Mackenzie v Head, Transport for Victoria
[2021] VSCA 100
•21 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0073
| MAIRIANNE MACKENZIE & ORS (according to the attached schedule) | Applicants |
| v | |
| HEAD, TRANSPORT FOR VICTORIA | First respondent |
| and | |
| MINISTER FOR PLANNING | Second respondent |
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| JUDGES: | TATE, KYROU and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 March 2021 |
| DATE OF JUDGMENT: | 21 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 100 |
| JUDGMENT APPEALED FROM: | [2020] VSC 328 (Richards J) |
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PLANNING AND ENVIRONMENT – Judicial review – Review of decisions by Minister in respect of Stage 2 of Western Highway duplication project – Whether works could not lawfully proceed until Minister’s assessment of the environmental effects considered by councils – No planning permit required – Exemptions from notice – No reliance on earlier Ministerial assessment – Precautionary principle – Environment Effects Act 1978 ss 8, 8B, 8C, 8F; Planning and Environment Act 1987 ss 12(2)(b), 29, 35; Transport Integration Act 2010 s 19 – Leave to appeal refused.
EVIDENCE – Admissibility of reports not before Minister when making decision – Whether reports contained admissions against interest – Whether reports demonstrate failure to exercise jurisdiction – Whether reports demonstrate absence of intelligibility – Whether contents admissible under Prasad principle – Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr DRJ O’Brien | Michael I Kennedy & Associates |
For the First Respondent | Mr CM Caleo QC with Mr T Barry | Minter Ellison |
| For the Second Respondent | Mr DJ Batt QC with Ms ECV Porter | Victorian Government Solicitor |
TATE JA
KYROU JA
KENNEDY JA:
TABLE OF CONTENTS
Introduction and summary................................................................................
2
The legislation......................................................................................................
5
(1) The EE Act.................................................................................................
5
(2) The Planning Act.......................................................................................
10
The EES process for the Stage 2 works ............................................................
15
(1) Request for advice whether EES is needed.................................................
15
(2) Preparation of an EES —the Scoping Requirements and the Ministerial Guidelines...................................................................................................
16
(3) VicRoads EES — September, 2012............................................................
25
(4) The Panel....................................................................................................
28
(5) The 2013 Ministerial assessment................................................................
30
(6) The LOT error — Media release 2015.......................................................
34
(7) Expiry of Amendment C27 — February 2017...........................................
35
(8) The Exemption and the Approval and Adoption decisions — December 2017...........................................................................................
35
Grounds 1 and 2 —Section 8C of the EE Act...................................................
38
Grounds 3 and 4(a) and (b) — Exclusion of evidence ...................................
51
Summary of pleadings relevant to grounds 3 and 4(a) and (b).............................
53
Judge’s decision on respondents’ objections to admissibility of excluded reports..
60
Parties’ submissions on grounds 3 and 4(a) and (b)..............................................
63
Decision on grounds 3 and 4(a) and (b).................................................................
65
(1) Did excluded reports contain admissions by respondents?..................
66
(2) Did excluded reports fall within the Prasad principle?........................
68
(3) Did contents of excluded reports constitute jurisdictional facts?........
69
(4) Can excluded reports demonstrate constructive failure to exercise jurisdiction?..........................................................................................
70
(5) Can excluded reports demonstrate absence of intelligible foundation for decisions?..............................................................................................
71
Ground 6 — the Scoping Requirements...........................................................
73
Ground 4(c) — Reliance......................................................................................
75
Grounds 7 and 8 — Planning Act s 12(2)(b)....................................................
79
Grounds 9 and 10 — the precautionary principle and the 2013 Ministerial assessment
84
Conclusion on the application for leave to appeal........................................
90
Notice of Contention — Should relief be refused in any event?...................
91
Conclusion
95
Introduction and summary
MairiAnne Mackenzie, Iona Mackenzie (‘the Mackenzies’) and Keep The Original Route Supporters Inc (collectively ‘the applicants’) apply for leave to appeal from orders made dismissing a proceeding for judicial review[1] they brought in the Trial Division against the first respondent, Head, Transport for Victoria (‘VicRoads’),[2] and the second respondent, the Minister for Planning (‘the Minister’).[3] In the judicial review proceeding, the applicants sought declarations of invalidity in respect of certain decisions made by the Minister in relation to Stage 2 of the duplication of the Western Highway between Beaufort and Ararat. Stage 2 is part of a larger project to duplicate the Western Highway (‘the project’), the principal road linking Melbourne and Adelaide, between Ballarat and Stawell. This involved an upgrade of the highway to a four-lane divided road. The area affected by the relevant decisions relates to Section 2B of the Stage 2 works between Buangor and Ararat (‘the Section 2B works’), an area about 12.5 km in length. Before the primary judge the applicants also unsuccessfully sought a declaration that it is unlawful for VicRoads to proceed with the Section 2B works.[4]
[1]Mackenzie v Head, Transport for Victoria [2020] VSC 328 (‘Reasons’).
[2]The parties and the judge referred to the first respondent as ‘VicRoads’ and we will use the same terminology. The judge noted that although on 1 January 2020 the Roads Corporation was abolished and its functions transferred to a corporation sole titled ‘Head, Transport for Victoria’, the proceeding concerned matters that occurred before that date: Reasons [1] n 1. We refer to both VicRoads and the Minister collectively as ‘the respondents’. The applicants were the plaintiffs below, VicRoads was the first defendant and the Minister was the second defendant.
[3]In this judgment we largely adopt the defined terms used by the judge in the Reasons.
[4]Reasons [16]–[17].
The decisions impugned by the applicants are threefold:
(1) the Minister’s Assessment under the Environment Effects Act 1978 (‘the EE Act’) of Stage 2 of the project, published in May 2013 (‘the 2013 Ministerial assessment’ or ‘Minister’s assessment’);[5]
(2) the Minister’s decision made on 17 December 2017 to exempt himself under s 20(4) of the Planning and Environment Act 1987 (‘the Planning Act’) from all the requirements under ss 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepared (’the Exemption decision’); and
(3) the Minister’s Adoption and Approval of Amendment C37 to the Ararat Planning Scheme on 17 December 2017 (‘the Adoption and Approval decision’).
[5]Minister for Planning, Western Highway Project Section 2 Beaufort to Ararat: Assessment under Environment Effects Act 1978 (May 2013).
In summary, the judge found that an admitted error by VicRoads in 2012 in estimating the number of large old trees (‘LOTs’) that would be affected by Stage 2 of the project (‘the LOT error’) when it prepared an Environment Effects Statement (‘EES’) under the EE Act did not render invalid either that EES or the 2013 Ministerial assessment.[6] Furthermore, she found that the Minister did not rely on the 2013 Ministerial assessment when he made the Exemption decision and the Adoption and Approval decision in 2017.[7] Nor was he required under the Planning Act to take into account again significant environmental effects when he made the Adoption and Approval decision after having already done so at the preparation stage for that amendment.[8] The judge refused to admit various post-2015 reports relied upon by the applicants to demonstrate that the 2013 Ministerial assessment was flawed.[9] In any event, she found that the 2013 Ministerial assessment was valid.[10] Given that none of the grounds raised by the applicants had been made out, the judge refused to grant any declaratory relief.
[6]Reasons [105]–[111].
[7]Reasons [152].
[8]Reasons [191], [193].
[9]Reasons [68].
[10]Reasons [56], [73]–[106].
The applicants submit that the judge erred in the construction of various sections of the EE Act and wrongly excluded evidence. They maintain that in 2017 the Minister was required to rely upon, and did rely upon, the allegedly flawed 2013 Ministerial assessment. They submit that the judge erred in holding that the Planning Act did not require the Minister, in making the Adoption and Approval decision in 2017, to take into account significant environmental effects of Amendment C37 to the Ararat Planning Scheme. They also submit that the judge erred in determining that the Minister was not bound to have regard to the precautionary principle[11] in making the Adoption and Approval decision.
[11]See [35] and [207] below.
VicRoads has filed a Notice of Contention claiming that, in any event, declaratory relief is not available or should be refused on discretionary grounds, especially in circumstances where the Section 2B works have been substantially performed.
In our view, for the reasons set out below, leave to appeal should be refused.[12]
[12]For convenience, in what follows we simply refer to ‘the appeal’, ‘grounds of appeal’, etc, unless the context indicates otherwise.
It is useful to consider first the relevant legislation and then the details of the process by which VicRoads prepared an EES for the project and the Minister assessed the EES. It is convenient to identify aspects of the judge’s reasoning to those issues, where relevant, throughout that discussion. We examine the judge’s reasoning more closely when we deal with each of the grounds of appeal.
The legislation
(1) The EE Act
The EE Act is expressed to be an Act ‘to require the Environmental Effects of certain Works to be assessed’. Pursuant to s 3(1) of the EE Act, the Act applies to works that are declared to be ‘public works’ for the purposes of the EE Act by Order of the Minister published in the Government Gazette. Under s 3(2), the Minister must not make such an Order unless he or she ‘is satisfied that the works could reasonably be considered to have or to be capable of having a significant effect on the environment’.
Section 4(1) provides that before commencing any public works, the proponent, being the person or body who is carrying out or proposing to carry out any works,[13] must ‘cause an [EES] to be prepared and submit it to the Minister for the Minister’s assessment of the environmental effects of the works’. Section 4(3) provides that a ‘statement under this Act shall be prepared and submitted at the expense of the proponent of the works’. Section 5 empowers the Minister to call for a supplementary statement at any time.
[13]EE Act s 2(1) (definition of ‘proponent’).
Section 6(1) provides that in ‘any case where a statement has not been submitted to the Minister, the Minister may call for the statement’. Section 6(2) provides as follows:
In any case where a statement has been submitted to the Minister no works referred to therein shall be commenced or proceeded with until the assessment of the Minister with regard to the environmental effects has been considered by the relevant Minister.
Section 6(3) requires the Minister to ‘provide the assessment as soon as reasonably practicable in the circumstances of the case’.
