Moorabool Shire 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 00239

MOORABOOL SHIRE COUNCIL	Plaintiff
v
MINISTER FOR PLANNING	Defendant

S ECI 2021 00256

MOORABOOL ENVIRONMENT GROUP INC.	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:	Moorabool Shire Council v Minister for Planning
MEDIUM NEUTRAL CITATION:	[2021] VSC 701

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ADMINISTRATIVE LAW – Judicial review – Amendment to Moorabool 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 of EMP a finding of fact open on the material before the Minister – Whether approval material to exemption decision – Whether Minister’s conclusion that views of Council were reasonably well known so further consultation not required involved an error of law or jurisdictional error – Conclusion reasonably open to Minister – No error of law – Exemption decision not affected by jurisdictional error – Planning and Environment Act 1987 (Vic) ss 17, 18, 19, 20(4), 20(5) – Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic), regs 4, 6.

ADMINISTRATIVE LAW – Judicial review – Minister’s decision to amend Moorabool Planning Scheme to insert an Incorporated Document – Whether decision invalid because Incorporated Document requires Council to enter into an agreement under s 173 of the Planning and Environment Act 1987 (Vic) regarding road works and improvements – Council not compelled to enter into s 173 agreement – Approved use and development conditional on site owner entering into agreement with Council – Planning and Environment Act 1987 (Vic) ss 6(1), 6(2), 173.

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APPEARANCES:	Counsel	Solicitors
For Moorabool Shire Council	Mr NM Wood and Ms LMR Hicks	Macquarie Local Government Lawyers
For Moorabool Environment Group Inc.	Mr PH Cadman	Spectrum Lawyers
For the Minister for Planning	Mr CJ Horan QC with Mr BC Chessell	Matthew Hocking, Victorian Government Solicitor

TABLE OF CONTENTS

Planning Act.................................................................................................................................. 3
Environment Protection Act and Spoil Management Regulations........................................ 5
Minister’s Reasons...................................................................................................................... 10
Incorporated Document............................................................................................................. 17
Ground 1 – Invalid approval of Environment Management Plan....................................... 21
The Council’s submissions............................................................................................... 26
MEG’s submissions........................................................................................................... 28
The Minister’s submissions.............................................................................................. 29
Consideration..................................................................................................................... 30
Materiality............................................................................................................. 35

Ground 2 – Were the Council’s views reasonably well known?......................................... 38
The Council’s submissions............................................................................................... 39
The Minister’s submissions.............................................................................................. 40
Consideration..................................................................................................................... 40

Ground 3 – Section 173 agreement........................................................................................... 44
The Council’s submissions............................................................................................... 46
The Minister’s submissions.............................................................................................. 48
Consideration..................................................................................................................... 49

Disposition................................................................................................................................... 51

HER HONOUR:

On 28 April 2020, Maddingley Brown Coal Pty Ltd requested the Minister for Planning to amend the Moorabool Planning Scheme to facilitate the use and development of land in Maddingley, south-east of Bacchus Marsh, as a spoil processing facility associated with the West Gate Tunnel project. The Maddingley site 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 C95moor which would, if approved, insert an Incorporated Document titled ‘Maddingley Spoil Processing Facility, October 2020’ into the Moorabool Planning Scheme.

On 19 November 2020, the Minister made three 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);

(b) a decision under s 29 to adopt the Amendment (Adoption Decision); and

(c) 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 three decisions was to give planning approval for the use and development of the site as the Maddingley 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 Adoption Decision and the Approval Decision without complying with the notice and public submission requirements of Pt 3 of the Planning Act in respect of the Amendment.

In these two proceedings, Moorabool Shire Council and Moorabool Environment Group Inc. (MEG) seek judicial review of the Minister’s decisions of 19 November 2020. They both seek orders in the nature of certiorari, quashing the Exemption Decision, the Adoption Decision, and the Approval Decision. For good measure, the Council also seeks an order quashing the gazettal of the Amendment.

The plaintiffs challenge the Minister’s decisions on three grounds. Grounds 1 and 2 relate to the Exemption Decision, and exercise of the Minister’s discretion under s 20(4) of the Planning Act. Ground 3 relates to the Amendment itself.

By Ground 1, both the Council and MEG contend 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 Maddingley site under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic) (Spoil Management Regulations). The EPA subsequently acknowledged that its approval of the EMP was invalid, and consented to orders quashing the approval. Both plaintiffs say that the unsoundness of the Exemption Decision means that the Adoption Decision and the Approval Decision are consequentially invalid.

By Ground 2, the Council contends that the Exemption Decision was affected by error because the Minister wrongly concluded that the views of the Council in relation to the Amendment were ‘reasonably well known’, and that further consultation would not be productive. The error is claimed to arise from the fact that the Council had not been provided with sufficient information to form a view about aspects of the proposed Amendment.

By Ground 3, the Council challenges the legality of the Amendment on the basis that it requires the Council to enter into an agreement under s 173 of the Planning Act, which is not authorised by the Planning Act and is repugnant to other legislation.

I have concluded that none of these grounds are made out. The Exemption Decision was not affected by jurisdictional error or by error of law on the face of the record, and the Amendment is valid. In summary:

(a) 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.

(b) It was open to the Minister to conclude that the views of the Council in relation to the Amendment were reasonably well known, and that further consultation and public exhibition would be unlikely to identify new issues or result in further changes to the Amendment.

(c) The Incorporated Document does not compel the Council to enter into a s 173 agreement. Consistent with s 6 of the Planning Act, it provides that the approved use and development is conditional on the owner of the site entering into an agreement with the Council.

As a result, both proceedings must 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. Section 6 sets out what may be included in a planning scheme:

6 What can a planning scheme provide for?
(1) A planning scheme for an area—
(a) must seek to further the objectives of planning in Victoria within the area covered by the scheme; and
(b) may make any provision which relates to the use, development, protection or conservation of any land in the area.

