Melton City Council v Minister for Planning

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0133

MELTON CITY COUNCIL	Applicant
v
MINISTER FOR PLANNING	Respondent

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JUDGES:	EMERTON P, NIALL and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2022
DATE OF JUDGMENT:	26 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 144
JUDGMENT APPEALED FROM:	[2021] VSC 700 (Richards J)

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ADMINISTRATIVE LAW – Minister’s reasons for exemption under s 20(4) of the Planning and Environment Act 1987 (Vic) referred to approval of environment management plan which was subsequently found to be not valid – Whether judge erred in failing to find error of law on face of the record, or alternatively, a jurisdictional error – Whether approval material to decision – Leave to appeal refused.

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Counsel
Applicant		Mr E Nekvapil with Ms C Mintz
Respondent:		Mr CJ Horan QC with Mr BC Chessell
Solicitors
Applicant:	Best Hooper Lawyers
Respondent:	Victorian Government Solicitor’s Office

EMERTON P
NIALL JA
OSBORN JA:

The West Gate Tunnel Project is a major infrastructure undertaking to the west of Melbourne (‘the project’). The excavation of the twin tunnels will produce vast quantities of spoil, some of which may contain contaminants. As part of the project, tenders were sought for the disposal of the spoil. Cleanaway Operations Pty Ltd (‘Cleanaway’) tendered on the basis that it would take the spoil to a treatment and storage site operated by it at the Melbourne Regional Landfill in Ravenhall (‘the proposal’), in the municipality of Melton, for which the applicant is the responsible local government authority (‘the Council’).
In order to operate the site for that purpose, it was necessary to meet two, independent, regulatory conditions, being planning approval and approval under the Environment Protection Act 1970 (‘the Environment Act’).[1] The two regimes were independent, in the sense that the relevant decisions were made by different decision makers, each applying different statutory criteria. In order for the proposal to be lawfully undertaken, both approvals were required and satisfying one regime did not mean that approval would follow under the other regime.
[1]At the times relevant to these proceedings, the Environment Protection Act 1970 was in force. On 1 July 2021, the Environment Act was repealed and replaced by the Environment Protection Act 2017. The references to the Environment Act are references to the former Environment Act.

Planning scheme approval

In order for the proposal to proceed from a planning perspective, it was necessary for the relevant planning scheme, the Melton Planning Scheme, to be amended. To that end, on 31 July 2020, Cleanaway requested the Minister for Planning (‘the Minister’) amend the Melton Planning Scheme to facilitate the use and development of part of the Melbourne Regional Landfill in Ravenhall as a spoil processing facility. The Minister subsequently prepared Amendment C222melt (‘Amendment’) which would, if approved, insert an incorporated document titled ‘Ravenhall Spoil Processing Facility, October 2020’ into the Melton Planning Scheme (‘Incorporated Document’).
Section 35 of the Planning and Environment Act 1987 (‘the Planning Act’) empowers the Minister to amend a planning scheme. Sections 17, 18 and 19 of the Planning Act set out certain requirements for the giving of notice of a proposed amendment to the planning scheme for the purpose of allowing participation in the process. Section 20(4) provides that the Minister may exempt himself or herself from any of the requirements of ss 17, 18 and 19 in respect of an amendment ‘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.’
On 19 November 2020, the Minister made two decisions under the Planning Act:
(a)a decision under s 20(4) to exempt himself from the requirements of ss 17, 18 and 19 in respect of the Amendment (‘Exemption Decision’); and
(b)a decision under s 35 to approve the Amendment (‘Approval Decision’).
Notice of the approval of the Amendment was published in the Government Gazette on 23 November 2020, as required by s 36(1) of the Planning Act.
The effect of these decisions was to give planning approval[2] for the use and development of the site as the Ravenhall Spoil Processing Facility, for the receipt, storage, treatment, handling, testing, analysis, containment, placement and removal off-site of spoil generated by the construction of the project. By reason of the Exemption Decision, the Minister was able to make the Approval Decision without first complying with the notice and public submission requirements of pt 3 of the Planning Act in respect of the Amendment.[3] Where the Minister is the planning authority, one consequence of an exemption under s 20(4) from the requirements of s 19 is that the Minister does not receive submissions about the proposed amendment, and need not refer them to a panel for consideration.
[2]Subject to the operation of s 38 of the Planning Act.
[3]Planning Act, ss 21–25.
The Minister gave written reasons for his decisions (‘Minister’s Reasons’).