No declaration was made by the Minister that the Stage 2 works were ‘public works’. Rather, the alternative means by which the EE Act can apply to works, through the mechanism of s 8, was employed here. As described below, this involves a process that arises when advice is sought from the Minister as to whether an EES should be prepared. Importantly, s 8C(2) provides that ‘[s]ections 4(3), 5, 6(1) and 6(3) apply to the preparation of a statement referred to in subsection (1)’. Most notably, s 6(2) is omitted. The judge concluded that the identification under s 8C(2) of the limited applicability of ss 4–6 to the preparation of an EES, referred to under s 8C(1), meant that s 6(2) did not apply to the Stage 2 works.[14] This is a significant conclusion not under challenge in this Court. However, to foreshadow their argument, the applicants submit that the Minister, in making the Adoption and Approval decision in 2017, was obliged to rely upon, and did rely upon, the 2013 Ministerial assessment with regard to the environmental effects of the Stage 2 works. In effect, the applicants, not being able to rely upon s 6(2), seek to generate an equivalent obligation from various sub-sections of s 8.[15]
[14]Reasons [22].
[15]See ground 4(c), discussed at [185]–[194] below.
The mechanism that applied in this case for the preparation of an EES fell under s 8. Pursuant to s 8(1), it is open for a person or body required by any Act or law to make a decision in respect of works that could have a significant effect on the environment, to seek the advice of the Minister as to whether an EES should be prepared. The proponent can also seek that advice, pursuant to s 8(3), as occurred here, VicRoads being the proponent. Section 8 provides:
8 Advice of Minister as to whether statement required
(1) If a person or body (the relevant decision-maker) is required by any Act or law to make a decision in respect of works that could have a significant effect on the environment, the relevant decision-maker may seek the advice of the Minister as to whether a statement should be prepared for the works.
(2) The relevant decision-maker must seek the advice of the Minister under subsection (1) if requested to do so by the Minister responsible for the administration of the Act or law under which the decision is made.
(3) A proponent of works that could have a significant effect on the environment may seek the advice of the Minister as to whether a statement should be prepared for the works.
(4) If the Minister considers that a decision is required by an Act or law in respect of works that could have a significant effect on the environment, the Minister may by notice in writing, require the person or body required to make that decision (the relevant decision-maker) to refer the matter to the Minister for advice as to whether a statement should be prepared for the works.
Section 8A provides that no decision is to be made by ‘the relevant decision-maker and any other person or body authorised under an Act or law to make a decision with respect to the works’ where the Minister’s advice has been sought and the Minister gives notice, until that advice has been given:
8A No decision to be made on works until advice given
If a matter comes to the Minister for advice under section 8, the Minister may, by notice in writing to the relevant decision-maker and any other person or body authorised under an Act or law to make a decision with respect to the works, direct the relevant decision-maker or the person or body not to make that decision until the Minister has given advice in respect of the works under section 8B.[16]
[16]Emphasis added.
Section 8B sets out the process for the Minister to give advice as to whether an EES should be prepared, who should be told and what procedures and requirements apply:
8B Advice of Minister
(1) This section applies if a matter comes to the Minister for advice under section 8.
(2) The Minister may by notice in writing require any relevant decision-maker or proponent of the works to provide the Minister with any information that the Minister reasonably requires to decide whether a statement should be prepared for the works.
(3) The Minister must decide whether—
(a) a statement should be prepared for the works; or
(b) a statement is not required for the works if conditions specified by the Minister are met; or
(c) a statement is not required for the works.
(4) On making a decision under subsection (3), the Minister must—
(a) by notice in writing advise the proponent of the works, and any relevant decision-maker from whom the matter has come to the Minister for advice under section 8—
(i) that a statement should be prepared for the works; or
(ii) that a statement is not required for the works if conditions specified by the Minister are met; or
(iii) that a statement is not required for the works; and
(b) give to that relevant decision-maker any other advice or assistance the Minister thinks fit to enable a decision to be made.
(5) A notice under subsection (4)(a)(i) must specify the procedures and requirements under the guidelines that are to apply to the statement.
(6) The Minister must also give the notice under subsection (4)(a) to each person or body to whom a direction is given under section 8A in respect of the works.
(7) If the Minister gives a notice under subsection (4)(a)(i) in relation to works, the works are deemed to be works to which this Act applies.
Section 8C delays any decision being made by a person to whom the Minister has given notice that an EES should be prepared until that decision-maker has considered the assessment made by the Minister of the EES:
8C Decisions not to be made and works not to proceed until assessment considered
(1) If the Minister gives a notice under section 8B to a person or body (other than the proponent) advising that a statement should be prepared for works—
(a) the works must not proceed; and
(b) no decision can be made under an Act or law by that person or body in relation to the works until—
(i) the proponent has caused the statement to be prepared and submitted to the Minister for the Minister’s assessment of the environmental effects of the works; and
(ii) the assessment has been considered by that person or body.
(2) Sections 4(3), 5, 6(1) and 6(3) apply to the preparation of a statement referred to in subsection (1).[17]
[17]Emphasis added.
Relevantly, the judge found that s 8C(1)(b)(ii) did not apply here because the bodies to whom the Minister relevantly gave notice, namely, the Ararat Rural City Council and the Pyrenees Shire Council (‘the Councils’), had no decision to make in relation to the works.[18] This conclusion is challenged by grounds 1 and 2 of the grounds of appeal.[19]
[18]Reasons [48].
[19]See [80]–[113] below.
Section 8F provides that the notice provisions in ss 8 to 8E do not apply to decisions under the Planning Act, with certain exceptions. The exceptions mean that the notice provisions do apply relevantly to decisions to adopt an amendment to a planning scheme and to approve such an amendment:
8F Only certain planning decisions affected
Sections 8 to 8E do not apply to decisions under the Planning and Environment Act 1987 except the following decisions—
(a) a decision to adopt a planning scheme or an amendment to a planning scheme;
(b) a decision to approve a planning scheme or an amendment to a planning scheme;
(c) a decision to amend or to refuse to amend an application for a permit;
(d) a decision to grant or to refuse to grant a permit or an amendment to a permit.
Section 10 deals with guidelines that the Minister may lay down in relation to the preparation of an EES, the procedures to be followed by proponents, including giving public notice of the EES and undertaking public consultation, and the content of an EES:
10 Guidelines
(1) The Minister may from time to time lay down guidelines for or with respect to any matters he considers expedient to enable the carrying out of this Act, and without in any way affecting the generality of the foregoing, for or with respect to—
(a) the main types of works or proposed works which could require the preparation of a statement or a supplementary statement;
(b) procedures to be followed by proponents;
(ba) the procedures and requirements for—
(i) advertising or exhibiting (or both) statements, supplementary statements and information relating to procedures and requirements for the preparation of statements and supplementary statements;
(ii) public consultation to be undertaken in relation to works to which this Act applies, including consultation in relation to the requirements for the scope and preparation of statements and supplementary statements;
(c) matters which should be contained in a statement or a supplementary statement;
(d) any information or other matter he considers could be of assistance.
(2) Without limiting subsection (1), the guidelines may—
(a) set out different procedures and requirements for different works or different kinds of works;
(b) apply, adopt or incorporate, with or without amendments, any matter contained in any document or standard published by any authority or body as published from time to time or at the time the guidelines are made or at any time before then.
(2) The 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’.[20]
[20]Planning Act s 1.
The objectives of planning are identified in s 4, covering a wide range of interests. Relevantly, those objectives include in sub-s (1)(b) providing for the maintenance of ecological processes and genetic diversity and in sub-s (2)(d) to ensure the consideration of the effects on the environment when decisions are made about the use and development of land. Section 4 provides:
4 Objectives
(1) The objectives of planning in Victoria are—
(a) to provide for the fair, orderly, economic and sustainable use, and development of land;
(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;
(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(fa) to facilitate the provision of affordable housing in Victoria;
(g) to balance the present and future interests of all Victorians.
(2) The objectives of the planning framework established by this Act are—
(a) to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;
(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;
(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;
(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;
(l) to provide for compensation when land is set aside for public purposes and in other circumstances.
Under s 8(1)(b), the Minister may prepare amendments to any provision of a planning scheme. Under s 8(2), the Minister is a ‘planning authority’ under the Planning Act. Relevantly, the Minister was the planning authority in relation to the Stage 2 works.
The duties and powers of planning authorities are set out in s 12. Under s 12(2)(b), a planning authority, when preparing an amendment to a planning scheme, must take into account any significant effects which it considers the amendment might have on the environment. Section 12 relevantly provided:
12 What are the duties and powers of planning authorities?
(1) A planning authority must—
(a) implement the objectives of planning in Victoria;
(b) provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c) review regularly the provisions of the planning scheme for which it is a planning authority;
(d) prepare amendments to a planning scheme for which it is a planning authority;
(e) prepare an explanatory report in respect of any proposed amendment to a planning scheme;
(f) provide information and reports as required by the Minister.
(2) In preparing a planning scheme or amendment, a planning authority—
(a) must have regard to the Minister’s directions; and
(aa) must have regard to the Victoria Planning Provisions; and
(ab) in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and
(b) must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and
(c) must take into account its social effects and economic effects.[21]
[21]Emphasis added. Footnotes omitted.
Part 3 of the Planning Act provides for the process of making amendments to planning schemes. Division 1 is concerned with the exhibition and notice of an amendment and the obligations placed upon a planning authority, including s 17 (providing copies of any amendment prepared and relevant materials to certain persons, including a municipal council where relevant), s 18 (making available any amendment and relevant material for inspection until the amendment is approved or lapses) and s 19 (giving notice of the preparation of an amendment to certain persons materially affected by the amendment, to be published in the Government Gazette, and setting a date for submissions).
Section 20 confers a power on the Minister to be exempt from giving notice, including, under sub-s (4), exempt from any of the requirements under ss 17 to 19 if the Minister considers that compliance is not warranted or that the exemption is in the interests of Victoria or any part of Victoria:
(4) 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.
Section 20(4) is the section under which the Minister made the Exemption decision.