(2) Without limiting subsection (1), a planning scheme may—
(a) set out policies and specific objectives;
(b)regulate or prohibit the use or development of any land;

…
(h)require specified things to be done to the satisfaction of the responsible authority, a Minister, public authority, municipal council or referral authority;

…
(j) apply, adopt or incorporate any document which relates to the use, development or protection of land;
(k) provide that any use or development of land is conditional on an agreement being entered into with the responsible authority or a referral authority;

…

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 Maddingley 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

(a) the reprocessing, treatment, storage, containment, disposal or handling of waste; or

(b)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
(c)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 decisions were the subject of two detailed briefs to the Minister prepared by officers of the Department of Environment, Land, Water and Planning (DELWP) – an initial brief and a decision brief. The initial brief was recommended on 27 July 2020 by Dr Jane Homewood, Executive Director, Statutory Planning Services. The Minister returned the initial brief for review on 21 September 2020. The decision brief was recommended by Dr Homewood on 15 October 2020. It provided updated information in relation to matters raised by VicRoads and the Department of Transport, conditions proposed by the Council, and the approval of the EMP by the EPA under the Spoil Management Regulations. The decision brief recommended that the Minister make the Exemption Decision and approve the Amendment.

The Minister approved the decision brief on 19 November 2020, including by signing written reasons for making the Exemption Decision. The Minister’s Reasons are central to the plaintiffs’ challenges 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
MOORABOOL PLANNING SCHEME AMENDMENT C95MOOR
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 Maddingley Brown Coal Pty Ltd (MBC) to facilitate the use and development of land for the Maddingley 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). The facility is proposed to be located at the Maddingley Brown Coal site at Maddingley, south east of Bacchus Marsh.

WHAT POWER OF INTERVENTION IS BEING USED?
2.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 C95moor to the Moorabool Planning Scheme.
3.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.
4.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.
5.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
6.The Amendment proposes to apply the Specific Controls Overlay to the Project Land being part of Maddingley Brown Coal landfill, mine and waste resource recovery facility known as 11 Tilleys Road, Maddingley and land to the west of Guillines Road and part of Guillines Road Maddingley (the site). The Amendment inserts an Incorporated Document, the Maddingley 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 Moorabool Planning Scheme).
7.The site comprises in part a licenced landfill, coal mine and a waste resource recovery facility. 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 as currently approved.
8.The site has been operating as a coal mine since 1949 and a landfill since 1978, with the existing operations taking place under a planning permit granted by Moorabool Shire Council in 2014.
9.The Maddingley Brown Coal landfill is designated in the Statewide Waste and Resource Recovery Infrastructure Plan (2018) as a “waste hub of state importance”.
10.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.
11.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.
12.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.
13.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 MBC and/or other facilities when approved.
14.The controls in the amendment require the facility to be constructed and operated in accordance with the Incorporated Document, which includes conditions to regulate use and development and manage impacts associated with vegetation protection, vehicle movement, noise, dust and air quality management, waterway protection and traffic management.
15.I am informed that:
a.Community consultation and engagement was carried out on the proposal to establish the facility and the amendment proposal including community information sessions held at Darley Civic and Community Hub, and information stands set up at local markets.
b.MBC representatives held separate meetings with the Maddingley Brown Coal Community Consultative Committee (MBCCCC) which includes representatives of neighbouring landowners, the Bacchus Marsh Grammar School as well as with local environment groups, local growers and neighbouring businesses.
c.Direct consultation and engagement with Moorabool Shire Council included briefings by MBC and project delivery partner representatives.
d.Consultation with other key stakeholders including water and road authorities.

16.MBC has prepared the Maddingley Brown Coal – Stakeholder and Community Engagement Report 13 March 2020, which sets out consultation activities undertaken, includes information on the views and concerns of agencies and the community, and provides specific responses to those concerns.
17.In May 2020 I sought the views of Moorabool Shire Council on an earlier version of the proposed amendment under section 20(5) of the Planning and Environment Act 1987. Comments were received from Council on 18 June 2020 and suggested conditions were received on 20 July 2020 and on 16 September 2020. Revisions to the amendment documentation were made in response to the comments received from the Council.
18.I have received extensive correspondence from members of the community, including residents of Bacchus Marsh, community and environmental groups, including the Bacchus Marsh Community Coalition and the Moorabool Environment Group, as well as the Bacchus Marsh Grammar School, Federal and State Members of Parliament, Melton Shire Council, the National Trust of Victoria, and the Victorian Farmers Federation who have advised me of their opposition to the proposal.
19.The issues raised, in summary, include:
a.Perceptions that Bacchus Marsh is contaminated and is an undesirable place to live or do business;
b.Compliance issues with the existing Maddingley Brown Coal operation on the site;
c.Disposal of spoil that is contaminated by per-and poly fluorinated alkyl substances (PFAS) and other materials;
d.Impact of the operation and contaminants on the community including schools, aged communities and residential communities;
e.Lack of consultation and inappropriate use of section 20(4) of the Act;
f.Large number of truck movements and pollution from vehicles and potential spills;
g.No guarantee that contamination will not escape from the site;
h.Potential impact of trucks on the Bacchus Marsh Avenue of Honour elm trees;
i.Road and infrastructure damage by the large number of trucks;
j.Noise emissions, dust emissions and light emissions;
k.Technical reports inaccurate, incomplete or incorrect;
l.Technical reports not being available to the community;
m.The potential impact on endangered species and habitat including the Growling Grass Frog;
n.The potential impact of contamination/leachate on the Parwan Creek and Werribee River and the water table;
o.The potential impact on the Bacchus Marsh irrigation area and Werribee irrigation area and the produce from these areas; and
p.Traffic conflicts with trucks, pavement damage and added congestion from trucks.

20.The Incorporated Document and the Environmental Management Plan approved under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 will adequately address those concerns, 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.

BENEFITS OF EXEMPTION
21.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.
22.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.
23.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 facilities for the receipt and processing of spoil associated with the WGT project.
24.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. 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, 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.
25.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
26.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.
27.However, as set out above, I am informed that MBC undertook targeted third party consultation and engagement with 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. The Maddingley Brown Coal – Stakeholder and Community Engagement Report 13 March 2020 sets out consultation activities undertaken, includes information on the views and concerns of agencies and the community, and provides specific responses to those concerns. I have considered this report in the preparation of the Amendment.
28.A large number of the community and stakeholders have written to me opposing the proposed amendment and I have considered their comments in the preparation of the Amendment.
29.Additionally, in May 2020 I sought the views of Moorabool Shire 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. Extensive comments on the form, content, and strategic rationale for the Amendment were received from council on 18 June 2020. On 20 July 2020 and 16 September 2020 Moorabool Shire Council provided draft conditions. These comments and information provided by the Council were considered, and the form of the Amendment adapted in response, notably in relation to the requirements in the Incorporated Document around the environmental management plan for the site. Council also submitted [to] me that section 20(4) was not an appropriate assessment tool in this case.
30.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, coal mine and a waste resource recovery facility. 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.
31.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 of Victorians.
32.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
33.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 C95moor to the Moorabool Planning Scheme.