The Environment Act decisions

The Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations2020 (‘the Regulations’) relevantly enable an occupier of scheduled premises to apply to the Environment Protection Authority (‘the EPA’) for approval of an environment management plan (‘EMP’) for those premises, as an alternative to the works approval and licence requirements of ss 19A and 20(1) of the Environment Act. The Regulations prescribe requirements for what must, to the satisfaction of the EPA, be included in an EMP in order for it to be approved by the EPA.
The Regulations were made on 30 June 2020, with the objective of providing a mechanism for the management and disposal of tunnel boring machine spoil to protect human health and the environment. Regulation 4 of the Regulations disapplies ss 19A and 20(1) of the Environment Act for ‘scheduled premises’ for which there is an approved EMP if: (a) the occupier submits an EMP for the premises to the EPA; and (b) the EPA approves that EMP.
Regulation 6 specifies in detail what must be included in an EMP before it can be approved by the EPA:
(1)An occupier of any premises may apply to the Authority for the approval of an environment management plan for those premises.
(2)An environment management plan must, to the satisfaction of the Authority, include the following—
(a) a description and map of the location of the premises at which tunnel boring machine spoil is to be received;
(b)a plan of the premises identifying the location of the processing area for the purposes of regulation 5(b) and the location of the containment system;
(c)a description of the physical characteristics of the premises and elements or segments of the environment adjacent to the premises;
(d) the existing and proposed uses of the premises and elements or segments of the environment adjacent to the premises;
(e)      a description of the activities to be undertaken at the premises;
(f) a description of the tunnel boring machine spoil to be received at the site;
(g) the specifications for containment of tunnel boring machine spoil at the premises;
(h) the methodology for determining if tunnel boring machine spoil meets the specifications for containment of tunnel boring machine spoil;
(i) an assessment of the risk of adverse impacts from the receipt, storage, treatment, reprocessing, containment, handling or discharge or deposit onto the premises of tunnel boring machine spoil (‘the Activities’) on any beneficial uses of the environment;
(j) management arrangements and operating conditions designed to minimise the risk of adverse impacts from the Activities on any beneficial uses of the environment;
(k)detailed designs and technical specifications of the processing area for the purposes of regulation 5(b) and the containment system at the premises, including features intended to minimise the risk of adverse impacts from the Activities on any beneficial uses of the environment;
(l)a construction quality assurance plan for the containment system at the premises;
(m)      requirements for leachate sampling and analysis;
(n) the specifications of the qualities and characteristics of leachate that is suitable for reuse and an identification of activities for which that leachate can be reused;
(o) details of the method to be used to measure and record the information required to be recorded and retained under regulation 5(p);
(p) a monitoring program to demonstrate compliance with the environment management plan;
(q) requirements for an environmental auditor to audit the risk of harm actually or potentially arising from the Activities at the frequency specified in the environment management plan;
(r) a pollution incident plan setting out how any pollution incident will be responded to;
(s) a report prepared by an environmental auditor assessing the suitability of the detailed designs, technical specifications, construction quality assurance plan, monitoring program and pollution incident plan in achieving the requirements and objectives of these Regulations;
(t)      how the environment management plan is to be reviewed.
…
Cleanaway engaged Senversa Pty Ltd (‘Senversa’) to prepare an EMP for a Soil Management and Reuse Facility at the Melbourne Regional Landfill for the purposes of the Regulations. On 31 July 2020, Senversa finalised the ‘Environment Management Plan – Soil Management and Reuse Facility for the West Gate Tunnel Project’ (‘the Senversa EMP’).
On about 23 September 2020, Cleanaway submitted the Senversa EMP to the EPA for its approval under the Regulations. On 12 October 2020, the EPA advised Cleanaway that it had approved the Senversa EMP. As things transpired, however, the EPA subsequently formed the view that its approval decision was affected by jurisdictional error because the Senversa EMP did not comply with the Regulations.
On 10 December 2020, the EPA wrote to Cleanaway to inform it that, in effect, the purported approval was affected by jurisdictional error because various requirements of the Regulations were not met. Those requirements were:
(a)no ‘detailed designs and technical specifications of … the containment system’ or ‘a construction quality assurance plan for the containment system’ were included in the Senversa EMP as required by regs 6(2)(k) and 6(2)(l);
(b)no monitoring program had been prepared as required by reg 6(2)(p);
(c)no site EMP or pollution incident response plan had been completed as required by reg 6(2)(r); and
(d)no auditor’s report on the suitability of various programs and plans (which had themselves not been prepared, such as the environmental monitoring program and pollution incident plan) had been prepared as required by reg 6(2)(s).
It was common ground, both at trial and in this Court, that the EPA’s purported approval of the Senversa EMP was affected by jurisdictional error by reason of these matters. It is not necessary to further consider that question.

