Melton City Council v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2021 00267

MELTON CITY COUNCIL	Plaintiff
v
MINISTER FOR PLANNING	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	14–16 July 2021
DATE OF JUDGMENT:	28 October 2021
CASE MAY BE CITED AS:	Melton City Council v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2021] VSC 700

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ADMINISTRATIVE LAW – Judicial review – Amendment to Melton Planning Scheme to facilitate use and development of site to receive tunnel spoil from construction of West Gate Tunnel – Minister’s decision under s 20(4) of the Planning and Environment Act 1987 (Vic) to exempt himself from statutory notice requirements – Minister’s Reasons for exemption decision referred to EPA’s approval of environment management plan (EMP) for site – EPA subsequently acknowledged approval of EMP not valid – Whether reference to EPA’s approval of EMP involved an error of law – Reference to EPA approval a finding of fact open on the material before the Minister – Whether approval material to decision – No error of law – Exemption decision not affected by jurisdictional error – Planning and Environment Act 1987 (Vic) ss 17, 18, 19, 20(4) – Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic), regs 4, 6.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr E Nekvapil with Ms C Mintz	Best Hooper Lawyers
For the defendant	Mr CJ Horan QC with Mr BC Chessell	Matthew Hocking, Victorian Government Solicitor

TABLE OF CONTENTS

Planning Act.................................................................................................................................. 2
Environment Protection Act and Spoil Management Regulations........................................ 4
Minister’s Reasons........................................................................................................................ 8
Incorporated Document............................................................................................................. 17
Invalid approval of Environment Management Plan............................................................ 19
The Council’s submissions........................................................................................................ 23
The Minister’s submissions....................................................................................................... 26
Consideration.............................................................................................................................. 28
Materiality........................................................................................................................... 32

Disposition................................................................................................................................... 35

HER HONOUR:

On 31 July 2020, Cleanaway Operations Pty Ltd requested the Minister for Planning to 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 associated with the West Gate Tunnel project. The Ravenhall site, located in the outer western suburbs of Melbourne, was one of three that were in contention to receive tunnel spoil from the construction of the West Gate Tunnel. The Minister subsequently prepared Amendment C222melt which would, if approved, insert an Incorporated Document titled ‘Ravenhall Spoil Processing Facility, October 2020’ into the Melton Planning Scheme.

On 19 November 2020, the Minister for Planning made two decisions under the Planning and Environment Act 1987 (Vic) (Planning Act):

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

In this proceeding, Melton City Council seeks judicial review of the Minister’s decisions of 19 November 2020. It seeks an order in the nature of certiorari, quashing the Exemption Decision and the Approval Decision and, for good measure, the gazettal of the Amendment.

The Council contends that the Exemption Decision involved an error of law on the face of the record, or alternatively a jurisdictional error, because the Minister wrongly believed that the Environment Protection Authority (EPA) had approved an environment management plan (EMP) for the Ravenhall site under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic) (Spoil Management Regulations). While the EPA professed to approve the EMP on 12 October 2020, it subsequently advised Cleanaway that its approval of the EMP was affected by jurisdictional error, and hence invalid. The Council says that, because the Exemption Decision is unsound, the Approval Decision and the gazettal of the Amendment are consequentially invalid.

I have concluded that the Exemption Decision was not affected by jurisdictional error or by error of law on the face of the record, and that the Amendment is valid. The Minister’s reference to the EPA’s approval of the EMP under the Spoil Management Regulations was, at its highest, a finding of fact that was open on the material before him. While the Minister was mistaken, because the approval was not valid, his mistake did not involve an error of law. In addition, I was not persuaded that the mistake was material to the Minister’s decision. The proceeding must therefore be dismissed.

My reasons for those conclusions follow.

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’.[1] Section 4(1) sets out the objectives of planning in Victoria, and s 4(2) sets out the objectives of the planning framework established by the Planning Act.
[1]Planning and Environment Act 1987 (Vic) (Planning Act), s 1.

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

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

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

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

Where notice of an amendment is given under s 19, any person may make a submission about the amendment to the planning authority.[3] The planning authority is obliged to consider all submissions made by the date set out in the notice.[4] In the case of an amendment prepared by the Minister, submissions are referred to a panel appointed under Part 8 of the Planning Act, for its consideration, hearing, and report.[5] 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.
[3]Planning Act, s 21(1).
[4]Planning Act, s 22(1).
[5]Planning Act, ss 23-25.

Section 29 provides that, after complying with the notice and public submission requirements of Pt 3, Divs 1 and 2, the planning authority may adopt the amendment with or without changes.

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

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

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

An amendment to a planning scheme comes into effect following the publication of a notice of approval in the Government Gazette.[6]
[6]Planning Act, ss 36-37.

Environment Protection Act and Spoil Management Regulations

At the times relevant to these proceedings, the Environment Protection Act 1970 (Vic) (Environment Act) was in force. On 1 July 2021, the Environment Act was repealed and replaced by the Environment Protection Act 2017 (Vic). The references to the Environment Act in this judgment are references to the former Environment Act, which was still in force when the Minister made his decisions on 19 November 2020.

Section 1A of the Environment Act provided as follows.

(1)The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.
(2)The principles of environment protection are set out in sections 1B to 1L.
(3)It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.

The overarching principles of environment protection were set out in ss 1B to 1L of the Environment Act. They included, amongst other matters, the principle of integrated decision-making,[7] the precautionary principle,[8] and the principle of shared responsibility.[9]
[7]Environment Protection Act 1970 (Vic) (Environment Act), s 1B.
[8]Environment Act, s 1C.
[9]Environment Act, s 1G.