REASONS FOR DECISION
34.I provide the following reasons for my decision to exercise my power under section 20(4) of the Act.
35.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 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.
•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 [to] the delivery of the State significant benefits of the WGT project.
•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.

Incorporated Document

The Amendment inserted the Incorporated Document in the Moorabool Planning Scheme, to allow the development and subsequent use of the Maddingley site for the receipt of spoil from the West Gate Tunnel project. The relevant clauses of the Incorporated Document are as follows:

1. INTRODUCTION
1.1.This document is an Incorporated Document in the Moorabool 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 Maddingley 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 requirements specified in Clause 5.

The planning control is set out in cl 4 of the Incorporated Document:

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 in accordance with this Incorporated Document.
…
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:
4.3.1.The establishment and use of associated offices, laboratory, amenities, car parking, fences, wash bays, vehicle storage, spoil storage/holding bays, spoil drying bays, spoil containment cell, spoil treatment and handling area, leachate sedimentation ponds, landscaping, storage, sorting and hardstand areas, earthworks, associated signage and the connection of utilities and services.
4.3.2.Construction and operation of the Project 24 hours a day, 7 days a week.
4.3.3.Utility installation and relocation and associated works and services including establishment of a water treatment plant.
4.3.4.Any buildings or works or associated infrastructure or activities for the Project.
4.3.5.Buildings and works associated with the construction, upgrade, improvement or relocation of roads.
4.3.6.Ancillary activities to the use and development of the Project Land for the purposes of, or related to, the Project …

The use and development permitted by the Incorporated Document is subject to the conditions set out in cl 5, including the following conditions concerning approved plans and documents for Stage 1 and Stage 2 of the Project:

5.1.3The use and development of Stage 1 must be carried out generally in accordance with the Environmental Management Plan prepared by SLR dated 1 April 2020, except as otherwise agreed by the Environment Protection Authority, including by the approval of any different provision within any Environmental Management Plan approved pursuant to the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020, to the satisfaction of the Minister for Planning. To the extent of any inconsistency between those two Environmental Management Plans, the latter shall take precedence over the former.

…
5.1.7Prior to the commencement of Stage 2 of the Project, a revised Environmental Management Plan must be submitted to and approved by the Minister for Planning. The use and development must be carried out generally in accordance with the approved revised Environmental Management Plan to the satisfaction of the Minister for Planning. The revised Environmental Management Plan must be generally in accordance with the Environmental Management Plan prepared by SLR dated 1 April 2020, but modified to include the following further matters:
5.1.7.1In relation to overarching governance matters:
a.Clear performance outcomes;
b.Clear governance arrangements, which identify who is responsible for identified actions;
c.Proposed management measures for addressing various effects, if the performance outcomes are not being met;
d.A transparent framework for monitoring, auditing and reporting on the performance outcomes required by the Environmental Management Plan; and
e.Provisions for review of the Environmental Management Plan and the performance outcomes, at regular specified timeframes.

5.1.7.2In relation to operational matters:
a.Clarify the intended function of the ‘contingency bays’ to the west of Guillines Road;
b.The staging and timing of progressive cap cover for the containment cell;
c.The details of what contingency plans will be prepared to address environmental incidents and accidents, and by when, and how these will be implemented, monitored and reviewed;
d.In relation to ancillary infrastructure, details of the ‘roads, stormwater and erosion control systems’ that will be constructed to support the Project;
e.A Stakeholder Communication Plan;
f.A Complaints Policy, including a process for receipt of complaints and a process for complaints to be addressed and documented;
g.An Emergency Response Plan that generally conforms to "AS 3745-2002 Emergency control organization and procedures for buildings, structures and workplaces", or any subsequent replacement or amendment.
h.An Incident Management Plan.
i.A Training Plan and Site Induction Program.
j.A Lighting Plan to ensure that adverse impacts of lighting for night-time operation, on visual amenity for nearby residents, the public, and the aerodrome, are avoided;

5.1.7.3An Aftercare Management Plan;
5.1.7.4A Rehabilitation or End Use Plan, which must include the details of measures to be taken to mitigate and manage adverse visual impacts of the completed containment cell on nearby residents and the public;
5.1.7.5Any updates to the Risk Assessment which result from the extent of any departures from the Environmental Management Plan prepared by SLR dated 1 April 2020;
5.1.7.6In relation to dust:
…
5.1.7.7In relation to noise:
…
5.1.7.8In relation to flora and fauna:
…
5.1.7.9In relation to Aboriginal cultural heritage a requirement to develop an Aboriginal cultural heritage protocol which will include procedures to be followed in the event that Aboriginal cultural heritage sites are discovered during the Project, and the time by which this will be developed.
5.1.7.10An explanation of how bushfire and grass fire risk to the Project Land will be mitigated and managed.
5.1.7.11In relation to air safety, specify the measures that will be implemented to ensure compliance with consent conditions of Airservices Australia and Manual of Standards Part 139—Aerodromes and identify how compliance with these conditions will be maintained.
…

5.1.10The use and development of Stage 2 must be carried out generally in accordance with the approved revised Environmental Management Plan, except as otherwise agreed by the Environment Protection Authority, including by the approval of any different provision within any Environmental 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.

Clause 5 also contains conditions relating to roads in the vicinity of the site. Clauses 5.1.11 to 5.1.14 are the subject of the Council’s third ground of review, and are set out at [100] below.

Ground 1 – Invalid approval of Environment Management Plan

Both the Council and MEG 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.

On 1 September 2020, the EPA sent a letter addressed to Maddingley Brown Coal and Western Soil Treatment Pty Ltd, advising of its decision to approve the EMP submitted by Maddingley Brown Coal, subject to a number of conditions:

The Authority has reviewed the EMP and determined that it satisfies 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 subject to the provision of the additional detailed information as follows:
1.Prior to commencement of construction of the liner of the containment cell, the submission of detailed designs for the containment cell, including auditor review which should include:
a.detailed technical specifications and the CQA[11] plan for all materials to ensure they can meet the design objectives using EPA Publications 788.3 and 1323.2 as guidance;
[11]CQA is an acronym for ‘construction quality assurance’.
b.detailed designs, technical specifications and a CQA plan using EPA Publication 788.3 as guidance for the leachate collection components of the cell. This should include the pumping capacity of the sump pump and the pipe capacity to ensure it meets the minimum requirements of the containment cell, noting only one sump is proposed for the cell;
c.design of temporary stormwater management infrastructure for the operational phase;
d.the development of a holistic site water balance to ensure sufficient leachate management capacity to enable continual compliance with the maximum leachate depth of 300mm in the containment cell; and
e.during detailed designs the separation distance between the containment cell liner and groundwater should be confirmed and if the minimum separation distance is lower than modelled, the findings of the hydrogeological risk assessment should be re-evaluated against the spoil acceptance criteria for the containment cell.