The reasons of the Minister

As the above chronology reveals, at the time the Minister made his decisions, the Senversa EMP had been approved by the EPA. It was not until after his decisions that the legal flaws in the EPA approval were appreciated by the EPA and communicated to Cleanaway.
The Minister’s Reasons were reproduced in full in the reasons of the judge.[4]
[4]Melton City Council v Minister for Planning [2021] VSC 700 (‘Reasons’).
Under the heading, ‘What power of intervention is being used?’, the Minister said that he had ‘decided to exercise this power for two independent reasons: first, I consider that the interests of Victoria make such an exemption appropriate; and second, I consider that compliance with the requirements is not warranted.’[5]
[5]Minister’s Reasons, [6].
Under the heading ‘Background’, the Minister said as follows, with the two critical paragraphs highlighted:
…
9.The site for the facility comprises in part a licenced landfill and an operational quarry. Part of the site is proposed to be developed for the spoil processing and disposal facility. The balance of the site will continue to operate under existing approvals.
10.The site has been operating as a quarry since 1965 and as a landfill since 1997.
11.The Melbourne Regional Landfill is designated in the Statewide Waste and Resource Recovery Infrastructure Plan (2018) as a ‘waste hub of state importance’.
12.The Victorian Infrastructure Plan (2017) identifies the WGT^[[6]] project as a state-shaping infrastructure project that will have positive and long-term benefits for all Victorians. The WGT project will provide an alternative to the West Gate Bridge and direct access to the port, generating an $11 billion boost to the Victorian economy. It will contribute to significant improvements across the freeway network, improve freight efficiency and safety, and amenity within the road network and residential areas currently affected by truck traffic.
[6]West Gate Tunnel.
13.The use of the site for the facility finds strong support in relevant objectives of State policy including Plan Melbourne 2017-2050, Melbourne Industrial and Commercial Land Use Plan, Western Growth Corridor Plan, Statewide Waste and Resource Recovery Infrastructure Plan 2018 and also the policies and objectives of the Melton Planning Scheme.
14.Development of the WGT project requires spoil from construction of the project tunnels to be handled, stored, managed and disposed of in an appropriate manner and at a pace that can accommodate the volume of spoil material that will be generated by the machines used to construct the tunnels. For tunneling (sic) on the WGT project to commence, there must be one or more suitable facilities capable of receiving the spoil material in an appropriate manner and at the required rate.
15.The amendment proposes to facilitate the use and development of the Project Land as a facility capable of receiving, storing, handling, testing, analysing, treating and disposing of tunnel spoil from construction of the WGT project, and the reuse, containment or refuse disposal of spoil, or transfer to alternate facilities where necessary.
16.The Project Land is one of three sites that have tendered for contracts to receive WGT project spoil material. Contractual arrangements are expected to be finalised shortly with Cleanaway and/or other facilities when approved. The resolution of the contractual arrangements requires necessary planning approvals to be in place.
17.The controls in the amendment require the facility to be constructed and operated in accordance with the Incorporated Document, which includes conditions to regulate the use and development of the facility and to manage impacts of the facility including managing impact associated with vehicle movement, noise, dust and air quality management, and addressing waterway protection, traffic and vegetation management.
18.I am informed that Cleanaway has undertaken community consultation and engagement. Consultation was carried out on the proposal to establish the facility and the amendment proposal, including engagement with the Melton City Council and Brimbank City Council and the Melbourne Regional Landfill Community Reference Group.
19.In August 2020, I sought the views of Melton Shire Council on an earlier version of the proposed amendment under section 20(5) of the Act. Comments were received from Council on 21 September 2020. Revisions to the amendment documentation were made in response to the comments received from the Council.
20.The Department engaged in discussions with the Department of Transport/VicRoads in relation to the proposed amendment and in particular the conditions in the incorporated document that relate to traffic matters. The feedback provided by the Department of Transport/VicRoads has been taken into account.
21.On 12 October 2020 the Environment Protection Authority Victoria granted an approval under the Environment Protection Act 1970 and the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 of an Environment Management Plan that addresses the detailed environmental assessment of the spoil processing facility and the spoil disposal proposal to ensure the appropriate treatment and containment of the spoil as required by the Environment Protection Act 1970 and regulations to protect human health and the environment.
22.I have received correspondence from members of the community and key stakeholders including Brimbank City Council who have advised me of their opposition to the proposal.
23. In summary, issues raised include:
a.Disposal of spoil that is contaminated by per-and poly fluorinated alkyl substances (PFAS) and other materials;
b.Lack of consultation and inappropriate use of section 20(4) of the Act;
c.The amendment should involve full exhibition under section 19 of the Act so that council’s and the community have an opportunity to review and make a submission to the amendment;
d.Potential for the site to become a long term destination for Melbourne’s landfill needs and other potentially contaminated soil disposal needs associated with future infrastructure projects;
e.The potential long lasting, detrimental impact of the historic planning, land use and waste disposal decisions on local communities;
f.Proximity of established residential areas, industrial, commercial and growth areas.
g.Melbourne’s west has become the dumping ground for the State’s industrial, waste storage and transport needs;
h.Western communities have been disproportionality affected by soil contamination, pollution and impacts on the environment;
i.Testing and classification of PFAS levels should be undertaken prior to arriving at Ravenhall so that only non-prescribed waste is stored on-site;
j.Large number of truck movements, impacts on local roads and pollution from vehicles and potential spills;
k.Road and infrastructure damage by the large number of trucks;
l.The landfill is inconsistent with strategic planning for the West Growth Corridor and existing and proposed surrounding land uses;
m.Impacts on the amenity, health and safety of nearby communities;
n.Impacts on the capability and life span of the Melbourne Regional Landfill;
o.Inconsistency with the Melbourne Regional Landfill’s role as a waste and resource recovery hub;
p.Compliance issues with the existing Melbourne Regional Landfill facility;
q.Noise emissions, dust emissions and light emissions;
r.Technical reports not being available to the community.
24.I consider that the conditions imposed on the approval by the Incorporated Document and the Environmental Management Plan approved under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 will adequately address the concerns raised by submitters and the Councils, and will enable the proposed use and development to proceed in a way that is acceptable, and with the various effects able to be managed in an acceptable way, especially when considered in light of and balanced against the matters identified above and further below.[7]
[7]Ibid [9]–[24] (emphasis added).