Section 4(1) of the Environment Act defined ‘scheduled premises’ to mean any premises:

(a) prescribed by regulation; or
(b) which is of a class prescribed by regulation as premises at or from which—
(i) waste is, or is likely to be, discharged, emitted or deposited to the environment; or
(ii) noise is, or is likely to be, emitted; or
(iii) waste is, or substances which are a danger or potential danger to the quality of the environment or any segment of the environment are, reprocessed, treated, stored, contained, disposed of or handled; or
(iv) any activity is conducted which creates a state of potential danger to the quality of the environment or any segment of the environment;

Before their repeal on 1 July 2021, the Environment Protection (Scheduled Premises) Regulations 2017 (Vic) provided that, for the purposes of the definition of ‘scheduled premises’ in s 4(1) of the Environment Act, various premises used for the treatment and disposal of waste were ‘scheduled premises’. It was common ground that the proposed spoil processing facility at Ravenhall fell within the definition of ‘scheduled premises’.

Section 19A of the Environment Act required ‘scheduled premises’ to be conducted in accordance with a works approval or licence. Section 19A(1) provided:

The occupier of a scheduled premises must not do any act or thing, including the commencement of any construction, installation or modification of plant, equipment or process or any subsequent step in relation thereto, which is likely to cause—
(a)an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises; or
(b)an increase or alteration in the waste which is, or substances which are a danger or potential danger to the quality of the environment or any segment of the environment which are, reprocessed, treated, stored, contained, disposed of or handled, at the premises; or
(c)a change in any method or equipment used at the premises for the reprocessing, treatment, storage, containment, disposal or handling of waste, or of substances which are a danger or potential danger to the quality of the environment or any segment of the environment; or
(d)a significant increase in the emission of noise; or
(e)a state of potential danger to the quality of the environment or any segment of the environment—

except in accordance with a works approval or a licence or a requirement specified in a notice given by the Authority as the case may be unless the act or thing is only in the course of and for the purpose of general maintenance.

Section 20(1) of the Environment Act provided for the licensing of ‘scheduled premises’, as follows:

The occupier of a scheduled premises must not undertake at those premises—
(a)the discharge, emission or deposit of waste to the environment; or
(b)the reprocessing, treatment, storage, containment, disposal or handling of waste; or
(c)the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or potential danger to the quality of the environment or any segment of the environment; or
(d)an activity which creates a state of potential danger to the quality of the environment or any segment of the environment—

unless licensed to do so under this Act.

The Spoil Management 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.[10] The mechanism was designed as an alternative to the general requirements of ss 19A and 20(1) of the Environment Act.
[10]Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic) (Spoil Management Regulations), reg 1(a).

Regulation 4 of the Spoil Management Regulations disapplies ss 19A and 20(1) of the Environment Act for ‘scheduled premises’ for which there is an approved environment management plan:

(1)Sections 19A and 20(1) of the Act do not apply to the occupier of a scheduled premises in respect of the receipt, storage, treatment, reprocessing, containment, handling or discharge or deposit onto land of tunnel boring machine spoil if—
(a)the occupier submits an environment management plan for the premises to the Authority; and
(b)the Authority approves that environment management plan.

(2)Section 27A(2) of the Act does not apply to a person who deposits or permits to be deposited tunnel boring machine spoil at premises for which the occupier holds an environment management plan approved by the Authority.

Regulation 6 specifies in detail what must be included in an environment management plan 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.

Minister’s Reasons

The Exemption Decision was the subject of a detailed brief to the Minister prepared by officers of the Department of Environment, Land, Water and Planning (DELWP). The brief was recommended on 5 November 2020 by Dr Jane Homewood, Executive Director, Statutory Planning Services. There were a number of attachments to the brief, including the EMP that the EPA had ‘approved’ on 12 October 2020, an explanatory report, and the proposed Incorporated Document. The brief recommended that the Minister make the Exemption Decision and approve the Amendment.

The Minister approved the brief on 19 November 2020, including by signing written reasons for making the Exemption Decision. The Minister’s Reasons are central to the Council’s challenge to the Exemption Decision, and it is useful to set them out in full:

REASONS FOR DECISION TO EXERCISE POWER OF INTERVENTION
UNDER SECTION 20(4) OF THE PLANNING AND ENVIRONMENT ACT 1987
MELTON PLANNING SCHEME AMENDMENT C222melt
The Planning and Environment Act 1987 (the Act), the Heritage Act 2017 and the Victorian Civil and Administrative Tribunal Act 1998 provide for the intervention of the Minister for Planning in planning and heritage processes.

In exercising my powers of intervention, I have agreed to:
•Make publicly available written reasons for each decision; and
•Provide a report to Parliament at least every twelve months detailing the nature of each intervention.