2.Prior to commencement of construction of holding bays and leachate management infrastructure, the submission of auditor reviewed detailed designs, technical specifications and a CQA plan for the holding bays and leachate management infrastructure.
3.Prior to depositing spoil in the containment cell:
a.provision to the Authority of verification of the containment cell construction by an environmental auditor appointed pursuant to the Environment Protection Act 1970 and third-party geotechnical verification;
b.details of management controls to maintain a maximum leachate head in the containment cell of 300mm at all times; and
c.there should be monitoring of the effectiveness of the liner performance in the EMP to ensure its ongoing integrity. Contingency plans (which include trigger values for impacts to groundwater) should be in place to respond to incidents (assess risk and remediate where necessary) involving significant groundwater water impacts if they occur.

4.Prior to receipt of spoil:
a.provision to the Authority of verification of holding bays and leachate management infrastructure construction by an environmental auditor appointed pursuant to the Environment Protection Act 1970 and third-party geotechnical verification;
b.further clarity on how the appropriate policy for the treatment and disposal of waste acid sulfate soils and potential waste acid sulfate soils (EPA publication 655) will be followed;
c.a trigger level to trigger treatment of the leachate in the leachate pond to remove PFAS; and
d.further clarity of the record keeping method for the information required to be recorded and retained under regulation 5(p) of the TBM Regulations.

5.The completion of a follow-up noise assessment to verify compliance with Noise from Industry in Regional Victoria (NIRV) once the spoil processing and management facility is operational to confirm the effective implementation of noise mitigation measures.
6.Preparation of a detailed rehabilitation and after-care management plan including:
a.detailed designs for the containment cell cap including surface water and stormwater management infrastructure. The final cap contours should be between 5% and 20%, unless an alternative can be suitably justified and supported by EPA. This should also include auditor review in accordance with regulation 6(2)(s) of the TBM Regulations;
b.leachate management and monitoring during aftercare; and
c.cap erosion inspection and remediation.

The letter also communicated a number of recommendations made by the EPA for the operation of the facility, and addressed some regulatory and compliance matters.

The EPA made a second decision on 12 October 2020, in relation to some amendments to the EMP.

On 2 November 2020, MEG commenced proceeding S ECI 2020 04178 against the EPA, Maddingley Brown Coal and Western Soil Treatment, seeking judicial review of the EPA’s approval of the EMP. The EPA wrote to MEG and the other defendants on 7 December 2020, indicating that it had formed the view that it was not open to it to be satisfied that the plan submitted by Maddingley Brown Coal included all of the matters specified in reg 6(2)(s) of the Spoil Management Regulations. The EPA advised that it had formed the view that the approval of the EMP was ultra vires, and that it would consent to an order in the nature of certiorari quashing the approval.

The parties subsequently prepared a ‘joint memorandum on proposed orders’ dated 9 February 2021, to assist the Court in determining whether it was satisfied that the approval should be quashed by consent. After setting out the background, the joint memorandum identified the relevant grounds of review in MEG’s originating motion:

The Originating Motion
9.The plaintiff’s originating motion contains ten grounds of review. Here, it is necessary to mention only five of those grounds.
9.1.Ground 3 alleges that the Authority did not have any, or sufficient, evidence or other material to permit it to make the [decision on 1 September 2021 (First Decision)], having regard to the matters that regulation 6(2) requires be included, to the satisfaction of the Authority, in an environment management plan.
9.2.Ground 4 alleges that the First Decision was not authorised by, and/or the Authority constructively failed to exercise the jurisdiction granted by, the Regulations, because the Authority could not form the state of satisfaction required by regulation 6(2), and that state of satisfaction is a precondition to the exercise of the approval power under the Regulations.
9.3.Ground 5 alleges that the First Decision was not authorised by, and/or the Authority constructively failed to exercise the jurisdiction granted by, the Regulations, because the Authority misconstrued or misapplied regulation 6(2), because the Authority purported to form the state of satisfaction required by that provision in circumstances where it was not possible to do so.
9.4.Ground 9 alleges that the First Decision was legally unreasonable, because the environment management plan did not include the matters required by regulation 6(2) and therefore the Authority could not be satisfied that it did.
9.5.Ground 10 alleges that the [decision made on 12 October 2020 (Second Decision)] is affected by the same errors as the First Decision, in circumstances where the Second Decision is to be read in conjunction with the First Decision and purports to give approval to an amendment to the environment management plan the subject of the First Decision.

10.The parties agree that the grounds set out in the previous paragraph are established for the reasons set out in paragraphs 16 to 21 below, and that the First Decision and the Second Decision should be quashed accordingly.
11.There is no agreement between the parties concerning Grounds 1, 2, 6, 7 or 8.

The joint memorandum provided some further background, and continued:

13.Regulation 6(1) of the Regulations provides that an occupier of any premises may apply to the Authority for the approval of an environment management plan for those premises. In 2020, MBC made an application of that kind, with a view to receiving and managing spoil from the West Gate tunnel project at its premises in Bacchus Marsh.
14.Regulation 6(2) provides that an environment management plan must, to the satisfaction of the Authority, include the matters specified in paragraphs (a) to (t).
15.Relevantly, the matter specified in regulation 6(2)(s) is “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”.

The Jurisdictional Error
16.The power to approve an environment management plan is conditioned on the “jurisdictional fact”[12] specified in regulation 6(2) — namely, that the environment management plan include, to the satisfaction of the Authority all of the matters specified in paragraphs (a) to (t).
[12]That is, regulation 6(2) specifies “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”: Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43] (the Court).