The Minister then addressed various matters under the headings ‘Benefits of Exemption’ and ‘Effects of Exemption’. Under the former, he noted the main benefit of the exemption was the making of a prompt decision on the Amendment and that this would ‘mean the State significant benefits of the WGT project are able to be facilitated and realised sooner and the social and economic consequences associated with further delay in securing approvals for suitable sites for the processing of spoil can be avoided.’[8] As to the effects of the exemption, the Minister recorded that he had been informed that Cleanaway had undertaken ‘targeted third party consultation and engagement with Melton City Council and Brimbank City Council and key stakeholders and members of the community on an earlier version of the Amendment and the likely impacts of the activities proposed to be authorised by the Amendment.’[9] He noted that he had sought the views of the Council on an earlier form of the Amendment,[10] and that as the site was already being used as a landfill, this would limit the likely range of impacts and issues and that an exhibition process would be unlikely to identify any new issues.
[8]Ibid [29].
[9]Ibid [31].
[10]Ibid [32].
Under the heading ‘Reasons for Decision’, the Minister said:
37.I provide the following summary of the key reasons for my decision (which summary is not intended to detract from the detailed reasons set out above) to exercise my power under section 20(4) of the Act.
38.I am satisfied that –
Compliance with any of the requirements of sections 17, 18 and 19 of the Act and the regulations is not warranted because:
•The views of relevant third parties who may be materially affected by the Amendment are reasonably well known and have been considered during the preparation of the Amendment.
•Further notification and consultation would be unlikely to result in any substantive changes to the Amendment.
•The delivery of the WGT project will contribute to State significant improvements across the freeway network, improve freight efficiency and safety, as well as make significant amenity improvements within the road network and residential areas currently affected by truck traffic. The WGT project will also generate substantial economic activity and jobs for Victorians.
Relevantly:
○ The prompt adoption and approval of the Amendment will support the timely delivery of the facility, which will in turn, subject to contractual arrangements, reduce the ongoing delay to the delivery of the WGT project.
○ Exhibition of the Amendment, review of submissions and a panel hearing would result in further delay the delivery of the State significant benefits of the WGT project, which delay would undermine the possibility of the project furthering, or the extent that the project furthers, the interests of Victoria.
○ In light of the current and predicted economic environment arising from the impacts associated with COVID-19, facilitating the approvals required to ensure the commencement of the WGT Project in order to realise the State significant benefits of the WGT project are needed urgently, and more urgently than I expect would be possible in the event that the requirements in sections 17, 18 and 19 of the Act and the regulations were complied with.
The interests of Victoria or any part of Victoria make such an exemption appropriate because:
•The delivery of the WGT project will contribute to State significant improvements across the freeway network, improve freight efficiency and safety, as well as make significant amenity improvements within the road network and residential areas currently affected by truck traffic. The WGT project will also generate substantial economic activity and jobs for Victorians.
Relevantly:
○ The prompt adoption and approval of the Amendment will support the timely delivery of the facility, which will in turn, subject to contractual arrangements, reduce the ongoing delay to the delivery of the WGT project.
○ Exhibition of the Amendment, review of submissions and a panel hearing would result in further delay the delivery of the State significant benefits of the WGT project, which delay would undermine the possibility of the project furthering, or the extent that the project furthers, the interests of Victoria.
○ In light of the current and predicted economic environment arising from the impacts associated with COVID-19, facilitating the approvals required to ensure the commencement of the WGT project in order to realise the State significant benefits of the WGT project are needed urgently and more urgently than I expect would be possible in the event that the requirements in sections 17, 18 and 19 of the Act and the regulations were complied with.[11]
[11]Ibid [37]–[38].