REQUEST FOR INTERVENTION
1.A request for intervention has been made by Cleanaway Operations Pty Ltd (Cleanaway) to facilitate the use and development of land for the Ravenhall Spoil Processing Facility a spoil processing and disposal facility (facility) for spoil generated from construction of the twin tunnels as part of the West Gate Tunnel project (WGT project).
2.The facility is proposed to be located at 227 Riding Boundary Rd, part 304 Riding Boundary Rd, part 714 and 1198 Christies Rd, Ravenhall, part Christies Road, Ravenhall and part Middle Road, Truganina being the land comprising the following parcels:
•Crown Allotments 3, 4 and 6, Section 15 Parish of Derrimut (Volume 8697 Folio 969)
•Crown Allotment 1A, Section 14 Parish of Derrimut (Volume 9921 Folio 047)
•Crown Allotment 5, Section 14 Parish of Derrimut (Volume 7807 Folio 022)
•Lot S2, PS723362 (Volume 11910 Folio 274)
•Lot S3, PS723362 (Volume 11910 Folio 275)

WHAT POWER OF INTERVENTION IS BEING USED?
3.I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect to Amendment C222melt to the Melton Planning Scheme.
4.Section 20(4) of the Act enables the Minister for Planning to exempt an Amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations.
5.In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider 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.
6.I have 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.

BACKGROUND
7.The Amendment proposes to apply the Specific Controls Overlay to the Project Land being part of Melbourne Region Landfill and adjoining land in Middle Road known as 227 Riding Boundary Rd, part 304 Riding Boundary Rd, part 714 and 1198 Christies Rd, Ravenhall, part Christies Road, Ravenhall and part Middle Road, Truganina (the site).
8.The Amendment inserts an Incorporated Document, the Ravenhall Spoil Processing Facility, October 2020 (the Incorporated Document) in the Schedule to Clause 45.12 (Specific Controls Overlay) and in Clause 72.04 (Documents Incorporated into the Melton Planning Scheme).
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 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.
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 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.

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

EFFECTS OF EXEMPTION
30.The Amendment facilitates a use and development of land that may impact on third parties. The effect of exemption is that third parties will not receive statutory notice of the Amendment and will not have the opportunity to make a submission in relation to the Amendment, and for those submissions to be considered by a panel.
31.However, as set out above, I am informed that Cleanaway undertook 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. Those persons were given the opportunity to raise any issues or concerns about the impacts of the proposed use and development. I have considered the comments of the Council’s, key stakeholders and members of the community in the preparation of the Amendment.
32.Additionally, in August 2020 I sought the views of Melton City Council in relation to the form and content of an earlier version of the Amendment and request that I exercise my power under section 20(4) of the Act to exempt the Amendment from the notice requirements of the Act and the regulations. Council has informed me that “Council does not support the Minister’s proposed use of section 20(4) of the Planning and Environment Act 1987 nor the Amendment as currently drafted.” Council has also submitted to me suggested changes to the form and content of the Incorporated Document.
33.However, the land on which the facility is proposed to be constructed and operated is separated from sensitive land uses and is currently used in part as a licenced landfill and an operating quarry. I consider that this limits the likely range of impacts and issues, and together with the consultation carried out, means a formal exhibition process for the Amendment is unlikely to identify any new issues which were not considered as part of the consultation for the facility and preparation of the Amendment, or result in any significant changes to the Amendment.
34.As outlined above, there is an urgent need for one or more spoil processing and disposal facilities to receive spoil from the WGT project so that tunneling can commence. The benefits of an exemption from sections 17, 18 and 19 of the Act and the regulations may be significant, in that, subject to contractual arrangements, the early availability of the facility will reduce the on-going delay to construction and ultimate completion of the WGT project. The commencement of construction as early as possible will bring forward economic stimulation and jobs, and the completion of the project will bring forward the State significant benefits described above. In light of the current and predicted economic environment, I consider that these benefits are urgent for the economic and social wellbeing and interests of Victorians. The exemption from sections 17, 18 and 19 will enable the commencement of construction earlier than would be possible if time was taken to comply with those sections.
35.Accordingly, I consider that the benefits of exempting myself from sections 17, 18 and 19 of the Act outweigh any effects of the exemption on third parties.

DECISION
36.I have decided to exercise my power to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect of Amendment C222melt to the Melton Planning Scheme.

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

Incorporated Document

The Amendment inserted the Incorporated Document in the Melton Planning Scheme, to allow the development and use of the Ravenhall site for the receipt of spoil from the West Gate Tunnel project. The introductory clauses of the Incorporated Document provide:

1. INTRODUCTION
1.1This 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).
1.2This 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).
1.3The control in Clause 4 prevails over any contrary or inconsistent provision in the Planning Scheme.

2. PURPOSE
2.1The 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
3.1The control in Clause 4 applies to land shown as SCO5 on the Scheme maps forming part of the Scheme (the Project Land).

Clause 4 contains the relevant planning control:

CONTROL
4.1Despite 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.
4.2This 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.
4.3The 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:
…

Specific works and activities that are permitted are set out in cll 4.3.1 to 4.3.6.

Clause 5 sets out a number of conditions on the permitted use and development, relevantly:

CONDITIONS
5.1The use and development of the Project Land for the Project permitted by this document is subject to the following conditions:

…
Environmental Management Plan
5.1.2Prior 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:
…

Various matters are set out below cl 5.1.2, including operational measures to address bushfire risk and noise, overarching governance matters, a stakeholder communication plan, a complaints policy, and a rehabilitation plan. Clause 5.1.3 then provides:
5.1.3The 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.

Invalid approval of Environment Management Plan

The Council contended that the Exemption Decision was affected by an error of law because the Minister relied on the EPA’s invalid ‘approval’ of the EMP under the Spoil Management Regulations.