Division 2 of pt 3 provides for a process of receiving and considering public submissions about an amendment from persons who have been given notice, including by means of a hearing and reporting by a panel that conducts a public inquiry.
Division 3 of pt 3 is concerned with the adoption and approval of an amendment. Pursuant to s 29(1), the planning authority may only adopt an amendment in whole or in part, with or without changes, if it has complied with divs 1 and 2 of pt 3:
29 Adoption of amendment
(1) After complying with Divisions 1 and 2 in respect of an amendment or any part of it, the planning authority may adopt the amendment or that part with or without changes.
Pursuant to s 35, the Minister may approve an amendment in whole or in part, with or without changes, and subject to any conditions the Minister wishes to impose, or the Minister may refuse to approve an amendment:
35 Approval of amendment by Minister
(1) 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.
(2) If the Minister approves only a part of an amendment that part becomes a separate amendment.
(3) The Minister may approve further parts of an amendment at any time.
The EES process for the Stage 2 works
(4) Request for advice whether EES is needed
In July 2010, pursuant to s 8(3) of the EE Act, VicRoads, as the proponent, sought the Minister’s advice about whether an EES under the EE Act should be prepared for Stage 2 of the duplication of the Western Highway between Beaufort and Ararat (‘the VicRoads referral’). The VicRoads referral noted that the ‘study corridor between Beaufort and Ararat contains a number of environmentally sensitive assets, most predominantly the Langi-Ghiran State Park midway along the corridor’. VicRoads included in the list of potentially significant environmental effects that might occur during the construction and operation of Stage 2, damage to flora and fauna by fragmentation of habitat:
Damage to flora and fauna by fragmentation of habitat. This is especially relevant for road- and creek-side vegetation and the forested property contiguous with Langi-Ghiran State Park. Alternatives such as the re-alignment of the road and design features to provide fauna linkages will be considered in this area. The design of the project will aim to avoid and minimise potential impacts.
The VicRoads referral described the main components of the project and mentioned that there were likely to be several alternative alignment options available for Stage 2 of the project. These included adding a second carriageway adjacent to the existing highway and the construction of a dual carriageway on a new alignment while retaining the existing highway as a service road:
The corridor is considered in four zones for planning and design development purposes …
The project is likely to comprise of a combination of the following, the extent of which will be determined by the options selected through further ongoing assessment:
·Duplication - adding a second carriageway adjacent to the existing highway (existing highway retained and used as one of the two carriageways) and
·Realignment - construction of a dual carriageway on a new alignment (existing highway retained as a service road providing access to properties and local roads).
The two carriageways will be separated by a central median. The Right-of-Way (ROW, or road reservation) requirements assumed for this project are [an] additional 50m width for duplication, and approximately 80m width for realigned dual carriageway.
(2) Preparation of an EES —the Scoping Requirements and the Ministerial Guidelines
On 27 October 2010, the Minister advised VicRoads that it was necessary for an EES to be prepared. In the public notice of that decision, the Minister gave the following reasons:
Reasons for Decision:
· The project is likely to result in significant adverse effects on biodiversity, including native vegetation, listed flora and fauna species and listed ecological communities.
· The project could have significant effects on Aboriginal and non-Aboriginal cultural heritage.
· The project could have significant effects on existing land uses, infrastructure and communities, including by impacting on amenity and landscapes.
· The opportunity to avoid or minimise significant adverse effects through the selection of the roadway alignment and design, as well as mitigation and offsetting measures, requires further detailed investigation.
· An integrated assessment of environmental effects associated with alternative alignments is needed to inform decision-making.
The Minister noted the procedures and requirements applying to the drafting of an EES. These included the preparation of scoping requirements. Scoping requirements detail the matters to be investigated and documented, in accordance with the Ministerial guidelines for the assessment of environmental effects under the EE Act (‘the Ministerial Guidelines’).[22] The Minister’s reasons for requiring an EES continued:
[22]Victorian Government Department of Sustainability and Environment, Ministerial guidelines for assessment of environmental effects under the Environment Effects Act 1978 (June 2006).
2. The procedures and requirements applying to the preparation of the EES, in accordance with section 8B(5) of the Environment Effects Act 1978 and the Ministerial guidelines for assessment of environmental effects under the Environment Effects Act 1978 (the ‘Ministerial Guidelines’), are as follows:
(i)The EES is to give attention to the investigation of potential environmental effects of the proposed works and relevant alternatives, as well as associated environmental mitigation and management measures, including with respect to:
·Effects on biodiversity including native vegetation, listed fauna, flora, and ecological communities, and the Langi-Ghiran State Park;
·Effects on cultural heritage …
…
(iii) The matters to be investigated and documented in the EES will be set out in detail in the scoping requirements to be prepared for the project in accordance with the Ministerial Guidelines. Draft scoping requirements will be exhibited for 15 business days for public comment, before being finalised and issued to the proponent.
(iv) The level of detail of investigation for the EES studies should be consistent with the scoping requirements and be adequate to inform an assessment of the acceptability of its potential environmental effects, in the context of the Ministerial Guidelines.
On 27 October 2010, the Minister also wrote to VicRoads, the Minister for Roads and Ports, and to the Councils, giving notice under s 8B(4)(a)(i) of the EE Act. In the letter to each Council, the Minister referred to them as ‘a relevant decision-maker’ under ss 8A and 8B(4) of the EE Act and drew their attention to the provisions of s 8C. He also identified the relevant decisions the Council might make as future decisions under the Planning Act:
Dear Mayor
REFERRAL UNDER THE ENVIRONMENT EFFECTS ACT 1978
WESTERN HIGHWAY DUPLICATION – BEAUFORT TO ARARAT
VicRoads has sought my advice on the need for an Environment Effects Statement (EES), under the Environment Effects Act 1978 (EE Act), for the proposed duplication of the Western Highway between Beaufort and Ararat.
I have determined that an EES is required for this project, as described in the referral accepted on 22 September 2010,[[23]] for the reasons attached.
This letter provides notice to you, as a relevant decision-maker, under both sections 8A and 8B(4) of the EE Act. Therefore, I draw your attention to the provisions of section 8C of the Act, which prevent decisions from being made and works from proceeding until the EES has been completed and my subsequent assessment of the project has been considered. I raise this in the context of your future decisions under the Planning and Environment Act 1987.[24]
[23]This wording was used in the letter to the Pyrenees Shire Council. The letter sent to the Ararat Rural City Council was in almost identical terms save that the date of acceptance of the referral was said to be 18 August 2010.
[24]At the hearing the Minister observed that the reference to s 8B(4), in the letters to the Councils, probably ought to have been to s 8B(6) because it is s 8B(6) that requires the Minister to give ‘to each person or body to whom a direction is given under section 8A in respect of the works’ the notice that has been sent under s 8(4)(a). Section 8B(4)(a) is limited to giving notice to the proponent (here, VicRoads) and any relevant decision-maker who has come to the Minister for advice as to whether an EES should be prepared for the works (which is not relevant here). The direction to the Councils was given under s 8A.
The Ministerial Guidelines are made under s 10 of the EE Act. They state that the Minister may ‘typically’ require the proponent to prepare an EES where ‘there is a need for integrated assessment of potential environmental effects (including economic and social effects) of a project and relevant alternatives’.[25] The general objective of the assessment process is to ‘provide for the transparent, integrated and timely assessment of the environmental effects of projects capable of having a significant effect on the environment’.[26] Specific objectives include to ‘provide for the transparent assessment of potential environmental effects of proposed projects, in the context of applicable legislation and policy, including principles and objectives of ecologically sustainable development’. Under the heading ‘What is ecologically sustainable development?’, the Ministerial Guidelines include several principles, including, in particular, the precautionary principle, in (3)(b):
(3)The following are to be considered as guiding principles of ecologically sustainable development—
…
(b)if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation; …[27]
[25]Ministerial Guidelines, 2.
[26]Ministerial Guidelines, 3.
[27]Ministerial Guidelines, 3.
In the section of the Ministerial Guidelines dealing with scoping and preparing an EES, the document states that the ‘set of matters to be investigated and documented in an EES is the scope of an EES. The detailed scope for an EES is set out in the “scoping requirements” issued for each project by the Minister’.[28] It is further noted that:
Scoping requirements and EES documentation should be prepared in the context of the principles of a systems approach and proportionality to risk.
A systems approach involves the consideration of potentially affected environmental systems and interacting environmental elements and processes. This will enable potential interdependence to be identified, helping to focus relevant investigations and identify opportunities to avoid, mitigate or manage adverse effects. An inter-disciplinary approach should be adopted where appropriate.
A risk-based approach should be adopted in the assessment of environmental effects so that suitable, intensive, best practice methods can be applied to accurately assess those matters that involve relatively high levels of risk of significant adverse effects and to guide the design of strategies to manage these risks. Simpler or less comprehensive methods of investigation may be applied to matters that can be shown to involve lower levels of risk.[29]
[28]Ministerial Guidelines, 13.
[29]Ministerial Guidelines, 14 (italics in original).
In relation to identifying relevant environmental effects at the scoping and EES preparation stage, the Ministerial Guidelines describe ‘ecological systems’ in the following terms:
· Ecological systems
Assessment of potential project effects on, and risks to, ecological systems is a fundamental aspect of an EES. An EES should provide an inventory of existing ecological conditions, as well as an analysis of ecosystem relationships that might be affected by a project.
…
Relevant components of ecological systems include:
· natural or semi-natural ecological communities
· populations or habitat of indigenous species of flora or fauna of conservation significance
· ecosystems processes supporting biodiversity, ecological productivity and environmental quality.[30]
[30]Ministerial Guidelines, 16 (emphasis in original).
The Ministerial Guidelines also outline the expected structure of an EES, beginning with a short summary, then a main report, to be followed by technical appendices cross referenced to the main report. The main report should provide ‘a comprehensive response to the scoping requirements’ but be ‘concise, clear and relevant to the issues and decisions that need to be addressed. It should be analytical rather than encyclopaedic in approach, addressing the issues in a depth proportionate to the environmental risk’.[31]
[31]Ministerial Guidelines, 20 (emphasis added).