The Incorporated Document

The Amendment inserted the Incorporated Document into the Melton Planning Scheme, to allow the development and use of the Ravenhall site for the receipt of spoil from the project. The introductory clauses of the Incorporated Document provide:
1.       INTRODUCTION
1.1 This document is an Incorporated Document in the Melton Planning Scheme (the Scheme) and is made pursuant to section 6(2)(j) of the Planning and Environment Act 1987 (the Act).
1.2 This Incorporated Document permits the use and development of the Project Land as the Ravenhall Spoil Processing Facility for the receipt, storage, treatment, handling, testing, analysis, containment, placement and removal off-site of spoil generated by the construction of the West Gate Tunnel Project, including associated use and development provided for in this Incorporated Document (the Project).
1.3 The control in Clause 4 prevails over any contrary or inconsistent provision in the Planning Scheme.
2.       PURPOSE
2.1 The purpose of the control in Clause 4 is to allow and facilitate the use and development of the land described in Clause 3 for the purposes of the Project, in accordance with the conditions specified in Clause 5.
3.       PROJECT LAND
3.1 The control in Clause 4 applies to land shown as SCO5 on the Scheme maps forming part of the Scheme (the Project Land).
Clauses 4 and 5 relevantly provide:
4. CONTROL
4.1 Despite any provision to the contrary, or any inconsistent provision in the Scheme, no planning permit is required for, and no provision in the Scheme operates to prohibit, restrict or regulate the use or development of the Project Land for the purposes of, or related to, constructing, maintaining or operating the Project in accordance with this Incorporated Document.
4.2 This Incorporated Document does not restrict or otherwise affect any use or development of the Project Land or any part of it for any purpose that is lawful under the Scheme, including any lawful pre-existing activities, other than the use or development of the Project Land for the purposes of the Project.
4.3 The use and development of the Project Land for the purposes of the Project includes the construction and operation of a facility for the receipt, storage, treatment, handling, testing, analysis, containment, placement and removal off-site of spoil generated by the construction of the West Gate Tunnel Project, including:
...
5. CONDITIONS
5.1 The use and development of the Project Land for the Project permitted by this document is subject to the following conditions:
...
Environmental Management Plan
5.1.2 Prior to the commencement of the use and development of the Project Land for the Project an Environmental Management Plan must be submitted to and approved by the Minister for Planning. The Environmental Management Plan must be generally in accordance with the Environment Management Plan and in particular the Operational Management Plan prepared by Senversa Pty Ltd titled Environment Management Plan - Spoil Management and Reuse Facility for the West Gate Tunnel Project, 227 Riding Boundary Road, part 304 Riding Boundary Road, part 714 and 1198 Christies Road, Ravenhall, part Christies Road and part Middle Road, Truganina dated 23 September 2020 but modified to include:
...
5.1.3 The use and development must be carried out generally in accordance with the approved Environmental Management Plan, except as otherwise agreed by the Environment Protection Authority, including by the approval of any different provision within any Environment Management Plan approved pursuant to the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020. To the extent of any inconsistency between those two Environmental Management Plans, the latter shall take precedence over the former.
…

The proceeding below

The Council commenced a proceeding by way of judicial review seeking to set aside the Exemption Decision and the Approval Decision. The Council submitted that the Minister’s Reasons contained an error of law on the face of the record, or alternatively, a jurisdictional error on the basis of the Minister’s reliance on the EPA approval, which was invalid.

The judge’s reasons

The judge rejected the Council’s case for two reasons.
First, the judge concluded that, in the context of two independent and complementary regulatory regimes, the Minister’s reference to the EPA approval was merely a statement of fact that did not attribute, nor rely on, the legal character of the EPA approval.[12] The judge said that the references to the approved Senversa EMP did not amount to a conclusion that certain facts ‘answer a statutory description or satisfy statutory criteria’.[13] For that reason, the Minister’s references to the Senversa EMP were, at the very most, a finding of fact that an EMP had been approved under the Regulations.
[12]Reasons, [59].
[13]Ibid (citations omitted).
In reaching that conclusion, the judge relied on the following passage from the reasons for judgment of Gageler J in New South Wales v Kable:
The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.[14]
[14](2013) 252 CLR 118, 138–9 [52]; [2013] HCA 26 (citations omitted) (‘Kable’).
The second reason for dismissing the proceeding was that, even if the Council succeeded in establishing the error of law for which it contended, the error was immaterial to the result. In that respect, the judge was not satisfied that there was a realistic possibility that the Exemption Decision could have been different had the Minister appreciated that the EPA’s approval was invalid.[15]
[15]Reasons, [66].
The judge dismissed the proceeding.

Proposed grounds and submissions in support

By its application for leave to appeal, the Council advances three proposed grounds, the effect of which is to contend that the judge erred in failing to find an error of law on the face of the record, or alternatively, a jurisdictional error.
In support of the proposed grounds, the Council commences with the uncontroversial proposition that the Minister’s Reasons form part of the record.[16] The Council then makes three points.
[16]Administrative Law Act1978, s 10.
First, it submits that on a proper reading of the Minister’s Reasons, it is apparent that the Minister determined that the Senversa EMP (in fact) was an EMP that (in law) both satisfied the Regulations and had been validly approved by the EPA under them. It relies in particular on paragraphs [21] and [24] of the Minister’s Reasons (set out in bold above at [19]). It submits that the Minister was satisfied that the potential detriments associated with the proposal were squarely met on the basis that the appropriate regulatory regime, established for that purpose, had been satisfied, and therefore there was no need to deal with these potential detriments again. In other words, it was the Minister’s satisfaction that the legal criteria under the EPA regime had been met that provided comfort on whether there should be further community participation in the process.
Second, the Council says the Senversa EMP was incapable of satisfying the Regulations.
Third, it says that because ‘the true and only reasonable conclusion’ — that the Senversa EMP could not satisfy the Regulations, or be approved under them — contradicted the Minister’s determination, the Minister made an error of law.[17]
[17]Relying on Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450–1 [24]–[25] (Gleeson CJ, Gummow and Callinan JJ); [2001] HCA 12 (‘Vetter’), quoting Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, 36 (Lord Radcliffe).
The Council submits that paragraphs [21] and [24] of the Minister’s Reasons cannot be characterised as findings of fact, devoid of any legal characterisation, on the basis that the Minister did not refer to the fact of approval but said it was an approval ‘under’ the Regulations.
On the question of materiality, the Council submits that an error of law on the face of the record does not need to be material to the underlying decision. Alternatively, it says the error was material because the issue is whether it could have resulted in a different decision. It says that the fact that the references to the Senversa EMP are to be found in the ‘Background’ section of the Minister’s Reasons does not matter. It says also that the Incorporated Document, which reflects the Approval Decision, refers to the approval of the Senversa EMP and that the erroneous understanding of the legal efficacy of the Senversa EMP cannot be quarantined.
Finally, the Council submits that the Minister’s satisfaction as to the matters in s 20(4) of the Planning Act is a jurisdictional fact. It says that the Minister will have committed a jurisdictional error if, as here, his conclusion was affected by some mistake of law, or his state of mind was unreasonable, illogical, irrational, or not supported by probative evidence.