In September 2020, Cleanaway submitted an environment management plan prepared by Senversa for the EPA’s approval under the Spoil Management Regulations. By letter dated 12 October 2020, the EPA advised Cleanaway that it had approved the EMP subject to a number of conditions:

Environment Protection Authority (EPA) has reviewed the EMP and is satisfied that it meets the requirements of the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (the TBM Regulations). Therefore, pursuant to 4(1)(b) of the TBM Regulations, the Authority approves the EMP on the following conditions:
1. Prior to commencement of construction of the liner of the containment cell, the submission of specific designs for the containment cell including auditor review which must include:
a. detailed technical specifications of the containment cell and additional areas where spoil will be managed
b. technical specification and CQA[11] plan for lining systems including underlying and subgrade layers of holding bays and leachate pre-treatment ponds
[11]CQA is an acronym for ‘construction quality assurance’.
c. design of temporary stormwater management infrastructure for the operational phase
d. an assessment of the overall stability of the waste mass and containment cell
e. information on the tie in of the liner system of the Spoil Management and Reuse Facility (SMRF) containment cells and existing MRL[12] cells. In addition, further information must be included on the provisions to ensure that leachate migration into the MRL cells is limited.
[12]MRL is an acronym for ‘Melbourne Regional Landfill’.

2. Prior to commencement of construction of holding bays and leachate ponds, the submission of performance specification for other design elements of these structures that are not covered under item 1 above, including further modelling must be undertaken to justify the use of a GCL[13] as a primary barrier for the holding bays, given the potential for higher seepage. If this does not adequately confirm the suitability of a GCL, further engineering controls should be provided.
[13]GCL is an acronym for ‘geosynthetic clay liner’.
3. Prior to receipt of spoil at the facility:
a. the submission of technical specification designs for the wastewater treatment plant that include removal efficiencies for each treatment train to confirm that the proposed treatment train can achieve required treated water quality
b. Biota (fish, aquatic invertebrates) must be sampled at offsite locations (Skeleton Creek, Leakes Road Wetland and lower reaches of Laverton Creek) to establish a baseline.

4. Prior to depositing spoil in the containment cell:
a. provision to the Authority of verification of the containment cell construction by a construction auditor and independent third-party geotechnical verification consistent with EPA publication 1323.3.

5. The completion of a follow-up noise assessment to verify compliance with SEPP N-1 once the spoil processing and management facility is operational to confirm the effective implementation of noise mitigation measures.
6. Obtain relevant additional approvals prior to the discharge of treated waters from the SMRF to the site’s storm water system.
7. Reuse of spoil which meets IWRG 621 threshold criteria for Fill Material and concentrations of PFAS less than the reuse criteria in EPA Publication 1669.3 can be reused within Cleanaway’s licensed Melbourne Regional Landfill.
8. Prior to receiving the final load of spoil from the WGTP’s tunnel boring machine, preparation of a detailed rehabilitation and after-care management plan including:
a. specific designs for the containment cell cap including stormwater management infrastructure. This should also include auditor review in accordance with regulation 6(2)(s) of the TBM Regulations; and
b. leachate management and monitoring during aftercare
c. cap erosion inspection and remediation.

The EPA had earlier approved an environment management plan in relation to another site in contention to receive the West Gate Tunnel spoil, at Maddingley in the Shire of Moorabool. In November 2020, Moorabool Environment Group Inc. commenced a proceeding in this Court, challenging the validity of that approval. On 7 December 2020, the EPA informed the parties to that proceeding that it had formed the view that it was not open to it to be satisfied that the Maddingley EMP included all of the matters specified in reg 6(2)(s) of the Spoil Management Regulations. The EPA further advised that it had formed the view that the approval was ultra vires. It later consented to an order in the nature of certiorari, quashing the approval of the Maddingley EMP.

These events apparently prompted the EPA to review the validity of its approval of the EMP for the Ravenhall site. On 10 December 2020, it wrote to Cleanaway advising that the approval was not valid:

The [Maddingley] Proceedings caused EPA to conduct a review of its decision to approve the TBM[14] EMP submitted by Cleanaway. As a result of that review, the EPA has formed the view that its decision to approve Cleanaway’s TBM EMP is affected by jurisdictional error because that plan, as submitted, did not include all of the material required by regulation 6(2) of the [Spoil Management] Regulations.
Because the EPA’s decision to approve Cleanaway’s TBM EMP is affected by jurisdictional error, that decision is invalid and has no legal force or effect. In particular, the decision does not afford Cleanaway the protection set out in regulation 4 of the Regulations.
If Cleanaway wishes to have a TBM EMP approved under the Regulations, it is necessary for Cleanaway to submit a fresh TBM EMP to the EPA that includes all of the material required by the Regulations. The EPA will then assess that fresh TBM EMP against the requirements of the Regulations.

[14]TBM is an acronym for ‘Tunnel Boring Machine’.

It is clear why the EPA came to the view that its approval of the Ravenhall EMP was affected by jurisdictional error, although this was not spelled out in its letter. The EMP that was submitted by Cleanaway and ‘approved’ by the EPA on 12 October 2020 simply did not include a number of the things that were required by reg 6(2) of the Spoil Management Regulations.

(a) The EMP did not include ‘detailed designs and technical specifications of the … containment system’ and ‘a construction quality assurance plan for the containment system’, as required by regs 6(2)(k) and (l). The designs had only been documented ‘to the level of a well-developed concept’ in the EMP submitted for approval. Conditions 1(a) and (b) of the EPA’s approval letter required the relevant technical specifications to be submitted before construction of the liner of the containment cell commenced.