The Ministerial Guidelines note that the investigation by the proponent needs to be sufficient to enable informed responses by the public and agencies:
The proponent is responsible for preparing an EES that adequately addresses the matters in the scoping requirements and any other relevant issues. These matters need to be sufficiently investigated and clearly documented to enable informed responses by the public and agencies.[32]
[32]Ministerial Guidelines, 21.
With respect to a ministerial assessment of the EES, the Ministerial Guidelines note that the Minister may conclude that ‘a project (with or without limited modifications) would have an acceptable level of environmental effects, having regard to the overall project outcomes’.[33]
[33]Ministerial Guidelines, 27.
In September 2011, the Minister published scoping requirements for the preparation of the EES by VicRoads (‘the Scoping Requirements’). These set out the range of matters to be investigated and documented in the EES. The judge held that the Scoping Requirements had no statutory force and were not guidelines laid down under s 10 of the EE Act. Rather, they ‘were no more than a detailed description of what the Minister expected VicRoads to address in preparing the EES for the Stage 2 works’ and they ‘did not affect the nature of the Minister’s assessment function under the EE Act’.[34] This is relevant to ground 6 of the grounds of appeal.[35]
[34]Reasons [115].
[35]See [177]–[183] below.
The judge also noted that the Scoping Requirements required a ‘general description’, rather than an ‘accurate’ description, of the existing environment and an ‘assessment’, not ‘accurate details’, of any potential effects of the works on biodiversity.[36] Although the Scoping Requirements set a high standard for the EES, the judge found that ‘it was not a standard of perfection. They did not require the EES to be accurate in every particular’.[37]
[36]Reasons [116].
[37]Reasons [116].
The Scoping Requirements referred to the need for the EES to describe the existing environment and to identify the relevant legislation, in these terms:
3.4 Existing Environment
The EES should incorporate a general description of the features of the environment in the vicinity of the preferred alignment and relevant alternatives.
The description of the existing environment should:
· Provide an overview of the regional environmental setting;
· Provide a detailed description of local environments potentially affected by the project, including:
- All areas and aspects of the environment that may be affected;
- Details of values and uses of the environment, and any notable features;
- Assessment of each aspect of the environment’s sensitivity to change or disturbance; and
- Good quality maps, plans, photographs, diagrams and other descriptive detail on the above;
· Combine published information with sufficient new field data to provide a firm and suitably reliable basis for prediction of environmental effects, especially with respect to key environmental assets and values that may be affected; and
· Clearly identify the sources and accuracy of the information.
3.5 Applicable Legislation, Policies and Strategies
The EES will need to identify relevant legislation, policies and strategies, and assess their specific requirements or implications for the project, particularly in relation to required approvals.
The EES should outline the relevant State and Commonwealth legislation, including:
·Environment Effects Act 1978;
…
·Planning and Environment Act 1987, and relevant provisions in the Pyrenees and Ararat Planning Schemes;
…
·Road Management Act 2004;
·Transport Integration Act 2010;
…
The EES should also take account of any relevant published guidance relating to obligations under the EPBC Act, such as policy statements and/or recovery plans for nationally listed threatened species and ecological communities.
One of the pieces of legislation identified is the Transport Integration Act 2010 (‘the Transport Act’), s 19 of which sets out a statement of the precautionary principle.[38] The applicants seek to rely upon the reference in 3.5 of the Scoping Requirements to the Transport Act to support the proposition that the Minister was bound to consider the precautionary principle in the 2013 Ministerial assessment. This is relevant to ground 9 of the grounds of appeal.[39]
[38]The terms of s 19 are set out at [207] below.
[39]See [206]–[218] below.
The Scoping Requirements also required identification of the potential effects on biodiversity and compliance with Victoria’s Native Vegetation Management - A Framework for Action, 2002 (‘the Framework’).
4.3 Biodiversity and Habitat
Objective: To avoid or minimise effects on flora and fauna species and ecological communities listed under the Flora and Fauna Guarantee Act 1988 [‘the FFG Act’] or the Environment Protection and Biodiversity Conservation Act 1999 [‘the EPBC Act’], as well as to comply with requirements under Victoria’s Native Vegetation Management - A Framework for Action, 2002.
The EES should provide an assessment of any potential direct and indirect effects of the proposed works and relevant alternatives on terrestrial and aquatic biodiversity, habitats and other conservation values.
Specifically, the EES should:
· Characterise the native vegetation and terrestrial and aquatic habitat located in the project area. Such characterisation should include the existence or potential existence of any species or ecological communities listed under the FFG Act or EPBC Act and any declared weeds or pathogens. The characterisation should be informed by relevant databases, literature and appropriate seasonal and targeted surveys;
· Provide evidence to demonstrate that adequate information (eg, desktop database searches, targeted surveys and/or modelling) has been compiled on the potential and actual presence of threatened species and ecological communities, having regard to the likelihood and consequence of impact. In the absence of positive identification, a precautionary approach should be taken for the potential existence of listed species and ecological communities listed under the EPBC Act;
· Identify and assess potential effects of the proposed project and relevant alternatives on existing native vegetation, habitat (quality and continuity), listed flora and fauna species and ecological communities. Potential effects to be assessed should include barriers to the movement of wildlife, fragmentation of habitat and vehicle road kills. This assessment should address the relevant Potentially Threatening Processes listed under the FFG Act;
· Assess any effect of the project on other conservation values, including areas of scientific or other special conservation significance;
· Identify and assess potential direct and indirect effects on aquatic habitat values, including on significant aquatic species, that may result from the project and, in particular any proposed waterway crossings;
· Identify potential effects of the project on the dispersion and distribution of weeds and pathogens;
· Specify any measures to avoid, minimise and mitigate biodiversity impacts, especially on threatened or other listed species;
·Outline any obligations arising from Victoria’s Biodiversity Strategy and Victoria’s Native Vegetation Management - A Framework for Action. In particular, the EES should address how vegetation removal has been avoided and minimised by the proposed works;
· Outline an offset strategy for unavoidable clearing of native vegetation in the context of both Victoria’s Native Vegetation Management - A Framework for Action and Draft Policy Statement 4.1: Use of environmental offsets under the EPBC Act. This offset strategy should describe proposed arrangements for ongoing management of offsets, as well as details on the security of tenure and ownership of offsets;
· Identify methods of vegetation rehabilitation for both areas disturbed for construction purposes only and of any sections of existing road to be made redundant;
· Describe the proposed approach and measures for long-term management of retained native vegetation and habitat areas within and adjacent to the road reservation along the duplication highway; and
· Describe at a level of detail proportionate to the significance of potentially affected assets, the likely residual effects of the project on biodiversity and habitat values.
The EES should also include a separate summary assessment addressing effects on, and avoidance, mitigation and management measures for, matters of national environmental significance. This summary must include, but not be limited to, information on the following species and ecological communities listed as threatened under the EPBC Act:
· Southern Brown Bandicoot, Golden Sun Moth, Plains Wanderer, Striped Legless Lizard, Growling Grass Frog, Murray Cod, Australian Grayling and Eastern Dwarf Galaxias;
· Button Wrinklewort, Spiny Rice-flower, Langi Ghiran Grevillea, Tawny Spider-orchid and Large-fruit Fireweed;
· Natural Temperate Grasslands of the Victorian Volcanic Plains; and
· Buloke Woodlands of the Riverina and Murray-Darling Depression Bioregions.[40]
[40]Emphasis added. Footnote omitted.
The Scoping Requirements also noted that the project would require a range of approvals under Victorian legislation including ‘[a]mendments and permits under the Pyrenees and Ararat Planning Schemes to reserve land for a public purpose, construct the highway duplication, remove native vegetation and carry out other associated works’.[41] In setting out the general approach to be taken in preparing the EES assessment of specific environmental effects, the Scoping Requirements stated that the ‘EES documentation should be prepared in the context of the principles of a systems approach and proportionality to risk, as set out in the … Ministerial Guidelines’.[42]
(3) VicRoads EES — September, 2012
[41]Scoping Requirements, 5 [2.1].
[42]Scoping Requirements, 12 [4.1].
In September 2012, VicRoads published its EES in which it presented two options for the whole of the Stage 2 road alignment and expressed a preference for Option 2. The EES, including its eight appendices, is more than 1,000 pages in length. Technical Appendix H is a report entitled ‘Final Report: Western Highway Project: Section 2, Beaufort to Ararat, Victoria – Biodiversity and Habitat Impact Assessment Report – Flora, Fauna, and Ecological Communities’ prepared by Ecology and Heritage Partners Pty Ltd (‘EHP’) for VicRoads, and was dated August 2012 (‘EHP 2012 Report’). The judge described the EES as ‘a multidimensional assessment of the specific environmental effects of the Stage 2 project’[43] covering a range of matters, including: ‘planning and land use, traffic and transport, soils and geology, groundwater, surface water, biodiversity and habitat, cultural heritage, air quality, noise and vibration, visual and landscape, social, economic, and matters of national environmental significance’.[44]
[43]Reasons [2].
[44]Reasons [2].
In the foreword to the EES, the CEO of VicRoads wrote that:
VicRoads proposes a duplication alignment that utilises the existing road reserve as much as possible. However, at various points the proposed new carriageway moves away from the existing road reserve to provide an outcome that balances the protection of the national and state listed vegetation communities and species with the impact on landowners adjacent to the highway.
In the EES executive summary, it was noted that the Western Highway is the principal road link between Melbourne and Adelaide, it is the key transport corridor through Victoria’s west and ‘[i]n terms of freight movements, the Western Highway is one of the busiest rural highways in the country with the traffic expected to significantly increase by 2040’. The existing highway between Ballarat and Stawell at that time had remained relatively unchanged for almost a century in some locations and in recent times significant increases in traffic volume and the proportion of heavy vehicles had led to ‘a relatively high crash rate’. The key drivers identified for Stage 2 of the project were road safety and transport efficiency.