Discussion

The central question raised by the appeal is whether the Exemption Decision, and by extension the Approval Decision, were predicated upon the Minister’s belief in the lawfulness (and validity) of the EPA’s approval of the Senversa EMP.
In the context of administrative decision making, the Council correctly recognises that there is a distinction between, on the one hand, reference by a decision maker in a set of reasons to the fact that another decision has been made and, on the other hand, a decision that depends on or is based on the lawfulness or legality of the other decision. In the case of the latter, it may be possible to draw a further conceptual distinction. In some cases, the making of decision ‘A’ or the occurrence of particular conduct will be a condition for making decision ‘B’, such that a legal error in relation to the former will undermine the lawfulness of the second or ultimate decision. Such reasoning is reflected in the concepts of jurisdictional error and jurisdictional fact. It may also be accepted that, although not bound to do so, a decision maker may form an opinion as to whether a decision or conduct by a different decision maker satisfies the legal conditions for its making. The Council submits that the Minister engaged in such reasoning in relation to the Senversa EMP approval. Given the undisputed finding that the Senversa EMP was invalid, the Council argues that the Minister’s Reasons reveal an error of law on the face of the record.
On the other hand, examples of the first category, where the reference is simply to the fact of another decision having been made, are commonplace. In a heavily regulated world, any number of decisions might in one context give rise to a legal question, but in another context, merely have factual significance, and a reference to them entails no more than a statement of fact. For example, a reference in a set of reasons to an office holder, such as a police officer, having undertaken some task does not necessarily carry with it any connotation that the officer had been lawfully appointed to his or her office, but may simply form part of the narrative.
The judge held that the Minister’s references to the EMP approval was an example of the first category, that is, a mere reference to another decision that had been made. To put it another way, the judge found that the references to the Senversa EMP in the Minister’s Reasons recorded his understanding that the EPA had assessed the Senversa EMP and expressed satisfaction that it met the relevant requirements. It did not constitute his own assessment of whether the EPA was properly satisfied, pursuant to reg 6(2) of the Regulations, that the Senversa EMP complied with the Regulations.
We note that the Council did not submit, either at first instance or in this Court, that there was no proper basis for the Minister to make that factual finding. For the reasons that follow, the judge was correct in her characterisation of the relevant part of the Minister’s Reasons.
As the Council recognised, both in its written case and in oral argument, the starting point for its argument is a contention that the Minister drew an erroneous legal conclusion that the Senversa EMP was valid and made his decisions on that basis. However, as these reasons will show, the Council cannot make good that premise and therefore its argument as to legal error must fail.
In understanding the Minister’s Reasons, it is important to understand the context in which the Exemption Decision and the Approval Decision were made. The Minister had statutory power to make an amendment to the planning scheme subject to complying with various procedural requirements, some of which he could dispense with. By contrast, the Minister had no legal decision making authority in relation to the approval of the Senversa EMP. In deciding whether or not to exercise his own powers to exempt himself from the procedural requirements found in ss 17, 18 and 19 of the Planning Act and in making the Approval Decision, the existence of an approved EMP was legally irrelevant. For example, it would have been open to make the planning decision before the EPA had made any decision under the Environment Act or the Regulations. Thus, the existence of a validly approved EMP was not a condition on either of the statutory powers exercised by the Minister and was not a relevant consideration, in the Peko-Wallsend sense,[18] that the Minister was bound to take into account.
[18]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.
The Council seeks to overcome the absence of a statutory link between the two regimes by arguing that the existence of such a link might be relevant to the question whether the Minister had committed a jurisdictional error, but it is not relevant to a ground based on error of law on the face of the record. On the Council’s case, any error of law that appears on the record, regardless of its legal association with the planning decision, is sufficient for its purposes. To that end, the Council refers to the judgment in R v Northumberland Compensation Appeal Tribunal; ex parte Shaw[19] as authority for the proposition that certiorari is available for errors of law on the face of the record even though they do not go to jurisdiction.[20]
[19][1952] 1 KB 338; [1951] EWCA Civ 1.
[20]Ibid 342 (Singleton LJ), 348 (Denning LJ).