(b) The EMP did not include a monitoring program to demonstrate compliance, as required by reg 6(2)(p). Rather, it provided that the monitoring program would be prepared before operation of the facility if it was confirmed as the preferred supplier and had received the necessary planning and environmental consents.

(c) The EMP did not include a pollution incident plan, as required by reg 6(2)(r). It contemplated that this plan would be developed upon confirmation that Cleanaway was the preferred supplier.

(d) While an environmental auditor’s report was provided with the EMP, it was unable to assess the suitability of the things that had been omitted from the EMP – namely, the detailed designs and technical specifications of the containment system, the monitoring program and the pollution incident plan. The auditor’s report therefore did not cover the matters required by reg 6(2)(s).

The EPA later advised Cleanaway that, when submitting a fresh application for approval of a new EMP, it should ensure that the new EMP included all of the material required by reg 6(2) of the Spoil Management Regulations, as well as all of the material identified in items 1 to 8 of the EPA’s letter of 12 October 2020.

The Council’s submissions

The Council contended that the statement in the Reasons that an EMP had been approved by the EPA under the Spoil Management Regulations was an error of law. It noted that the Minister had found that the EPA had granted an approval under the Environment Act and the Spoil Management Regulations of an EMP ‘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 Act] and regulations to protect human health and the environment’.[15] The Minister had also considered that the EMP ‘approved under’ the Spoil Management Regulations would ‘adequately address’ substantial concern expressed by the community and key stakeholders about the environmental consequences of dumping contaminated soil in their neighbourhood.[16] In addition, the Council pointed out that the Incorporated Document referred to the EMP prepared by Senversa, which was to be used as the basis for a revised environment management plan to be submitted for the Minister’s approval.
[15]Minister’s Reasons, [21].
[16]Minister’s Reasons, [24].

The Council submitted that it was critical to the Minister’s reasoning that there were appropriate controls and conditions on the spoil processing facility, as expressed in the EMP and the Incorporated Document, and that the EMP had been approved by the EPA and had legal effect. It argued that the Minister erred in attributing to the EMP a legal status effect that it did not possess, and that this was reflected in the Reasons. Contrary to the Minister’s legally erroneous understanding of the effect of the EMP, it was not capable of being validly approved by the EPA, and the EPA’s purported approval was a ‘decision that lacks legal foundation and is properly regarded, in law, as no decision at all’.[17]
[17]Relying on Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, [51] (Gaudron and Gummow JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [24] (Kiefel CJ, Gageler and Keane JJ) (Hossain).

Similarly, the Council argued, the Minister considered that the conditions imposed on the approval by the EMP ‘approved under’ the Spoil Management Regulations would enable the proposed use and development to proceed in an acceptable way. This was wrong, because the EMP was not capable of being validly approved by the EPA.

According to the Council, the Minister’s references to the EPA’s approval of the EMP were not findings of fact. The Minister referred not only to the fact of the EPA having approved an EMP, but gave it a legal description – an EMP approved under the Spoil Management Regulations. Reading the Reasons fairly and as a whole, the Council said that the EPA’s approval of the EMP was a thing that fell within the power conferred by the Spoil Management Regulations. It was a question of law, not a question of fact, whether the EMP was approved.[18]
[18]Relying on Farmer (Surveyor of Taxes) v Trustees of the Late William Cotton [1915] AC 922, 930-1 (Earl Loreburn), 932 (Lord Parker); Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40, 110-12 (Greer LJ); Metropolitan Borough of Battersea v The British Iron and Steel Research Association [1949] 1 KB 434, 471-2 (Denning LJ); Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126, 138 (Jordan CJ); and Vetter v Lake Macquarie City Council (2001) 202 CLR 439, [24], [26] (Gleeson CJ, Gummow and Callinan JJ).

The Minister’s error was said by the Council to amount to an error of law on the face of the record. This was because the Minister was a ‘tribunal’ for the purposes of the Administrative Law Act 1978 (Vic) and, by reason of s 10 of the Administrative Law Act, the Reasons were incorporated into the record. The Council argued that it was apparent on the face of the Reasons that the Minister had made an error of law by attributing to the EMP the legal character of an approved EMP.

The Council also characterised the Minister’s error as a jurisdictional one. The exemption power could only be exercised by the Minister if he considered that one or both of the matters in s 20(4) of the Planning Act were made out.[19] These subjective jurisdictional facts did not exist, because the Minister formed his state of mind based on an error of law.[20] Further, there was no probative evidence on which the Minister could have formed the necessary state of mind, because it should have been obvious to the Minister that the EPA’s approval of the EMP was beyond power.
[19]Relying on East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, [181] (Ashley and Redlich JJA).
[20]Relying on Avon Downs Pty Ltd v Commissioner of Taxation (Cth) (1949) 78 CLR 353, 360; Buck v Bavone (1976) 135 CLR 110, 118 (Gibbs J); Craig v South Australia (1995) 184 CLR 163, 179.

On either basis, the Council argued, the Minister’s formation of the necessary state of mind was vitiated. That being so, the subjective jurisdictional fact on which the Minister’s power rested was not satisfied, and his purported exercise of the power in s 20(4) was affected by jurisdictional error.[21]
[21]Relying on ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, [59] (McHugh and Gummow JJ).