Following a three-phase assessment process, VicRoads presented two options for consideration, with a preference for Option 2:
Both Options 1 and 2 would meet project objectives and deliver the desired benefits of improved road safety and transport efficiency.
Option 2 has less land severance and therefore less impact on farming productivity within the Project Area. From an environmental perspective, Option 2 also has slightly less impact [on] golden sun moth habitat and would result in the removal of less Grassy Eucalypt Woodland of the Victorian Volcanic Plains.
Option 1 has a reduced risk of encountering unstable geological units given its alignment along the existing highway corridor at Langi Ghiran State Park compared to Option 2. Option 1 would also result in the removal of 21ha fewer EVC’s [Ecological Vegetation Classes] compared to Option 2 and would result in one less dwelling being directly impacted by the alignment.
Based on an analysis of potential impacts of each option, VicRoads prefers Option 2, but acknowledges that Option 1 would also satisfy the overall project objectives.
In relation to biodiversity and habitat, the EES executive summary concluded that Option 1 ‘is considered the preferred alignment from the Biodiversity and Habitat perspective due to least impact on Very High and High conservation significance vegetation’. It acknowledged that the Golden Sun Moth (‘GSM’), which is critically endangered under the Environment Protection and Biodiversity Conservation Act 1999 (‘the EPBC Act’) and is listed as threatened under the Flora and Fauna Guarantee Act 1988 (‘the FFG Act’), would be significantly impacted by the project. However, it noted that ‘it was not possible to entirely avoid impacts on matters on NES [National Environmental Significance]’, with the result that under Option 1, 31.56 hectares of GSM habitat would be removed and 23.8 hectares would be removed under Option 2. The EES also noted the loss of LOTs, although it anticipated that with ‘management measures including micro-alignment and construction planning’, the impact on LOTs would be ‘minor’:
The Project could also result in the loss of up to 221 Large Old Trees (LOTs), 140 of which are of Very High conservation significance in Option 1 and up to 214 LOTs, of which 109 are of Very High conservation significance in Option 2. Mitigation measures including construction refinements during detailed design should reduce the number of LOTs impacted by the Project. It is expected that the actual number of LOTs impacted would be less than these totals because management measures including micro-alignment and construction planning would be implemented to minimise the number of LOTs impacted. It is expected that the impact on LOTs would be minor.
The judge observed that these figures appeared to be derived from Technical Appendix H to the EES, the EHP 2012 Report, which included a table showing tree location data in the study area of 675 recorded trees. She noted that although Appendix 2.5 to the EHP 2012 Report showed that ‘the location of these trees was precisely recorded, a less rigorous method was used to estimate the potential losses of large old trees, in Appendix 2.4’.[45] She noted that a footnote to Technical Appendix H stated that further assessment would be required to determine the number of LOTs within all patches in the study area.[46]
(4) The Panel
[45]Reasons [91].
[46]Reasons [91].
In November 2012, the Minister appointed a panel to conduct an inquiry under s 9 of the EE Act as well as appointing the inquiry members as an advisory committee under s 151 of the Planning Act to consider the draft planning scheme amendments (‘the Panel’). The Panel conducted public hearings in December 2012, during which the Mackenzies put in written submissions proposing a ‘Northern Option’ close to the existing highway.
The Mackenzies owned land in the Mt Langi Ghiran area, adjacent to the Western Highway, south of the Langi Ghiran State Park. The judge noted that Option 1 ‘contemplated a new road through their properties, and involved compulsory acquisition of parts of their land’, while Option 2 ‘also affected their land, but to a lesser extent’.[47]
[47]Reasons [4].
As the judge noted, the LOTs error ‘was not identified during the Panel’s inquiry, including in a report of Mark Sheppard of Practical Ecology, prepared for MairiAnne Mackenzie and provided by her to the Panel’.[48]
[48]Reasons [92].
In February 2013 the Panel published its report (the ‘Panel Report’)[49] in which it recommended adoption of Option 1, ‘even though it would involve greater severance impact on affected properties’.[50] The judge described the conclusion of the Panel that
Option 1 [was] the preferable alignment from a biodiversity and habitat perspective, due to ‘least impact on Very High and High conservation significance vegetation’. This conclusion was influenced by the preference of the Department of Sustainability and Environment (DSE) for Option 1 over Option 2, because Option 1 would involve less overall vegetation removal and would have less impact on Langi Ghiran State Park.[51]
[49]Inquiry Report; Advisory Committee Report – Environment Effects Statement and Draft Planning Scheme Amendments: Pyrenees Planning Scheme C37, Ararat Planning Scheme C27 – Western Highway Section 2, Beaufort to Ararat (11 February 2013).
[50]Reasons [95].
[51]Reasons [94] (citations omitted).
The judge noted that the Panel appeared to have accepted the EES figures for estimated losses of LOTs for the two options, but it was notable that it reached its conclusion about its preferred option despite the higher number of LOTs that would be lost under Option 1 than under Option 2.[52] She observed that:
The potential losses of large old trees was not singled out for consideration in the Panel’s comparison of the alignment options. It appears to have been one of a number of matters that contributed to the Panel’s conclusion that Option 1 would have a lower ecological impact than Option 2. Much greater prominence was given to the impact on vegetation of High and Very High conservation significance.[53]
[52]Reasons [94].
[53]Reasons [97].
The Panel report noted that affected property owners would be entitled to compensation for any compulsory acquisition of their land:
On balance, the Panel believes the avoidance of significant vegetation, coupled with the lesser severance impact on agricultural land around and west of Buangor, and maintenance of the design objectives (such as 110 kilometres an hour for the whole project length) for Option 1 outweighs the marginal benefits of Option 2 (such as estimated costs and benefits, and less severance west of Hillside Road). In coming to this view, the Panel gives weight to the opportunity for compensation of the impacts on individual property owners provided by the Land Acquisition and Compensation Act 1986.[54]
[54]Panel Report, 128 [27.3].
The Panel Report also set out the findings and conclusions in relation to the inquiry under s 151 of the Planning Act. The Panel concluded that it would be appropriate for the Minister to adopt Option 1 as the basis for detailed design and implementation of Public Acquisition Overlays. Further, the Panel recommended that the Minister approve the relevant planning scheme amendments given the public consultation process that had already occurred:
[T]he Panel believes that given the public exhibition process that has been employed, the fact that all interested parties have been given a fair opportunity to be heard and the transparency of VicRoads regarding the process, it would be appropriate for the Minister for Planning to approve the Planning Scheme Amendments as Ministerial Amendments under Section 20(4) of the [Planning Act].[55]
(5) The 2013 Ministerial assessment
[55]Panel Report, 128 [27.4].
In May 2013, the Minister published the 2013 Ministerial assessment; that is, his Assessment of Stage 2 under the EE Act. He concluded that Option 1 ‘provides a more appropriate balance between the likely environmental effects, social and economic outcomes’.[56] He found that the potential environmental effects were ‘acceptable, provided the appropriate minimisation, mitigation and management measures, as reflected in the findings of this Assessment, are implemented’.[57] He concluded that the project ‘will provide a net benefit to the State of Victoria, having regard to both the long-term and short-term economic, environmental and social considerations’.[58]
[56]2013 Ministerial assessment, 25.
[57]2013 Ministerial assessment, 25.
[58]2013 Ministerial assessment, 25.
In relation to the issue of biodiversity, the Minister acknowledged that the identification of the option with lower impact was ‘not entirely straightforward’,[59] although VicRoads concluded that Option 1 was considered the preferred alignment from the biodiversity and habitat perspective.[60] The extent of impact on vegetation of Very High conservation significance (‘VHCS’) and High conservation significance (‘HCS’) was more determinative than the slight differences in impacts on GSM habitat or other matters of NES. Option 1 also provided superior ecological outcomes in relation to the impact on the Langi Ghiran State Park, less road kill for native animals and better habitat connectivity. He expressed his conclusion on biodiversity as follows:
[59]2013 Ministerial assessment, 12.
[60]See [51] above.
While the two options would have quite different impacts in the area west of Buangor near the Langi Ghiran State Park, WHP2 [Western highway duplication, Stage 2] (both options) would result in significant impacts on:
·native vegetation of VHCS and HCS
·two ecological communities listed under the EPBC Act (although these are largely components of the high quality native vegetation already mentioned)
·GSM habitat
The identification of the option with the lower biodiversity impacts is not entirely straightforward, although the EES clearly concludes that ‘Option 1 is considered the preferred alignment from the biodiversity and habitat perspective’. Overall, Option 1 has significantly less impact on native vegetation, including less impact on VHCS and HCS native vegetation, while Option 2 has less impact on GSM habitat.
The ecological consultants who undertook the flora and fauna investigations for VicRoads recommended that Option 1 should be selected, particularly due to the much lower impact on high quality native vegetation and habitat. DSE supported this view through their submission to the Inquiry. Both considered the extent of VHCS and HSC vegetation to be a more determining factor than the slight differences in impacts on GSM habitat or other matters of NES for the two options.
Apart from the direct loss of native vegetation and fauna habitat, Option 1 provides the opportunity for superior ecological outcomes in terms of: lower impacts on Langi Ghiran State Park, less potential for road kill of native animals due to reduced habitat exposure, and better habitat connectivity between the State Park and bushland south of the existing highway.
The Inquiry has carefully considered this matter and has also found that Option 1 is superior in terms of the overall biodiversity outcomes (even though impacts on matters of NES would be marginally higher).
It is my assessment that:
·WHP2 would result in the loss of a considerable amount of native vegetation and habitat, including significant quantities of the VHCS and HCS categories, affecting 10 EVCs, six of which are endangered.
·The EES demonstrates that the alignment options selection process and specific design measures have attempted to avoid and minimise the impact on native vegetation to the extent practicable in achieving a highway of AMP3[[61]] standard between Beaufort and Ararat, although further avoidance of native vegetation (consistent with the NVMF[[62]]) can be achieved through the detailed design stage (as outlined in the EES).
[61]VicRoads Access Management Policy, Schedule 3 (Limited Access – Rural): 2013 Ministerial Assessment, 7 ‘Relevant Context’.