So much may be accepted,[21] but the grant of relief in the nature of certiorari remains discretionary.[22] It would ordinarily be difficult to justify the quashing of an administrative decision on the basis that the reasons given for it contain an incidental error of law which could not sensibly be said to affect the decision maker’s conclusion.
[21]See the discussion of the history of the remedy in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, 23–31 [61]–[78] (Gageler J); 36–40 [91]–[97] (Edelman J); [2018] HCA 4.
[22]Ibid 41–2 [101] (Edelman J).
Moreover, the different statutory contexts supplied by the Planning Act and the Regulations remain relevant to an understanding as to how the Minister’s Reasons should be read and whether any error that might be embedded in the Minister’s Reasons is a legal or factual error. The Council readily accepted that the Minister could have referred to the fact of an approval under the Regulations and, had he done so, there would have been no legal error even if the EPA approval was found to be beyond power. That being so, it is necessary to understand what the Minister’s Reasons convey. In our opinion, the statutory context is an important factor in the correct understanding of the Minister’s Reasons. The existence of two parallel regulatory regimes and the distinct decision making authority of the relevant entities made it considerably less likely that the Minister strayed into the legal territory of the EPA.
This has both a conceptual and practical dimension. As to the first, the Minister had responsibility and accountability for the administration of the Planning Act but not the Environment Act. The Environment Act established the EPA,[23] which has the statutory powers and objects given by its enabling legislation. The Minister does not have responsibility for that agency. More prosaically, it is inevitable that large infrastructure projects, such as the West Gate Tunnel, will be subject to many different regulatory regimes (covering matters such as water, environmental protection, road construction, traffic management, indigenous heritage and many others). It is inevitable that decision makers will be aware of and may refer to other decision making processes that are relevant to the particular project. It would be impractical and impossible for each decision maker to assess the compliance by the relevant decision makers with each regulatory regime that might apply. Of course, some areas may overlap and the demarcation may be less than clear. That is the case here, where environmental impacts have some relevance under both the Planning Act and the Environment Act. Nevertheless, an inference that one decision maker has assessed the lawfulness of the conduct of another is not one that can be drawn lightly. If there is legal error in the decision of the EPA to approve an EMP, then the focus of any legal attack ought naturally be on that decision rather than on other independent decisions that may refer to it.
[23]Environment Act, s 5(1). The Environment Protection Act 2017 continues the EPA as established under s 5(1) of the Environment Act. See s 356 of the Environment Protection Act 2017.
It is important to emphasise that this does not involve immunising the EPA’s approval from judicial scrutiny. As already noted, satisfaction of the EPA requirements was a necessary precondition for the proposal and the availability of judicial review of the EPA decision serves to keep it within lawful bounds. And, at least on the basis of an error of law on the face of the record, the Council does not contend that the EPA’s error had any legal significance to the power of the Minister to make his decisions.
Next, neither of the two paragraphs in the Minister’s Reasons relied on by the Council support its submission. The first paragraph relied on — paragraph [21] — is preceded by three paragraphs and followed by a further paragraph, each of which is concerned with consultation and engagement with relevant entities: the community,[24] the Council,[25] the Department of Transport and VicRoads,[26] and members of the community and key stakeholders who were opposed to the proposal.[27] By its terms, paragraph [21] records that an approval had been given under the Environment Act and the Regulations and that it addressed the environmental assessment of the spoil processing facility and the spoil disposal proposal to ensure the appropriate treatment and containment of the spoil as required by the Act and the Regulations.
[24]Minister’s Reasons, [18].
[25]Ibid [18]–[19].
[26]Ibid [20].
[27]Ibid [22].
What follows in the next paragraph[28] is a catalogue of the concerns that had been raised through this process. The fact that concerns had been raised and considered was plainly relevant to what the Minister was required to consider in making the Exemption Decision, because whether there had been consultation, participation and engagement in the process to that point in time might make the statutory process for public submissions in ss 21 to 25 of the Planning Act unnecessary or inappropriate when weighed against the benefits of a timely approval. There is nothing in paragraph [21], especially when read in its surrounding context, that provides any reason for thinking that the Minister turned his mind to whether the Senversa EMP met the statutory requirements under which it was made. There was no reason for the Minister to do so.
[28]Ibid [23].
The position is even clearer in paragraph [24], where the Minister says that the conditions imposed by the Incorporated Document and the Senversa EMP will adequately address the concerns raised by submitters and the Council. Fairly read, that is saying no more than that a structure is, or will be in place that, when satisfied, will meet the environmental concerns that have been raised.
Moreover, it is apparent that the principal concern of the Minister on the Exemption Decision was whether he should dispense with the need for a further consultation process before considering whether or not to approve the Amendment. As the judge correctly observed, the impugned paragraphs on which the applicant’s argument depends are under the heading ‘Background’. Under the heading ‘Reasons for Decision’, the Minister summarised his key reasons for exercising the s 20(4) power, namely, that the views of third parties were already reasonably well known, further participation would be unlikely to result in any substantive changes to the Amendment and the delivery of the project in a timely way would benefit the State, requiring a prompt decision. Those reasons did not depend on satisfaction of the EPA regulatory regime, which was an independent legal requirement that subsisted regardless of any decision the Minister might make.
The Council places some emphasis on the fact that the Minister referred to the approval as being made ‘under’ the Environment Act and the Regulations and so, it was argued, this naturally meant that it had legal effect under those laws. In our view, the Council reads too much into the word ‘under’. In a statute, the description of a decision being made ‘under’ a particular Act may carry with it that the decision is authorised by, and has legal effect from, that law.[29] Equally, however, when used in other contexts, the word ‘under’ may do no more that identify the provenance of a decision without any assertion as to its validity or the extent to which it satisfies any legal criteria that the enabling law may impose. In the present context, the word ‘under’ was simply a means of identifying the relevant decision and did not carry with it a warranty that the decision was legally compliant.
[29]Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 505–6 [75]–[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); [2003] HCA 2.
When properly understood, the impugned paragraphs do no more than record as a fact that an approval had been given by the EPA, and that as part of that process, issues of concern had been identified. That fact did not depend on the legal efficacy of the approval. It may be accepted that the Minister assumed that the EPA process had been complied with, or that it would be complied with, before using the proposed site to process and store the spoil, but that was a factual and not a legal assumption.
That construction is reinforced by the terms of the Incorporated Document, which required the Minister to approve an EMP. It was contemplated that for an EMP to be approved by the Minister, it would be substantially in the form of the EMP that had purportedly been approved by the EPA or one later agreed to by the EPA. That condition is relevant for present purposes because it shows that an EMP was required by the Minister independently of the EPA process. That is inconsistent with the Council’s submission that the Minister’s reasoning was based on a valid EMP already being in place as a legally efficacious fixed point of reference.
Finally, something should be said about the Council’s reliance on the decision of the High Court in Vetter. That case was one in a long line of cases concerning the question whether a finding that a set of facts falls within a statutory phrase involves a question of fact or a question of law.[30] That question usually arises where an appeal is limited to questions of law. The principles have no relevance here. The Minister was not required by the Planning Act to ask himself whether the document called the EMP was an EMP for the purpose of the Planning Act or any other Act. It may be accepted that the Senversa EMP was not an EMP under the Regulations, but the question is not its legal status but how it was treated by the Minister: as something in fact or something in law. As the judge observed, ‘[n]one of these distinctions detract from the logic of the proposition that “undeniably void acts may have legal consequences”, including where “the factual existence of a void act may serve as the basis for other decisions”.’[31] We accept the respondent’s submission that the EPA’s decision was a ‘thing in fact’ at the time of the Exemption Decision (albeit a thing that was subsequently determined to be ultra vires), and was capable of being taken into account as such by the Minister when making his decision under the Planning Act.
[30]Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 138 (Jordan CJ); Hope v Bathurst City Council (1980) 144 CLR 1, 8 (Mason J); [1980] HCA 16.
[31]Reasons, [64]; Kable (2013) 252 CLR 118, 138–9 [52] (Gageler J); [2013] HCA 26; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19, [20] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ).
It follows that the premise for the proposed grounds has not been established. It must also follow that there was no jurisdictional error.

