out an extractive industry were required to lodge a work plan in support of an application for a work authority. A work plan was required to include a rehabilitation plan. On 18 December 1999 Work Authority 383 (‘WA 383’) was issued in respect of a parcel of land which included the 34 hectare site the subject of the permit. In January 2012 the work plan in respect of Work Authority…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 708
Decision Date: 29 October 2021

CaseChat Overview and Summary

Lantrak Developments Pty Ltd appealed against the decision and orders of the Victorian Civil and Administrative Tribunal (Tribunal) which had granted enforcement orders under section 114 of the Planning and Environment Act 1987. The dispute centred on whether a permit regulating sand excavation, requiring compliance with an approved working plan attached to a licence issued under the Extractive Industries Act 1966, should also require compliance with a rehabilitation plan that formed part of an approved work plan for a work authority issued under the Mineral Resources (Sustainable Development) Act 1990. The permit in question explicitly stated that compliance with the approved working plan was necessary but did not require compliance with a rehabilitation plan.

The primary legal issue before the court was whether the Tribunal erred in making orders that required compliance with the rehabilitation plan, despite the permit not mandating it. The court needed to determine whether the Tribunal had jurisdiction to impose such conditions and whether its interpretation of the statutory provisions was correct. The appellant argued that the Tribunal had exceeded its jurisdiction by imposing conditions not required by the permit and misinterpreting the relevant legislative framework.

In its reasoning, the court found that the Tribunal had indeed erred in making the orders requiring compliance with the rehabilitation plan. The court noted that the permit did not impose such a requirement, and the Tribunal had no jurisdiction to impose additional conditions not specified in the permit. The court held that the Tribunal’s interpretation of the statutory provisions was incorrect, as the permit’s terms did not encompass compliance with the rehabilitation plan. Consequently, the enforcement orders made by the Tribunal were quashed, and the appeal was allowed.

The court's final order was that the decision and orders of the Tribunal were set aside, and the matter was remitted back to the Tribunal for reconsideration in light of the court's findings.

Orders