[62]Victoria’s Native Vegetation Management – A Framework for Action.
·The proposed clearance of VHCS native vegetation will be an unavoidable impact of the project. This is considered to be acceptable providing appropriate offsets are provided that meet the requirements of the NVMF and given there is some opportunity to minimise this during the detailed design stage.
·There would be significant impacts on two EPBC-listed communities (Natural Temperate Grassland of the Victorian Volcanic Plain and Grassy Eucalypt Woodland of the Victorian Volcanic Plain). These impacts would be considered acceptable only if offsets were provided that met the NVMF and the EPBC Act Environmental Offsets Policy (October 2012).
·The impacts on the Spiny Rice-Flower and the Dwarf Galaxias are not likely to be significant provided the environmental management commitments in Section 21.7.6 of the EES are fully implemented.
·WHP2 would have a significant impact on the Golden Sun Moth through habitat removal, despite attempts to minimise this impact through the options selection process. These impacts would be acceptable only if offsets are provided to satisfy both the NVMF and the EPBC Act Environmental Offsets Policy (October 2012).
·Option 1 presented in the EES is superior in terms of overall biodiversity outcomes, particularly in reducing impacts on native vegetation of VHCS and HCS. It is noted however that Option 1 would have slightly higher impacts on matters of NES.
Further, it is my assessment that:
·The commitments in Section 21.7.6 of the EES for managing potential impacts on flora, fauna and native vegetation be fully implemented.
·A native vegetation management plan detailing additional measures to reduce the impacts on native vegetation and listed ecological communities, identified during the detailed design stage, be prepared to the satisfaction of DSE and DSEWPC before construction commences.
·Given the potential significant effects on threatened species and communities, specific conservation management plans for the Spiny Rice-flower, Dwarf Galaxias and Golden Sun Moth be prepared by VicRoads in consultation with and to the satisfaction of DSEWPC and DSE, prior to any works being undertaken which may affect these species.
·A native vegetation offset management plan be prepared to address the requirements of both the NVMF and the EPBC Act Environmental Offsets Policy (October 2012), to the satisfaction of DSE and DSEWPC. Further, either as part of or in addition to the native vegetation offset management, a plan for the long-term sustainable management of vegetation in the existing road reserve be endorsed by DSE.[63]
[63]2013 Ministerial assessment, 12–13 (footnotes omitted).
The Minister ultimately assessed the balance of environmental, social and economic outcomes as favouring Option 1:
This Assessment has examined the predicted effects and likely outcomes of both options for WHP2 in light of the Inquiry report and submissions, to reach a conclusion on the superior option. It has established that the difference in effects between Options 1 and 2 (save for biodiversity and habitat) are not substantial and therefore not significant factors in selecting the final alignment.
So the focus of determining which option should be implemented is the consideration of effects on biodiversity and habitat, largely native vegetation with VHCS or HCS which provides habitat for protected species. In doing so, this Assessment finds that Option 1 (the ‘alternative alignment’ in the EES) would have a superior overall biodiversity outcome, due to clearly lower impacts on native vegetation (both total amounts and amounts of VHCS and HCS vegetation), as well as lower impacts on habitat areas adjacent to Langi Ghiran State Park. Option 1 would maintain better habitat connectivity between the State Park and large areas of bushland south of the existing highway in particular and result in less potential for road kill of native animals in this area of high biodiversity values. These ecological benefits in the areas adjacent and near the State Park, as well as the lower total amount of significant native vegetation to be cleared for Option 1, outweigh its marginally higher impact on Golden Sun Moth habitat and Grassy Eucalypt Woodland of the Victorian Volcanic Plain.[64]
[64]2013 Ministerial assessment, 25 (emphasis added).
On 21 October 2013, the Minister adopted and approved Amendment C27 to the Ararat Planning Scheme. The amendment applied a Public Acquisition Overlay over land required for the Stage 2 project, including parts of the Mackenzies’ land. (That acquisition occurred in August 2015.) It also incorporated a document in the Ararat Planning Scheme (‘the Amendment C27 Incorporated Document’), which imposed planning controls in a manner that meant that no planning permit was required:
4.0 CONTROLS
Despite any provision to the contrary or any inconsistent provision in the Ararat or Pyrenees Planning Schemes, no planning permit is required for, and no restrictions or prohibitions apply, to use or development of the Western Highway Section 2 Project Area … for:
·Buildings, works and any maintenance associated with the duplication of the Western Highway.
·Removal, lopping and destruction of vegetation, including native vegetation, providing it is undertaken in accordance with the Native Vegetation Assessment approved in accordance with Section 5.3 of this control.
·Activities ancillary to any of the abovementioned matters … [65]
[65]Ararat Planning Scheme – Amendment C27, Incorporated Document (July 2013), ‘4.0 Controls’.
Amongst the controls imposed were those in Section 5.3:
5.3 Construction Environmental Management Plan(s)
Consistent with the staging of works, and prior to the commencement of construction or carrying out of any buildings or works, Construction Environmental Management Plan(s) must be prepared in consultation with the DEPI, the relevant municipality of Ararat Rural City Council and or Pyrenees Shire Council, and then be submitted to, and endorsed by the Secretary of DTPLI (or delegate).[66]
[66]The acronyms ‘DEPI’ and ‘DTPLI’ mean, respectively, Department of Environment and Primary Industries and Department of Transport, Planning and Local Infrastructure.
The applicants rely upon the requirement to consult with the Councils in Section 5.3 as evidence of the decision-making role enjoyed by the Councils,[67] which is relevant to grounds 1 and 2.[68]
(6) The LOT error — Media release 2015
[67]See [94] below.
[68]See [80]–[113] below.
In November 2015, VicRoads issued a media release stating that its initial estimate of LOTs to be removed for the Stage 2 project along the Option 1 alignment had been underestimated. The media release said that, although the initial estimate was that 221 LOTs and 249 scattered trees would have to be removed, subsequent on-the-ground counting identified a total of 1,645 LOTs and scattered trees for removal. The worst-case scenario was said to be 1,645 but the actual number of trees required to be removed was less than that, namely, 885.
By May 2016, Section 2A of Stage 2 of the project was completed.[69]
[69]It appears that the completion of the Section 2A works in 2016 meant that nothing further was required to be done affecting the Shire of Pyrenees.
In October 2016, the applicants commenced a proceeding in the Supreme Court seeking interlocutory injunctions against VicRoads and the Minister on the basis that, due to the LOT error, the Minister’s assessment of Stage 2 under the EE Act and the approval of Amendment C27 in 2013 were invalid. Emerton J refused to grant interlocutory injunctions on 22 November 2016[70] and listed the matter for trial in early 2017.
(7) Expiry of Amendment C27 — February 2017
[70]Mackenzie v VicRoads [2016] VSC 698.
In February 2017, VicRoads became aware that the Amendment C27 Incorporated Document had expired. The Section 2B works immediately stopped and the trial date was vacated.
On 2 June 2017, VicRoads wrote to the Minister asking him to prepare another amendment to the Ararat Planning Scheme, explaining that the approval was required because of the expiry of the Amendment C27 Incorporated Document and the need to reinstate the planning authority in order for the Section 2B works to recommence.
(8) The Exemption and the Approval and Adoption decisions — December 2017
In June 2017 VicRoads requested that the Minister exempt himself from various notice requirements, pursuant to s 20(4) of the Planning Act.
On 17 December 2017, having regard to materials provided by the Department of Environment, Land, Water and Planning, the Minister decided, under s 20(4) of the Planning Act, to exempt himself from the requirements of ss 17 to 19 of that Act.[71] At that time the Minister also adopted Amendment C37 to the Ararat Planning Scheme, under s 29 of the Planning Act, and approved it under s 35.[72] The Minister was the planning authority for Amendment C37.
[71]See [24]–[25] above.
[72]See [28]–[29] above, respectively.
On 28 December 2017, Amendment C37 to the Ararat Planning Scheme was made. Amendment C37 introduced a new incorporated document (dated June 2017) (‘the Amendment C37 Incorporated Document’) for Section 2B of the project, the effect of which was to authorise work to continue on the Section 2B works. The Amendment C37 Incorporated Document also provided that no planning permit was required for the project:
4.1 Exemption from Planning Scheme Requirements
Despite any provision to the contrary or any inconsistent provision in the Ararat Planning Scheme, no planning permit is required for, and no planning provision in the Ararat Planning Scheme operates to prohibit or restrict, the use or development of land for the purposes of the project.
The requirement to consult the Ararat Rural City Council, included within the earlier Amendment 27 Incorporated Document,[73] was repeated in the Explanatory Report for Amendment C37 as follows:
Ararat Rural City Council is required to be consulted in the preparation of the Construction Environmental Management Plan and may be consulted prior to the approval or amendment of other plans and documents.
[73]See [64] above.
Furthermore, the Amendment C37 Incorporated Document required that an approved Construction Environmental Management Plan ‘be prepared in consultation with the Department of Environment, Land, Water and Planning (DELWP), and the relevant municipality prior to being submitted to, and endorsed by, the Secretary of DELWP (or delegate)’.[74]
[74]Section 4.2.9 also provided that DELWP ‘may seek the views of Ararat Rural City Council or any other relevant authority’ in deciding whether to consent to an amendment.
The Section 2B works recommenced in January 2018. However, the works paused for some months in June 2018 because of protests in relation to six trees of cultural significance.
The proceeding was reconstituted in the light of the Minister’s decisions on 17 December 2017, and further and better particulars were filed in October 2018. As mentioned, the applicants sought judicial review and declarations in respect of the 2013 Ministerial assessment, the Exemption decision and the Adoption and Approval decision. The judge dismissed the proceeding.
In support of their application for leave to appeal, the applicants rely upon multiple grounds of appeal. These include challenges to the statutory construction of s 8C of the EE Act; complaints about the judge’s decision to exclude certain evidence; challenges to the judge’s conclusion that the Minister was not obliged to further consider the environmental impact of the works when making the Adoption and Approval decision; and a complaint about the failure of the Minister to comply with the precautionary principle.[75] We set out each ground when we examine it in detail below and, as foreshadowed, we elaborate upon the judge’s reasoning, where relevant, with respect to each ground.