Materiality

Since the Council has failed to establish an error of law on the face of the record, the issue of materiality does not arise. It is convenient, however, to state our conclusions on the matter.
Whether considered as an element of the ground of review or as a matter of discretion to refuse relief, we consider that no relief should issue because if there was a legal error it was not material to the decision. That is, there is no realistic possibility that the Minister would have made a different decision. Our reasons largely echo those given by the judge which, with respect, were plainly correct.
First, as already observed, the impugned paragraphs in the Minister’s Reasons appear under the heading ‘Background’. There is no reference to the Senversa EMP in the ‘Reasons for Decision’ section and there is no basis for concluding that the approval of the Senversa EMP influenced the decision on the two statutory questions the Minister had to consider under s 20(4) of the Planning Act.
Second, the two regulatory regimes were complementary but distinct. The proponent had to obtain either a works approval under the Environment Act or an approved EMP before the proposal could proceed. The EPA had statutory responsibility and it is an expert body. As the judge said, it is unremarkable — and, indeed, consistent with general principle — for a planning authority to leave it to the EPA to specify appropriate environmental protection controls for a proposed waste facility.[32]
[32]Reasons, [69].
Third, and relatedly, the Incorporated Document makes it plain that the Minister contemplated that changes might be made to the Senversa EMP. The conditions provide an additional safeguard that ensures that a satisfactory EMP would be in place before works commenced. There was no reason therefore for the Minister to refuse the planning amendment pending completion of the EMP process. It is also relevant that the Minister emphasised the need for a prompt decision, which would tell strongly against any delay in finalising the planning decision.
Any error was entirely incidental and not material to the decision. As the judge correctly found, making good the error would not have entitled the Council to any relief.

Conclusion

Leave to appeal should be refused.
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[2022] VSCA 144

26 July 2022