17.Put another way, the Authority’s power to approve an environment management plan may only be exercised validly if that condition is met.
18.The parties agree that the plan submitted by MBC did not include all of the material specified in regulation 6(2)(s) of the Regulations.
19.The parties agree that, in those circumstances, an essential condition of the Authority’s power to approve the environment management plan submitted by MBC was not met.
20.For those reasons, the parties agree that:
20.1.Grounds 3, 4, 5 and 9 are established;
20.2.the First Decision was affected by jurisdictional error; and
20.3.the First Decision should be quashed.

21.In those circumstances, the parties further agree that:
21.1the Second Decision was also affected by jurisdictional error, because it concerned amendments to the environment management plan submitted by MBC and proceeded on the basis that the First Decision had validly approved that plan;
21.2.Ground 10 is established on that basis; and
21.2.the Second Decision should be quashed.

On 16 February 2021, Daly AsJ made final orders by consent, including an order quashing the EPA’s approval of the EMP on 1 September 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. The Minister’s conclusion that the EMP ‘approved under’ the Spoil Management Regulations would ‘adequately address’ various identified concerns could only be understood as a conclusion that the EPA’s approval of the EMP was legally effective. However, the Council submitted that the EPA’s purported approval of the EMP had always been a nullity and lacked statutory force from the outset; its invalidity had merely been confirmed by the orders made by Daly AsJ on 16 February 2021.[13] According to the Council, the EMP was objectively deficient, and so it was not open to the Minister to conclude that the EMP had been approved by the EPA.
[13]Relying on MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212, [48] (Kiefel CJ, Bell, Gageler and Keane JJ).

The Council’s primary contention was that there had been an error of law on the face of the record. It argued that 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. Aside from the effect of the Administrative Law Act, the Council submitted that there was a single document by which the Minister recorded the Exemption Decision, which he made by signing the Reasons.

Alternatively, the Council argued that the Exemption Decision was affected by jurisdictional error, because the Minister relied on the EPA’s purported but invalid approval of the EMP. It submitted that it was not open to the Minister to conclude that the EMP was validly approved, and so the Minister could not have formed the requisite state of mind to enliven his power under s 20(4) of the Planning Act. The Council accepted that s 20(4) did not require the Minister to form a view about whether the EMP had been validly approved by the EPA. However, it said that having chosen to place significance on the approval, the Minister took the risk that invalidity would infect his decision under s 20(4).

The Council rejected the notion that the EPA’s purported approval of the EMP was a ‘thing in fact’ that might have legal consequences in this case, despite being legally ineffective. It argued that the legal and factual contexts in which a purported but invalid exercise of power could have legal consequences were distinguishable from this case. Here, the Minister’s view that the EMP would ‘adequately address’ environmental concerns could only involve an erroneous belief that the EMP had been validly approved.

The Council submitted that the Minister’s error was material, in the sense that there was a realistic possibility that the Exemption Decision could have been different had the error not been made.[14] It argued that, reading the Reasons as a whole, the Minister plainly considered it important that the EPA had approved the EMP under the Spoil Management Regulations. It posed the counterfactual question: might the Minister have made a different decision if he had known that the EPA had not approved the EMP submitted by Maddingley Brown Coal? It emphasised that the initial brief did not include advice that the EMP had been approved, and that the Minister had returned it for review rather than approving it. The Council argued that this demonstrated the realistic possibility that the Minister might not have approved the decision brief, had he been advised that the EPA’s approval of the EMP was invalid.
[14]MZAPC, [2]-[3], [29] (Kiefel CJ, Gageler, Keane and Gleeson 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,[15] that materiality is a common restriction upon the issue of a writ of certiorari for both jurisdictional error and error of law on the face of the record.
[15](2018) 264 CLR 123, [65] (Hossain), citing a number of decisions of single judges of this Court: 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].

MEG’s submissions

MEG contended that the Minister’s reference to the EMP in the background section of the Reasons constituted an error of law on the face of the record, or alternatively demonstrated that the Minister formed the state of satisfaction required by s 20(4) of the Planning Act based on a mistake or error of law. It submitted that it was clear from the Reasons that the purported approval of the EMP was an integral part of his consideration that the exemption was appropriate. It was self-evident from the Minister’s Reasons that he considered that the purported approval made the proposed use and development of the site acceptable, and hence made the exemption appropriate.

In addition, MEG submitted that the Minister’s reliance on the purported approval amounted to jurisdictional error in making the Exemption Decision, because the EPA’s purported approval of the EMP was a legal nullity. There was therefore no basis for the Minister’s opinion that the significant environmental concerns set out at [19] of the Reasons were adequately addressed by an approved EMP. This error could be cast as any one of a range of possible jurisdictional errors affecting the exercise of the Minister’s power under s 20(4) of the Planning Act. Alternatively, MEG argued that the Minister made an error of law on the face of the record that was material to his chain of reasoning.

In support of its submission that the Minister made an error of law, MEG argued that an effect of the approval of an environment management plan under the Spoil Management Regulations is to bring the use and development of the relevant site under the enforcement regime of the Environment Act. That regime involves a statutory authority with compulsory powers, means and expertise to regulate the handling of industrial waste. It submitted that it must be inferred that the Minister was aware of, and relied on, the enforcement regime that sat behind the EPA’s purported approval of the EMP. Hence, MEG argued, the Minister relied on the legal effect of the purported approval.

Otherwise, MEG adopted the submissions of the Council in relation to the first ground of review.

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 1 September 2020 was beyond power and invalid.

However, the Minister disputed the plaintiffs’ characterisation of his reference to the EMP approval under the Spoil Management Regulations as an error of law. Rather, he said that it comprised a finding of fact that was open on the material before him when he made the Exemption Decision. As at that date, the EPA had in fact approved the EMP, although it later acknowledged that the approval was invalid, and consented to an order to quash it.

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.[16] 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’.[17] 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.
[16]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).
[17]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 environment management plan dated 1 April 2020, in a way that was independent of but complementary to the EPA’s approval. Notably, cl 5.1.7 of the Incorporated Document required the submission of a revised environment management plan, for approval by the Minister, before the commencement of Stage 2 of the project. 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 reference, 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 reference to the EPA’s approval of the EMP gave rise to jurisdictional error in the Exemption Decision. He argued that he had no independent statutory duty to assess whether the EMP met the requirements of the Spoil Management Regulations. At the time the Minister made the Exemption Decision, he had before him the letter from the EPA approving the EMP, which was a basis for his belief that it had done so – a belief which was ultimately not material to the bases on which he exercised his discretion.

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’.[18] 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:[19]

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.[20]

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

[19]SITA Australia, [29].