[75]The original grounds of appeal included ground 5, namely, that the applicants were denied procedural fairness in the conduct of the hearing in circumstances affected by the COVID-19 pandemic. During the hearing of the appeal, counsel for the applicants indicated that proposed ground 5 would not be pressed and he clarified that he was grateful to the judge and the court staff for conducting a virtual hearing of the matter at an early stage in the pandemic in difficult and unprecedented circumstances. We also note that no ground of appeal directly challenges the Exemption decision. However, some of the applicants’ submissions do seek to impugn the Exemption decision and we address those submissions.
10.Further to grounds 1, 8 and 9 above, the trial Judge erred in that she should have found that the Scoping Requirements including the precautionary principle required that the 2013 Ministerial Assessment be declared as invalid and should not have been relied on for the purposes of:
(a)approving and adopting Amendment C37 in 2017;
(b)commencing the works within the meaning of the EE Act;
(c)avoiding and minimising the environmental and cultural heritage impacts of the project in the selection of the optimal alignment for the Section 2B works.
The Transport Act contains a statement of the precautionary principle in s 19, as follows:
19 Precautionary principle
(1)The precautionary principle means that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(2)The precautionary principle includes —
(a) a careful evaluation to avoid serious or irreversible damage to the environment wherever practicable; and
(b)an assessment of the risk-weighted consequences of various options.
The judge noted that s 19 of the Transport Act is an expression of the precautionary principle[169] but contrasted this with the EE Act which did not require the application of the principle to the Minister in making the 2013 Ministerial assessment. She said:
The EE Act prescribes no framework within which an assessment must take place. In each case, it is for the Minister to determine what the assessment should comprise. Unlike, for example, the Transport Integration Act 2010 (Vic), the EE Act contains no vision statement, policy objectives, or decision-making principles. There is in the EE Act no ‘statutory indication of the weight to be given’ to any particular matter, or to any aspect of the environment that may be affected by the works. Contrary to the plaintiffs’ submission, the EE Act does not require application of the precautionary principle by the Minister. It follows that, in making an assessment of the environmental effects of a project, it is also for the Minister to determine the attribution of weight between those matters identified as relevant to the assessment.[170]
[169]Reasons [79] n 43.
[170]Reasons [79] (emphasis added) (citations omitted).
The applicants submit that the precautionary principle is a fundamental principle of environmental decision-making in Victoria and is derived from several instruments which govern, relevantly, ministerial decision-making. It is one of the matters to be considered under the Inter-Governmental Agreement on the Environment.[171] It is also referred to in the Ministerial Guidelines, in the definition of ‘ecologically sustainable development’.[172] The applicants also rely upon s 3.5 of the Scoping Requirements which identify that s 19 of the Transport Act should be outlined in the EES.[173]
[171]Inter-Governmental Agreement on the Environment, May 1992, Paragraph 3.5.1.
[172]See [35] above.
[173]See [43] above.
The applicants submit that the Scoping Requirements, the Ministerial Guidelines, as well as the important cultural heritage considerations identified in Thorpe v Head, Transport for Victoria (‘Thorpe’)[174] and Onusv Minister for the Environment,[175] ought to have led the Minister to apply the precautionary principle and to have adopted a cautious approach whereby a fresh risk-based assessment of the relative environmental impacts and overall merits of the respective alignments is undertaken.
[174][2020] VSC 804.
[175][2020] FCA 1807.
VicRoads submits that the applicants are wrong to read the judge’s conclusion, of which they complain, in ground 9, as relating to the Adoption and Approval decision in 2017 when it relates instead to a conclusion about the decision-making process for the 2013 Ministerial assessment made under the EE Act. In our view, it is clear it was the Minister’s decision under the EE Act, that is, the 2013 Ministerial assessment, that the judge was addressing.
The Minister, with the support of VicRoads, objects to the applicants being permitted to rely upon ground 9 insofar as it impugns the Adoption and Approval decisions made under the Planning Act. He emphasises also that the conclusion reached by the judge in respect of the non-binding nature of the precautionary principle was a conclusion about the EE Act. He submits that the conclusion was expressed in these restricted terms because neither in the pleadings, nor in the submissions below, did the applicants argue that in making the Adoption and Approval decisions, under ss 29 and 35 of the Planning Act, respectively, the Minister was bound to have regard to the precautionary principle, expressly or by implication. Accordingly, neither VicRoads nor the Minister sought to address in evidence whether the preconditions to the application of the principle were satisfied. For example, s 19 of the Transport Act, set out above,[176] identifies the preconditions for the application of the principle as where ‘there are threats of serious or irreversible environmental damage’ and ‘a lack of full scientific certainty’. The respondents also did not seek to address in evidence whether the Minister, in making the Adoption and Approval decision, had regard to matters relevant under the principle.
[176]See [207] above.
We accept that this Court will not grant leave to appeal on a new point ‘where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding’.[177] Nor will it do so unless it is expedient in the interests of justice to do so.[178] We further accept that, had this issue been raised at trial, the respondents could have sought to adduce evidence to rebut the issue. Furthermore, the applicants have been unable to satisfy the Court that it would be in the interests of justice for them to be permitted to challenge directly the Adoption and Approval decision on the basis that the Minister failed to take into account the precautionary principle when he was obliged to do so.
[177]Coulton v Holcombe (1986) 162 CLR 1, 7–8; [1986] HCA 33. See also Botsman v Bolitho [No 1] (2018) 57 VR 68, 105 [168]; [2018] VSCA 278; Canale v G W & R Mould Pty Ltd [2018] VSCA 346, [1], [46]–[49]; Harplex Pty Ltd v Konstandellos (2018) 54 VR 174; [2018] VSCA 67.
[178]Botsman v Bolitho [No 1] (2018) 57 VR 68, 105 [168].
However, in fairness to the applicants, it is possible to treat ground 9 as another example of the way in which they impugn the Adoption and Approval decision by treating it as ‘tainted’ because it was dependent on what they submit was a flawed 2013 Ministerial assessment. In other words, they rely on the precautionary principle to impugn the 2013 Ministerial assessment, as the judge understood them to do, and then seek to establish that as a basis for impugning the later Adoption and Approval decision. Understood in this way, we consider that it is permissible for the applicants to raise the issues identified in ground 9.
However, the applicants’ submission, understood in this restricted way, faces the immediate difficulty that the process by which an allegedly flawed 2013 Ministerial assessment could ‘taint’ the Adoption and Approval decision depends upon the Minister, in making the Adoption and Approval decision in 2017, relying upon the 2013 Ministerial assessment. The difficulty is insuperable because we have already rejected the applicants’ submission, under ground 4(c), that the judge was in error in finding there was no such reliance.[179] The ‘tainting’ submission fails.
[179]See [194] above.
In any event, the applicants’ reliance upon s 19 of the Transport Act has already been considered and rejected by Emerton J when she dismissed the applicants’ application for interlocutory injunctions in Mackenzie v VicRoads, from which no appeal was brought.[180] Emerton J dismissed the submission based on s 19 because the obligation to take into account the precautionary principle under the Transport Act was limited to decisions under transport legislation and neither the EE Act nor the Planning Act fall under the definition of ‘transport legislation’:
The plaintiffs point to the decision-making principles in the Transport Integration Act 2010 (‘TI Act’), which include the precautionary principle. VicRoads is a ‘transport body’ for the purposes of the TI Act and s 24(2) provides that a transport body must have regard to the decision-making principles in making decisions ‘under any transport legislation’. ‘Transport legislation’ is defined in s 3 of the TI Act. The definition lists a series of Acts, along with any other Act declared to be transport legislation, none of which the plaintiffs identify as relevant. As a result, the TI Act does not appear to impose an obligation on VicRoads to apply the precautionary principle in this case.[181]
[180][2016] VSC 698.
[181][2016] VSC 698, [41]. See Transport Act s 3.
The applicants’ submission in this Court varies slightly from that argued before Emerton J. Here, the applicants are not submitting that s 19 of the Transport Act applies of its own force to decisions made under the EE Act (or under the Planning Act) but rather that it applied because it was incorporated by reference in the Scoping Requirements. However, we have already determined, in rejecting ground 6, that the Minister was not obliged to take the Scoping Requirements into account in his assessment of the EES.[182] Furthermore, the Ministerial Guidelines provide ‘guidance’ and no more. The premise of the applicants’ submissions in support of ground 9 has already been rejected.
[182]See [177]–[183] above.
The applicants also point to s 25 of the Transport Act which imposes an obligation on an ‘interface body’ (including a planning authority under the Planning Act) to ‘have regard to the transport system objectives when exercising powers and performing functions under any interface legislation which are likely to have a significant impact on the transport system’. However, the obligation would not have applied to the 2013 Ministerial assessment, made under the EE Act, as the applicants acknowledged that the EE Act did not fall under the definition of ‘interface legislation’ until September 2013 and the 2013 Ministerial assessment was made in May 2013. Insofar as the applicants seek to rely upon s 25 in respect of the Adoption and Approval decision in 2017, we accept the submissions of the Minister that they ought not be permitted to raise the issue because it could possibly have been met by evidence below.
With respect to ground 10, VicRoads submits that in substance the applicants are inviting this Court to undertake an impermissible merits review of the alignment of the Section 2B works.