The Council submitted that the error was plainly material, because the Minister’s reliance on the EMP as a validly approved plan was central to his decision.[22] This was apparent when the Reasons were read as a whole. The Minister twice referred to the ‘approval’ by the EPA of the EMP being an approval under law, and plainly considered that the approval addressed various significant concerns raised by stakeholders. The Council asked whether the Minister would necessarily have made the same decision if, instead of being advised that the EMP had been approved by the EPA, he had been advised that the EMP was incapable of satisfying the EPA of the matters set out in reg 6(2) of the Spoil Management Regulations and that the EPA’s approval of the EMP was invalid.
[22]Referring to Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [38] (Bell, Gageler and Keane JJ ).

While the Council accepted that materiality is necessary in order to establish jurisdictional error, it made a formal submission that it was not an essential component of error of law on the face of the record. It accepted that I would as a matter of comity follow the observation of Edelman J in Hossain v Minister for Immigration and Border Protection,[23] and a series of decisions of single judges of this Court,[24] to the effect that materiality is a requirement for error of law on the face of the record.
[23](2018) 264 CLR 123, [65].
[24]Victoria Pre Cast Pty Ltd v Papazisis [2003] VSC 208, [8]; Wilson v County Court (Vic) (2006) 14 VR 461, [43]; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2) (2009) 26 VR 172, [121]; Combined Enterprises Pty Ltd v Brister [2016] VSC 807, [21].

The Minister’s submissions

There was no dispute that the Minister’s Reasons were incorporated into the ‘record’ of the Exemption Decision. The Minister also accepted that the EPA’s approval of the EMP on 12 October 2020 was beyond power and invalid.

However, the Minister disputed the Council’s characterisation of his references to the EMP approval under the Spoil Management Regulations as an error of law. Rather, he said that they comprised a finding of fact that was open on the material before the Minister when he made the Exemption Decision. As at that date, the EPA had in fact approved the EMP, although it later disavowed that decision and advised Cleanaway that the approval was invalid and of no effect.

Contrary to the Council’s submission, the Minister said that his references to the EMP in the background section of the Reasons involved no determination that the EMP was validly approved. Having regard to the statutory context in which the Minister was acting, there was no reason for him to make any such determination.

The Minister relied on the established principle that there is no error of law in making a wrong finding of fact, unless there is no material to support the finding.[25] He also relied on a more esoteric line of reasoning, to the effect that ‘a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact’.[26] The Minister argued that the EPA’s approval of the EMP was a thing in fact at the time of the Exemption Decision. Even if it was a nullity that lacked statutory force, that did not deprive it of its factual existence for the purposes of the Minister’s decisions under the Planning Act.
[25]Relying on Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, [90] (Hayne, Heydon, Crennan and Kiefel JJ); S v Crimes Compensation Tribunal [1998] 1 VR 83, 90 (Phillips JA).
[26]New South Wales v Kable (2013) 252 CLR 118, [52] (Gageler J). See also Christopher Forsyth, ‘”The Metaphysics of Nullity”: Invalidity, Conceptual Reasoning and the Rule of Law’, in Christopher Forsyth and Ivan Hare (eds), The Golden Metwand and the Crooked Cord (1998), 141, 147-8.

Further, and in the alternative, the Minister contended that any error of law was not material to the Minister’s decision, as it could not possibly have affected his decision. He put this submission in two ways.

First, the Reasons indicated that the Minister was satisfied that the various environmental concerns were adequately addressed because of the environmental management framework established by the Incorporated Document, independently of the EPA’s prior approval of the EMP. The Incorporated Document gave legal effect to the EMP in a way that was independent of but complementary to the EPA’s approval of it. Notably, cl 5.1.2 of the Incorporated Document required the submission of a revised EMP, for approval by the Minister, before the commencement of the use and development of the site. As such, the validity of the EPA’s approval of the EMP was not material to the Minister’s reasoning, and any error of law would not warrant an order in the nature of certiorari.

Second, the Minister’s Reasons recorded that he had decided to exercise the power in s 20(4) of the Planning Act for two independent reasons – because he considered that the interests of Victoria made the exemption appropriate, and because he considered that compliance with the requirements of ss 17 to 19 was not warranted. The Minister argued that neither of these reasons relied on his references, in the background section of his Reasons, to the fact that the EPA had approved the EMP.

Finally, the Minister rejected the contention that his references to the EPA’s approval of the EMP supported a conclusion that his state of satisfaction as to the matters on which his power in s 20(4) of the Planning Act rested was affected by any mistake of law. His opinions as to the two separate grounds for the exercise of the power were not tainted by Wednesbury unreasonableness.[27] To the contrary, he argued that there was an entirely plausible justification for him to hold the opinion that the EPA had professed to approve the EMP and that, independently of the validity of the approval, the legal framework established by the Incorporated Document would adequately address stakeholder concerns. That conclusion was supported by probative evidence, in the form of the EPA’s approval letter of 12 October 2020.
[27]Referring to East Melbourne Group, [181]-[182] (Ashley and Redlich JJA).

Consideration

There are two separate legislative schemes in Victoria regulating land use planning and environmental protection, which operate independently of one another. Land use planning is the province of the Planning Act, while environmental protection is regulated under the Environment Act (now the Environment Protection Act 2017 (Vic)). An occupier of premises used for the treatment and disposal of waste must comply with the requirements of both schemes.

That said, the two schemes complement each other to a significant extent, and must work in an integrated way. The Victorian Civil and Administrative Tribunal, in exercising its review jurisdiction under the Planning Act, has recognised the EPA as ‘the pre-eminent, expert authority within the state on all matters concerning the control of pollution and protection of the environment’.[28] The Tribunal has adopted a general principle of not attempting to replicate, in a planning permit, matters that are controlled by a licence or works approval granted by the EPA:[29]

We consider it may be appropriate for a planning permit condition to state that the use or development (or specific aspects thereof) must be in accordance with a licence or works approval issued by the EPA (as amended from time to time) but the condition should refrain from referring to specific details or plans as these may change from time to time as the licence or works approval is upgraded.

