Mackenzie v Head, Transport for Victoria - [2020] VSC 328

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S CI 2016 04272

MAIRIANNE MACKENZIE, IONA MACKENZIE and KEEP THE ORIGINAL ROUTE SUPPORTERS INC	Plaintiffs
v
HEAD, TRANSPORT FOR VICTORIA	First Defendant
and
MINISTER FOR PLANNING	Third Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	23–25 March 2020
DATE OF JUDGMENT:	4 June 2020
CASE MAY BE CITED AS:	Mackenzie v Head, Transport for Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 328

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ADMINISTRATIVE LAW — Judicial review — Minister’s assessment of environmental effects of Stage 2 of Western Highway duplication project — Application of Environment Effects Act 1978 (Vic) — Validity of Minister’s assessment — Admissibility of opinion evidence not before Minister — Whether Minister failed to exercise jurisdiction — Whether Minister failed to take into account mandatory considerations or took irrelevant considerations into account — Whether Minister failed to inquire — Whether Minister’s assessment legally unreasonable — Assessment valid — Environment Effects Act 1978 (Vic), ss 8, 8B, 8C.

ADMINISTRATIVE LAW — Judicial review — Amendment to planning scheme — Minister’s decision to exempt himself from statutory notice requirements — Minister’s decision to adopt and approve amendment — Whether Minister relied on assessment under Environment Effects Act 1978 (Vic) — Whether exemption decision legally unreasonable — Whether adoption and approval invalid for failure take into account significant effects of amendment on environment — Planning and Environment Act 1987 (Vic), ss 12(2), 20(4), 29, 35.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr DRJ O’Brien	Michael I Kennedy & Associates
For the First Defendant	Mr CM Caleo QC, Mr S Goubran and Mr T Barry	Minter Ellison
For the Third Defendant	Mr DJ Batt QC and Ms ECV Porter	Matthew Hocking, Acting Victorian Government Solicitor

TABLE OF CONTENTS

MINISTER’S ASSESSMENT.......................................................................................................... 8

Are the Section 2B works ‘works’ to which the EE Act applies?........................................... 8
Effect of s 8C(1)(a) of the EE Act on Section 2B works.......................................................... 20
Effect of s 8C(1)(b) of the EE Act on the Minister’s decisions............................................... 22
Admissibility of evidence.......................................................................................................... 23
Was the Minister’s Assessment invalid?................................................................................. 29
......... Constructive failure to exercise jurisdiction........................................................................ 33
......... Relevant or irrelevant considerations................................................................................... 47
Failure to inquire.................................................................................................................. 48
Unreasonableness or irrationality........................................................................................ 49

EXEMPTION, ADOPTION AND APPROVAL DECISIONS................................................. 52

Grounds for judicial review of Minister’s approval of Amendment C37.......................... 53
Did the Minister rely upon the Minister’s Assessment?....................................................... 56
Was the Exemption Decision legally unreasonable?............................................................. 66
Was the Adoption and Approval invalid for failure to consider environmental effects? 79
Disposition................................................................................................................................... 84

HER HONOUR:

In 2010, the Roads Corporation (VicRoads)[1] proposed duplicating the Western Highway between Beaufort and Ararat, as Stage 2 of a larger project to duplicate the highway between Ballarat and Stawell. Recognising that the Stage 2 project could have a significant effect on the environment, VicRoads sought the advice of the Minister for Planning, under s 8 of the Environment Effects Act 1978 (Vic) (EE Act), as to whether an…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] VSC 328
Decision Date: 4 June 2020

CaseChat Overview and Summary

In the matter of Mackenzie v Head, Transport for Victoria, the Victorian Court of Appeal considered the validity of the Minister for Planning’s assessment of the environmental effects of Stage 2 of the Western Highway duplication project. The court also reviewed the Minister’s decision to exempt himself from statutory notice requirements and to adopt and approve an amendment to the planning scheme. The applicants, including Mackenzie, challenged the Minister's assessment under the Environment Effects Act 1978 (Vic) and the Planning and Environment Act 1987 (Vic), claiming that the Minister failed to properly consider relevant environmental effects and statutory requirements.

The court had to determine whether the Minister's assessment of the environmental effects was legally sound, considering whether the Minister exercised jurisdiction, took into account mandatory considerations, and avoided irrelevant considerations. Additionally, the court examined whether the Minister's decision to exempt himself from statutory notice requirements and to adopt and approve the amendment to the planning scheme was legally reasonable and if it failed to consider significant environmental effects. The applicants argued that the Minister's reliance on the flawed assessment rendered his decisions invalid.

The court held that the Minister's assessment of the environmental effects was valid, despite the inclusion of opinion evidence not before the Minister, as it did not render the assessment legally unreasonable. The court further found that the Minister's exemption decision and the adoption and approval of the amendment to the planning scheme were not legally unreasonable. The court concluded that the Minister's decisions did not fail to take into account significant environmental effects or any mandatory considerations. The applicants' claims for judicial review were dismissed.

The court ultimately determined that the Minister's assessment and decisions were valid and legally sound, and no orders were made in favour of the applicants. The Minister's actions were upheld, and the applicants' appeal was dismissed.

Orders