We accept that important cultural considerations have been identified in the Thorpe and Onus decisions. However, in the earlier decision of this Court rejecting the applicants’ application for an adjournment of the appeal, it was observed that the Thorpe proceeding is not examining the validity of decisions made by the Minister.[183] The Onus proceeding is concerned with decisions made by the Commonwealth Minister for the Environment under federal legislation, namely the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The matters raised in the recent Thorpe and Onus proceedings were not pleaded or raised at trial in this proceeding. The Court Book below did not include Technical Appendix K to the EES, being the ‘Aboriginal Cultural Heritage: Standard Assessment Report, Parts 1 and 2’.[184] The applicants made no oral submissions in support of this aspect of ground 10 at the hearing of the appeal. It is not permissible to draw upon allegations in unrelated recent proceedings to impugn the validity of decisions made by the Minister in 2013 and 2017. We agree that the applicants are, in substance, seeking to have this Court conduct a merits review of the 2013 Ministerial assessment, and the Adoption and Approval decisions in 2017. This is beyond the scope of power of this Court. It is not for this Court, and not the purpose of this proceeding, to reconsider, on the merits, what is the optimal alignment of the Section 2B works.
[183]Mackenzie v Head, Transport for Victoria (Ruling) [2021] VSCA 24, [24].
[184]The Court Book below included the EES together with Technical Appendices A, B, C, and H. Those appendices comprised detailed mapbooks for the proposed alignments for Option 1 and Option 2 (Technical Appendix A), ‘Options Assessment Report’ dated February 2012 prepared by GHD Pty Ltd (Technical Appendix B), ‘Planning and Land Use Impact Assessment’ dated August 2012 prepared by GHD Pty Ltd (Technical Appendix C) and the EHP 2012 report described at [47] above, respectively.
We reject grounds 9 and 10.
Conclusion on the application for leave to appeal
We have rejected all of the grounds of appeal. Moreover, the grounds have been demonstrated to be without merit. There were no real prospects of success. We would refuse leave to appeal.
In those circumstances the applicants are entitled to no relief. It is therefore strictly unnecessary to determine the Notice of Contention which seeks to support the refusal of relief in any event, even if a ground of appeal had been made out. Nevertheless, for completeness, and in fairness to the parties, we turn to consider the Notice of Contention. We provide only a brief summary of our views.
Notice of Contention — Should relief be refused in any event?
By Notice of Contention dated 15 September 2020, VicRoads contended that, in the event that any of the applicants’ grounds were sustained, the declaratory relief sought was not available and/or should be refused on discretionary grounds by reason of lack of utility and delay:
1. In the event that any of the Applicants’ grounds relied on at trial and pursued on appeal were made out, the declaratory relief sought by the Applicants:
(a) is not available; and/or
(b) should be refused on either of two discretionary grounds:
i. there is no utility in granting the declaratory relief sought given the Applicants do not seek orders quashing any decision, nor any injunctive relief, the works have proceeded and, if no decision is quashed, there can be no foundation for declarations that it is unlawful for the First Respondent to complete works in accordance with a valid planning scheme;
ii. the Applicants delayed in bringing this proceeding, and seeking any declaratory relief arising from the Minister’s assessment in May 2013, in circumstances that the works have been substantially performed.
As a preliminary matter, it is important to observe that the approach to the Notice of Contention would vary considerably according to the precise form of the relief sought. VicRoads conceded that it would not resist the grant of the declaration sought by the applicants at para 3(e) of the orders in the amended application for leave to appeal, if the applicants had been successful in showing such an entitlement.
The relevant declaratory relief sought by the applicants, under para 3, is as follows:[185]
(a)A declaration that the 2013 [Ministerial assessment] was and is invalid, to the extent that the assessment applied to the Section 2B works;
(b)A declaration that the [Exemption decision] was and is invalid, to the extent that the assessment applied to the Section 2B works;
(c)A declaration that the [Adoption and Approval decision was] and is invalid, to the extent that the assessment applied to the Section 2B works;
(d)[withdrawn]
(e)A declaration that by reason of s 8C(1)(a) and s 8C(1)(b) of the EE Act, it is unlawful to proceed with the Section 2B works.
[185]Adopting the definitions in this judgment.
With respect to the availability of relief, VicRoads contends that the declaratory relief sought by the applicants was unavailable because the legal effect of the 2013 Ministerial assessment was already wholly ‘spent’ by the time of the trial. VicRoads also contends that the applicants are seeking to sever parts of the 2013 Ministerial assessment (which applied to the Stage 2 works as a whole) by challenging it only insofar as it applied to the Section 2B works.
At the hearing, it was not clear whether availability was pressed as an independent ground given the suggestion that the legal effect of the 2013 Ministerial assessment was ‘spent’ appeared to merge with a submission on utility. The severance argument was also not developed and VicRoads also did not establish how a challenge to the 2013 Ministerial assessment, insofar as it affected only the works outstanding, raised an issue of ‘severance.’
In any event, depending on the precise terms of any relief obtained, in our view there would be no obstacle based on ‘availability’ alone. Thus, the declarations sought at paras 3(a)–(c) of the orders sought were framed on the basis that the legal effect of the 2013 Ministerial assessment was not ‘spent,’ but rather ‘applied to’ the Section 2B works, and thereby somehow affected the Exemption decision as well as the Adoption and Approval decision. If the applicants had been successful in demonstrating that the 2013 Ministerial assessment had affected the Exemption and Adoption and Approval decisions (which they have not), the declaratory relief sought would have been available.
In terms of discretion more generally, it is well established that declaratory relief is discretionary.[186] Relevantly, a declaration may be refused where its grant would be futile,[187] or where a party has delayed in seeking relief.[188]
[186]Enfield (2000) 199 CLR 135, 146 [23]; [2000] HCA 5.
[187]See, eg, Sami v Roads Corporation [2008] VSC 377, [100]; Kuek v Wellens [2000] VSC 326, [120].
[188]See, eg, Falkingham v Peninsula Kingswood Country Golf Club Ltd [2015] VSCA 16, [76]–[78]; Re National Parks and Nature Conservation Authority; Ex parte McGregor [2001] WASCA 368, [165].
Insofar as delay is concerned, VicRoads submits that the declaratory relief ought to be refused because of the unexplained delay between the 2013 Ministerial assessment and the initiation of the proceeding in October 2016.[189] By that time, the Section 2A works had been completed, the tender process for the Section 2B works had been commenced, and vegetation and tree removal for the Section 2B works had also commenced.
[189]VicRoads accepts that delay is not a relevant basis to refuse the declaratory relief if the applicants had established that the Adoption and Approval decision was invalid on a basis that arose independently of the 2013 Ministerial assessment.
The applicants rely upon evidence given in the cross-examination of Mr Steven Pattinson. Mr Pattinson is an engineer who was employed by Major Roads Project Victoria as a senior project manager for the project. The applicants rely on Mr Pattinson’s evidence to submit that the delay was caused by VicRoads. In particular, the applicants contend that they had not been provided with the LOT Report until 2015 and had also been encouraged by VicRoads to engage in an extra-curial process from late 2015 leading up to early 2016. In any event, the applicants submit that the delay has not caused any prejudice to the respondents given the expiration of the Amendment C27 Incorporated Document by June 2015. They also submit that obtaining a declaration in respect of the application of the precautionary principle outweighs the question of a few months’ delay.
We are unlikely to have exercised our discretion to refuse relief on the basis of the delay alleged. While the 2013 Ministerial assessment took place in May 2013, the evidence suggests that the broader community was not informed of the LOT error until March 2015. Further, the official media release from VicRoads was not issued until November 2015. VicRoads had also been in discussion with the first applicant over the course of 2015 as to the alignment of the route and we accept that, in December 2015, VicRoads had encouraged the applicants not to commence legal proceedings, but rather to engage in an extra-curial process which continued until early in 2016.
When these matters are considered, any delay prior to the initiation of the proceeding in October 2016 would not be sufficient to justify a refusal of relief. This is particularly so given the lack of prejudice which any delay during that period would have caused the respondents, in circumstances where only limited works had taken place before proceedings were commenced (and where works completed after the expiry of the C27 Amendment were not authorised under a valid incorporated document).
With respect to the issue of utility, VicRoads submits that a declaration that the 2013 Ministerial assessment was invalid would have no practical effect or consequence, particularly given that the works are now governed by the C37 Amendment. It also submits that it is relevant that the Section 2A works have already been completed and delivered; that (as of 15 April 2019) approximately $157 million had been spent, or committed, in relation to the planning and implementation of the Section 2B works; and that extensive works had already taken place such that construction of 3.8 km of the total length of the area of 12.5 km covered by the Section 2B works had been completed. However, whether any such works would be wasted would necessarily depend on future decisions made by the Minister — which could not be the subject of submissions and would be wholly speculative.
The applicants submit that the courts make declarations confident that responsible citizens, bodies, corporations, governments and others will abide by them and not do anything contrary to them. It does not matter that the relief sought is not coercive. Decisions concerning such an important project in a sensitive environment must be based on a valid assessment. The applicants also submit that they are ‘very confident that a fresh assessment would lead to [their preferred alignment]’ and that none of the completed works would be wasted in achieving this route (although they later accepted that it was ‘speculation’ to comment on the Minister’s further decisions).
As we have indicated already, the ultimate consequence of any declaration would be highly dependent on the precise terms of the declaration. Given the way the relief sought was framed, we would be reluctant to express the view that a declaration would be futile. Certainly, we would also expect the respondents, as public authorities, to abide by any declaration that was made by the Court.[190]
[190]See Kuek v Wellens [2000] VSC 326, [120].
The more difficult issue is whether relief should be refused in circumstances where works have already progressed, at considerable public expense. Ultimately however, as identified by both parties, there is no evidentiary basis for us to assess how matters would proceed if the Minister were to reconsider his assessment. It is mere conjecture to contemplate what would eventuate if the Section 2B works did not proceed and whether any completed works would be wasted (or would need to be undone). The Court does not propose to engage in a hypothetical exercise on these issues, particularly where the issues raised by the Notice of Contention are not necessary to decide.
Conclusion
As we have already stated,[191] leave to appeal will be refused because none of the grounds of appeal had any real prospect of success.
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[191]See [222] above.
SCHEDULE OF PARTIES
MAIRIANNE MACKENZIE First applicant IONA MACKENZIE Second applicant KEEP THE ORIGINAL ROUTE SUPPORTERS INC Third applicant and HEAD, TRANSPORT FOR VICTORIA First respondent MINISTER FOR PLANNING Second respondent
20
15
0