One reason for the Tribunal’s adoption of this approach is that it promotes consistency and minimises conflict between the two schemes.[30]

[28]SITA Australia Pty Ltd v Greater Dandenong City Council (2007) 150 LGERA 266, [22].

[29]SITA Australia, [29].

[30]SITA Australia, [33]-[35], [42]-[47]. See also Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSCA 332, [119]-[121].

Reading the Reasons fairly, as a whole, and in their context,[31] I do not accept that the two references to the approval of the EMP in the Reasons have the significance contended for by the Council. A significant aspect of the context in which the Minister’s Reasons are to be read is the complementary but independent relationship between the statutory schemes that regulate land use planning and environmental protection. In other words, the Minister must be taken to have understood that the development and use of the site as a spoil processing and disposal facility would require both planning approval under the Planning Act, and approval by the EPA under the Environment Act.
[31]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ).

The Reasons identified two separate, independent reasons for the Exemption Decision: the first was that the interests of Victoria made the exemption appropriate, and the second was that the Minister considered that compliance with the requirements of ss 17, 18 and 19 was not warranted.[32] After setting out relevant background,[33] the Reasons identified the benefits of the exemption,[34] and its effects.[35] Under the heading ‘Reasons for Decision’, the Minister summarised why he was satisfied that compliance with the requirements of ss 17, 18 and 19 was not warranted, and why he was satisfied that the interests of Victoria made the exemption appropriate.[36]
[32]Minister’s Reasons, [6]. The Minister’s Reasons are set out in full at [27] above.
[33]Minister’s Reasons, [7]-[24].
[34]Minister’s Reasons, [25]-[29].
[35]Minister’s Reasons, [30]-[35].
[36]Minister’s Reasons, [38].

The EPA’s approval of the EMP was mentioned twice in the background section of the Reasons. It did not feature in the summary given by the Minister at the conclusion of his Reasons, or in his identification of the benefits and effects of the exemption. The Minister’s first reference to the EPA’s approval of the EMP appeared in a narration of the context in which the Exemption Decision was made.[37] His second reference to the approval was in relation to issues raised in correspondence received by the Minister from members of the community and key stakeholders who had advised of their opposition to the proposal.[38] After listing those issues, the Minister said:[39]

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.

[37]Minister’s Reasons, [21].

[38]Minister’s Reasons, [22].

[39]Minister’s Reasons, [24].

These references to the approved EMP do not, in my view, amount to a conclusion that certain facts ‘answer a statutory description or satisfy statutory criteria’.[40] The Minister attributed no legal character to the EPA’s approval of the EMP; he merely referred to the approval as a relevant background fact. His references were, at the very most, a finding of fact that an environment management plan had been approved under the Spoil Management Regulations.
[40]Vetter, [24] (Gleeson CJ, Gummow and Callinan JJ).

A finding that the EMP had been approved was plainly open on the material before the Minister, which included advice that approval had been granted,[41] and a copy of the EPA’s letter of 12 October 2020.[42] At the time the Minister made the Exemption Decision, the EPA professed to have approved an EMP for the site. I accept the submission of the Minister that, although the approval was invalid, it was a ‘thing in fact’ that could be referred to by the Minister in making the Exemption Decision.
[41]Brief to Minister dated 5 November 2020, [12], [46].
[42]Attachment 5 to the brief.

While it may be accepted that a decision made beyond power is a nullity and lacks legal force, it is simply not the case that such a decision can never have legal consequences. Some of the circumstances in which an invalid decision can have legal consequences were canvassed by Gageler J in New South Wales v Kable:[43]

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,[44] 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.[45]

[43](2013) 252 CLR 118, [52].

[44]Citing Werrin v The Commonwealth (1938) 59 CLR 150 and South Australian Cold Stores Ltd v Electricity Trust (SA) (1957) 98 CLR 65 as explained in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, 372-4.

[45]Citing Ruddock v Taylor (2005) 222 CLR 612.

This passage was recently cited with approval in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft.[46] Ms Moorcroft was removed from Australia to New Zealand in January 2018 after her visa was cancelled. The cancellation of her visa was later quashed, which had the legal effect that it was ‘retrospectively nullified’ and her removal was not authorised. She contended that this had the effect that she had not been ‘removed’ from Australia, and so was not a ‘behaviour concern non-citizen’ as defined in s 5(1) of the Migration Act 1958 (Cth). However, the High Court held unanimously that this did not change the historical fact that Ms Moorcroft was removed from Australia. The ‘theory of the second actor’ supported interpreting ‘removed’ in the definition of ‘behaviour concern non-citizen’ in accordance with its ordinary meaning.[47]
[46](2021) 391 ALR 270, [20] (Moorcroft).
[47]Moorcroft, [20], citing Forsyth (n 26) 146-50.

The Council sought to distinguish the present case from other cases in which it has been recognised that an invalid decision may have practical and legal consequences. It pointed out that this was not a case of payment in answer to an invalid demand, or a circumstance where an exercise of statutory power was authorised by statute, even if it was based on a purported but invalid exercise of power. [48] Unlike in Ruddock v Taylor[49] and Moorcroft, there was no question of statutory construction to be resolved.
[48]Cf the examples given in Kable, [52] (Gageler J).
[49](2005) 222 CLR 612.