[20]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,[21] I do not accept that the single reference to the approval of the EMP in the Reasons has the significance contended for by the Council and MEG. 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.
[21]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.[22] After setting out the relevant background,[23] the Reasons identified the benefits of the exemption,[24] and its effects.[25] 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.[26]
[22]Minister’s Reasons, [5]. The Minister’s Reasons are set out in full at [32] above.
[23]Minister’s Reasons, [6]-[20].
[24]Minister’s Reasons, [21]-[25].
[25]Minister’s Reasons, [26]-[32].
[26]Minister’s Reasons, [35].

The EPA’s approval of the EMP was mentioned once, 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 specific context of the Minister’s reference to the EPA’s approval was in relation to issues raised in the ‘extensive correspondence’ received by the Minister from members of the community who opposed the use of the site as a spoil processing facility.[27] After listing those issues, the Minister said:[28]

The Incorporated Document and the Environmental Management Plan approved under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 will adequately address those concerns, 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.

[27]Minister’s Reasons, [18].

[28]Minister’s Reasons, [20].

I consider that this reference to the approved EMP was, at the very most, a finding of fact that an environment management plan had been approved under the Spoil Management Regulations. That finding was plainly open on the material before the Minister, which included advice that approval had been granted,[29] and a copy of the EPA’s letter of 1 September 2020.[30] At the time the Minister made the Exemption Decision, the EPA professed to have approved an environment management plan 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.
[29]Decision brief, [12], [24]-[25].
[30]Attachment 6 to the decision 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:[31]

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,[32] 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.[33]

[31](2013) 252 CLR 118, [52].

[32]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.

[33]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.[34] 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 the unlawful nature of Ms Moorcroft’s removal did not change the historical fact that she 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.[35]
[34](2021) 391 ALR 270, [20] (Moorcroft).
[35]Moorcroft, [20], citing Forsyth (n 17) 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, unlike in Moorcroft, there was no question of statutory construction to be resolved. Unlike in Ruddock v Taylor,[36] the Minister’s power in s 20(4) of the Planning Act was not enlivened on ‘reasonable suspicion’ that a relevant state of affairs existed. Nor is s 20(4) a provision that recognises the factual existence of a legally ineffective decision in order to enable merits review of the decision.[37]
[36](2005) 222 CLR 612.
[37]See, eg, Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 314; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, [39]-[52] (Gageler, Keane and Nettle JJ).

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’.[38] 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.
[38]Forsyth (n 17) 146-7.

I do not accept MEG’s submission that a valid approval of an environment management plan under the Spoil Management Regulations was necessary to bring the use and development under the statutory authority of the EPA and the enforcement regime under the Environment Act. That is because the Environment Act applied to premises at which waste was stored, including the proposed spoil processing facility, whether or not a works approval or licence had been given for the premises, and whether or not an environment management plan had been approved under the Spoil Management Regulations. For example, the power to enter premises in s 55(1) of the Environment Act was not conditioned on the premises having a works approval, licence or approved environment management plan. The power could be exercised to determine whether there had been a contravention of the Environment Act, and ‘generally for administering this Act and protecting the environment’, in circumstances where the EPA had not first approved the use of the premises.[39] It follows that I do not accept that it must be inferred that the Minister relied on the EMP approval having legal effect for regulatory and enforcement purposes.
[39]Environment Act, s 55(1A).

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.[40] There are several reasons for that conclusion.
[40]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 approval of the EMP was referred to in the Reasons as the second of two bases on which the Minister reached the intermediate conclusion, expressed at [20] of the Reasons, 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 [20] of the Reasons was the Incorporated Document. As set out above, the Incorporated Document referenced a different environment management plan from the ‘approved’ EMP – an earlier version that was submitted by Maddingley Brown Coal in April 2020. The Incorporated Document required a Traffic Management Plan to be submitted before any work was done to develop the site as a spoil processing facility. It also required the submission of a revised environment management plan, addressing a long list of further matters, before the receipt of any West Gate Tunnel spoil. The list of further matters to be addressed in the revised plan included a number of the issues identified in [19] of the Reasons – in particular compliance issues, dust, noise, traffic management (including the impacts of truck traffic on local roads), and flora and fauna (including potential impacts on the habitat of the Growling Grass Frog). Many of the issues of concern, and the general acceptability of the project, were addressed by the Incorporated Document, independently of the ‘approved’ EMP.

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 [19] 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 to ‘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’.[41] 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.[42] 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 September 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.
[41]Decision brief, [46].
[42]Decision brief, [47].

Fourth, the reason why the approval was invalid was because the ‘approved’ EMP did not include the environmental auditor’s report required by reg 6(2)(s) of the Spoil Management Regulations. It appears that the EMP met all of the other requirements of reg 6(2). There was no suggestion that the EMP suffered from any incurable defect, or that the EMP could not be approved by the EPA if an auditor’s report was subsequently provided by Maddingley Brown Coal.

Fifth, I was not persuaded by the Council’s submission that the fact that the Minister had returned the initial brief for review after the EPA had ‘approved’ the EMP demonstrated that the approval was material to his decision. The cover page to the decision brief explained that it provided updated information to reflect matters raised by VicRoads/Department of Transport and the conditions proposed by the Council, as well as the approval of the EMP. The first two matters resulted in changes to the Incorporated Document, which necessitated revision of the brief before the Minister made any decision. While the EPA’s approval of the EMP was also included in the updated information provided in the decision brief, it was not a development that affected the substance of the proposed Amendment.

The plaintiffs 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.[43] 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.[44] 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.
[43]See [49] above.
[44]Hossain, [65] (Edelman J), and the authorities cited. See also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353 (Mason CJ).

The first ground is not made out.

Ground 2 – Were the Council’s views reasonably well known?

The second ground on which the Council challenged the Exemption Decision concerned the Minister’s three findings, as stated in the Reasons, that:

(a) 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’;

(b) a formal exhibition process was unlikely to identify any new issues; and

(c) further notification and consultation would be unlikely to result in any substantive changes to the Amendment.

The Council contended that these findings involved an error of law on the face of the record, or alternatively jurisdictional error.

The Council’s submissions

The error was said to arise from the fact that the Council had repeatedly stated, in correspondence with the Minister and DELWP, that it had received insufficient information about the proposal, and so could not comment on aspects of it. In particular, the Council was insistent that it should be provided with the Human Health and Ecological Risk Assessment (HHERA) that had been prepared by Maddingley Brown Coal and submitted to the EPA. DELWP did not provide the Council with a copy of the HHERA, advising that it should be sought from the EPA or Maddingley Brown Coal.