None 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’.[50] The categories of case in which that proposition may apply are not closed. In my view it applies in this case. The legal existence of the EPA’s approval of the EMP was not a precondition for the exercise of the Minister’s exemption power in s 20(4) of the Planning Act. The factual existence of the EPA’s professed approval of the EMP was a relevant background fact for the Minister to refer to in his Reasons for the Exemption Decision. I will examine the materiality of the reference shortly.
[50]Forsyth (n 26) 147.

For those reasons, I am not persuaded that the Minister’s reference to the approval of the EMP under the Spoil Management Regulations involved an error of law. At its highest, it was a finding of fact that was open to the Minister on the material before him. While the finding was mistaken, it did not concern a jurisdictional fact and did not amount to jurisdictional error.

Materiality

Even if the Minister’s Reasons had disclosed an error of law, I am not persuaded that the error would have been material to the Exemption Decision. That is, I am 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.[51] There are several reasons for that conclusion.
[51]Applying the test set out in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45] (Bell, Gageler and Keane JJ), and confirmed in MZAPC, [2], [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

First, the initial reference to the approval of the EMP at [21] of the Reasons simply formed part of the Minister’s recitation of the factual background in which he was considering making the Exemption Decision. The second reference to the approval, at [24], was as the second of two bases on which the Minister considered that the concerns raised in correspondence to him had been adequately addressed, and that the proposed use and development could proceed in an acceptable way. This intermediate conclusion was relevant background, and related to the merits of the Amendment. It did not feature in the Minister’s examination of the benefits and effects of the exemption. Nor did it feature in his summary of the reasons why he considered that the interests of Victoria made the exemption appropriate or, separately and independently, why he was satisfied that compliance with the requirements of ss 17, 18 and 19 of the Planning Act was not warranted.

Second, the other basis for the intermediate conclusion expressed at [24] of the Reasons was the Incorporated Document. The Incorporated Document required the submission of a revised environment management plan, addressing a long list of further matters, before the permitted use and development of the site could commence. The list of further matters to be addressed in the revised plan included some of the issues identified in [23] of the Reasons – in particular noise and other matters related to the amenity of the local community. The Incorporated Document also required a Traffic Management Plan to be submitted before commencement of the permitted use. Thus, a number of the issues of concern, and the general acceptability of the project, were addressed by the Incorporated Document, independently of the EMP ‘approved’ by the EPA.

Third, the statutory context in which the Exemption Decision was made required both planning and environmental approvals for the proposed spoil processing facility. As discussed, there are complementary but independent statutory schemes regulating land use planning and environmental protection. It is unremarkable – 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. Here, the Spoil Management Regulations specified in some detail the matters that had to be included in an environment management plan for premises which received and processed tunnel boring machine spoil, to the satisfaction of the EPA. These matters related to the acceptability of the project and the balance of the issues identified in [23] of the Reasons – in particular the design and specification of the system for containing spoil at the premises, arrangements for minimising the risk of any adverse impact on the environment, and a monitoring plan for compliance.

The Minister was advised that the Spoil Management Regulations were designed to ensure that tunnel spoil ‘does not impact the environment or the community’, and ‘put a framework in place to sustainably manage spoil that has low levels of contamination and can be specifically managed so that it is still safe to the community and the environment’.[52] He was also made aware of what had to be included in an environment management plan capable of being approved by the EPA under the Spoil Management Regulations.[53] It follows that the Minister understood that the site could not be used to receive and process spoil from the West Gate Tunnel project without a valid approval by the EPA, whether or not the EPA had validly approved the EMP in October 2020. In other words, given the requirements of the Spoil Management Regulations, it was of little consequence whether an environment management plan had been approved by the EPA before the Exemption Decision was made.
[52]Brief, [43]-[44].
[53]Brief, [45].

Fourth, cl 5.1.3 of the Incorporated Document contemplated that the EMP that had been approved by the EPA might change in future, ‘including by the approval of any different provision within any Environment Management Plan’ approved pursuant to the Spoil Management Regulations. It further provides that any later version of the EMP will take precedence over the earlier version, to the extent of any inconsistency. In other words, the Incorporated Document recognised that the content of the EMP was not fixed. This is a further indication that what was of significance for the Minister in making the Exemption Decision was the EPA’s responsibility for approving an environment management plan under the Spoil Management Regulations, rather than the ‘approved’ EMP itself.

The Council therefore did not establish that any error of law would have been material, in the sense required to establish jurisdictional error.

I note the Council’s formal submission that materiality is not a component of error of law on the face of the record.[54] As the Council anticipated, I apply the principle that the usual position is that an error of law on the face of the record does not render a decision liable to be set aside unless the error was material.[55] For completeness, I add that if I had been satisfied that the Exemption Decision involved an error of law on the face of the record, I would have declined to make an order setting aside the Exemption Decision because it was not materially affected by the error.
[54]See [45] above.
[55]Hossain, [65] (Edelman J), and the authorities cited. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ).

Disposition

The proceeding must be dismissed. I will hear the parties on the question of costs.

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Melton City Council v Minister for Planning [2021] VSC 700

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IGA Retail Services Pty Ltd v Minister for Planning [2025] VSCA 180

Melton City Council v Minister for Planning [2022] VSCA 144

Hume City Council v Minister for Planning [2022] VSC 187

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Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

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28 October 2021