On 18 June 2020, the Council provided DELWP with its ‘Review of Application Documentation’ for the Maddingley Brown Coal West Gate Tunnel spoil proposal. While the Review provided a detailed response by the Council to many aspects of the proposal, it noted that the Council had not been provided with the HHERA and several other technical reports. The Council made it clear that it regarded these documents as critical to the proposal, and stated that without that information it was unable to ‘formulate an informed view and provide meaningful input and responses’.[45] The Council reiterated its position in a letter to DELWP dated 25 June 2020.
[45]Review of Application Documentation, 17.

The Council relied on the fact that the Minister, through his delegate, had consulted with the Council under s 20(5) of the Planning Act. Assuming that this consultation was not ‘a cynical window-dressing exercise’,[46] and in light of the Council’s repeated advice that it could not express its views on important matters because it had not been provided with important information about the proposal, the Council submitted that it was not reasonably open to the Minister to conclude that the views of the Council were ‘reasonably well known’. Nor was it reasonable or rational for the Minister to conclude that formal exhibition of the Amendment was unlikely to result in any significant changes to it.[47]
[46]Council’s outline of submissions dated 31 May 2021, [51].
[47]Relying on BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532, [30]-[31] (Murphy and O’Bryan JJ).

The Minister’s submissions

The Minister responded that s 20(5) of the Planning Act did not oblige him to consult with the Council.[48] He said that it was a matter for him to determine the parameters of any consultation, including its nature, extent and duration, and the matters in respect of which to seek submissions when consulting under s 20(5).
[48]Relying on Lower Our Tracks Inc v Minister for Planning (2016) 219 LGERA 352, [183].

The Minister pointed out that the statement in the Reasons that the views of relevant third parties were reasonably well known did not amount to a finding that he had categorically ascertained the views of relevant third parties on every issue. He emphasised that he had qualified his findings about the usefulness of further consultation with the word ‘unlikely’.

By reference to the correspondence between the Council and DELWP, the Minister argued that there was evidence that supported the three impugned findings. He referred in particular to the comments on the form and content of the proposed Amendment provided by the Council in the Review, as well as the many pages of conditions that the Council had suggested be included in the Incorporated Document. In light of all this material, the Minister submitted that there was clearly ‘some basis’ for the impugned findings,[49] which represented a fair characterisation of the outcome of the consultation that had taken place.
[49]Relying on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-6 (Mason CJ).

Further, the Minister contended that any error in the findings could not have been material to the Exemption Decision because it was supported by the Minister’s separate and independent conclusion that the exemption was appropriate ‘in the interests of Victoria or any part of Victoria’.

Consideration

The impugned findings in the Reasons are evaluative conclusions, each of which is qualified in some way. The Minister considered that the views of relevant third parties were reasonably well known, that further notification and consultation would be unlikely to result in any substantive changes to the Amendment, and that a formal exhibition process would be unlikely to identify any new issues. Were these conclusions reasonably open to the Minister on the material before him?

It is fair to describe the correspondence between the Council and the Minister, and his delegate in DELWP, as extensive.[50] The following features of the correspondence are notable.
[50]The correspondence was exhibited to the further affidavit of Peter Eugene Lucas sworn 1 April 2021.

(a) The Council wrote to the Minister on 1 November 2019, 13 November 2019, 4 February 2020, 12 February 2020, 14 February 2020, 25 February 2020, 4 March 2020, 23 March 2020, 8 May 2020 and 15 May 2020. The tenor of that correspondence was that the Council was deeply concerned about the community, amenity, infrastructure and environmental impacts of the proposed spoil processing facility, sought to be provided with information about the proposal, and wished to be consulted before any decision was made by the Minister.

(b) On 20 May 2020, Dr Homewood of DELWP wrote to the Council, advising that under delegation from the Minister, she was consulting with the Council to seek its views on the use of s 20(4) to exempt the Amendment from the notice requirements of the Planning Act, and on the form and content of the Amendment and associated technical reports. On the same day, DELWP shared with the Council documentation submitted by Maddingley Brown Coal in support of the proposed Amendment, including an environment management plan dated April 2020. Dr Homewood sought the Council’s comments within 21 days, a deadline that was later extended to 18 June 2020.

(c) The Council wrote to DELWP on 21 May 2020, requesting a copy of the HHERA as a matter of urgency. Dr Homewood responded on 26 May 2020, to the effect that the Minister did not receive a copy of the HHERA. She advised that it formed part of an application made by the proponent to the EPA, and said the Council should contact the EPA to request the HHERA. It is not clear whether the Council acted on that suggestion or, if so, how the EPA responded.

(d) On 18 June 2020, the Council submitted its Review to the Minister. The Review’s conclusion gave a summary of the Council’s views about the proposed Amendment:[51]
[51]Review, 31.

The review of the amendment documents and associated technical reports considered the form and content with the primary focus on the best interests of the community. The review identified a lack of the necessary net community benefit analysis coupled with inconsistencies and incomplete assessment of the potential impacts of the proposal.
The documents were reviewed by Council officers and technical consultants identifying key issues for each report. As well as the specific key issues, some common fundamental matters were recognised that will need to be addressed prior to the amendment request being suitable for further consideration. These are:
1. The appropriateness of the Minister for Planning as the Responsible Authority;
2. The lack of analysis of Net Community Benefit;
3. The Incorporated Document needs to include definitive and enforceable conditions;
4. The Environment Management Plan requires specific mitigation and monitoring;
5. Clarification on responsibility of truck impacts and routes;
6. Inclusion of all potential impacts in assessments;
7. Appropriate mitigation to remove modelled non-compliances.

The application is considered flawed in many aspects as it lacks strategic justification, did not allow for proper and adequate consultation, with many of the supporting documents having significant errors and/or gaps, whilst the Incorporated Document is poorly constructed and therefore ineffective.
Moorabool Shire Council conclude that not only is s 20(4) [of] the Act not a suitable assessment tool for this proposal, but the amendment request does not include the appropriate level of information and consideration for a project of this size and controversial nature, and the technical reports do not provide a complete assessment.

Overall, the Council did not support the proposed use and development of the site as a spoil processing facility.

(e) On 16 September 2020, the Council wrote to DELWP providing draft conditions for inclusion in the Incorporated Document. The Council’s covering letter reiterated its complaint that it had not been provided with all relevant documents.

The Council’s position, communicated in the Review and in the draft conditions, was discussed in the decision brief provided to the Minister in October 2020.[52] A full copy of the Council’s comments was attached to the decision brief, along with an assessment of those comments prepared by DELWP.[53] The Incorporated Document presented for the Minister’s decision had been amended to address the Council’s suggested conditions.
[52]Decision brief, [7]-[8].
[53]Decision brief, Attachments 3 and 4.

In my view it was well open to the Minister, on the material before him, to conclude that the views of the Council were reasonably well known, and that further consultation and public exhibition were unlikely to identify new issues or result in further changes to the Amendment. In particular, there was evidence that the Council had been consulted, and had provided its views, including detailed comments on the Incorporated Document. There was also evidence that the Council’s views had been taken into account in formulating the Incorporated Document.

Further, most of the information gaps identified by the Council, including the missing HHERA, related to the environmental approval sought and purportedly given by the EPA under the Spoil Management Regulations. As discussed, it was reasonable for the Minister to leave those matters to the EPA, as the expert authority on environmental protection. The site could not be used as a spoil processing facility without EPA approval, which was a separate and independent requirement to the planning permission the subject of the Amendment.

It appeared to me that the Council’s real complaint was about the quality of the consultation undertaken by DELWP on behalf of the Minister. It was evidently aggrieved that it was not provided with, and had no opportunity to comment on, a number of relevant technical reports, in particular the HHERA. Whether or not that complaint was well-founded, it was not a basis to impugn the lawfulness of the Exemption Decision. Section 20(5) of the Planning Act does not oblige the Minister to consult with the relevant council before exercising the power under s 20(4), and does not prescribe how any consultation is to occur. The content and quality of any consultation that the Minister chooses to undertake is ‘not a legal issue, but a political one’.[54]
[54]Lower Our Tracks, [183].

The Council’s second ground is not made out.

Ground 3 – Section 173 agreement

The Council’s third ground relates to the Amendment itself, as distinct from the Exemption Decision. The Council contended that cll 5.1.11 to 5.1.14 of the Incorporated Document are not authorised by the Planning Act, and are repugnant to the Planning Act, the Local Government Act 1989 (Vic) and the Local Government Act 2020 (Vic) (together, the Local Government Acts), and the Road Management Act 2004 (Vic).

The impugned conditions relate to Council roads in the vicinity of the site:

5.1.11The owner(s) of the Project Land must enter into an agreement under section 173 of the Planning and Environment Act 1987 with the Moorabool Shire Council either before or after the commencement of the development and use, of the Project Land in accordance with this Incorporated Document.
5.1.12The section 173 Agreement referred to in condition 5.1.11 must provide for:
5.1.12.1The assessment of the Werribee River and Parwan Creek Bridges on Woolpack Road to determine the structural adequacy of the bridges based on the expected loading.
5.1.12.2The compensation of the Moorabool Shire Council for the cost of upgrading, maintaining, and upon completion of the Project, reinstatement works, in relation to council roads and council infrastructure including bridges within the municipal district of Moorabool Shire Council and particularly Woolpack Road, Tilleys Road, East Maddingley Road, Kerrs Road and Gullines Road if the roads are used, or intended to be used for access by trucks in accessing the Project Land.

5.1.13For the purpose of determining the level of compensation under the section 173 agreement referred to in condition 5.1.11 regard must be had to the volume and weight of the trucks used or intended to be used in accessing the Project Land for the purposes of the Project, for the duration of Stages 1 and 2, as compared with the volume and nature of the traffic using those roads for purposes unrelated to the Project.
5.1.14As an alternative to agreeing to pay compensation as referred to in condition 5.1.13 in respect of Woolpack Road, Tilleys Road, East Maddingley Road, Kerrs Road and Gullines Road, the owner(s) of the Project Land may offer to take responsibility directly for the necessary upgrading, maintenance and reinstatement works which works must be discharged to Moorabool Shire Council’s reasonable satisfaction.

Clause 5.1.15 provides for roads and road infrastructure that are the responsibility of the Head, Transport for Victoria, in the following terms:

5.1.15In relation to any roads or road infrastructure that are the responsibility of the Head, Transport for Victoria, if required by the Department of Transport, the owner(s) of the Project Land must enter into an agreement before the commencement of Stage 2 of the Project with the Department of Transport (or a suitable legal entity) to ensure that:
5.1.15.1The State will be compensated for any additional costs in relation to such roads and road infrastructure that is associated with the development authorised by this Incorporated Document.
5.1.15.2All road and road infrastructure changes, alterations, additions, repairs and maintenance be completed to the satisfaction of and at no cost to the Head, Transport for Victoria.
5.1.15.3Detailed specifications and works that need to be undertaken to remedy any impact the Project has caused to the road pavement and road infrastructure at the end of the Project.
5.1.15.4Within three months following cessation of receipt of spoil generated by the West Gate Tunnel Project on the Project Land, a Decommissioning Traffic Management Plan is prepared and implemented to ensure that the roads and road infrastructure are returned to pre-existing condition (including specification of any relevant pavement handback criteria).

The Council’s objections to these conditions centre on the requirement for the owner(s) of the site to enter into an agreement with the Council under s 173 of the Planning Act. That section enables a responsible authority to enter into an agreement with an owner of land in the area covered by a planning scheme for which it is the responsible authority. A s 173 agreement may provide for the matters set out in s 174(2), including:

(a) the prohibition, restriction or regulation of the use or development of the land;
(b) the conditions subject to which the land may be used or developed for specified purposes;

…

The Council’s submissions

The Council submitted that cll 5.1.11 to 5.1.14 of the Incorporated Document require the Council to agree to deal with its roads and road infrastructure in a certain way, regardless of the wishes of its constituents. It argued that the effect of the clauses is that it must do one of the following:

(a) upgrade its road assets and agree with the site owner, in the form of a s 173 agreement, about the compensation payable for doing so; or

(b) agree to the owner upgrading Council roads at the owner’s expense.

According to the Council, the Incorporated Document is premised on the notion that works required for the owner to carry out the project are permitted, and that necessary upgrades to Council roads will occur. The Council said that this was made clear by cl 5.1.11, which allows the s 173 agreement to be entered into ‘before or after the commencement of the development and use’. The conditions could therefore not be read to mean that the use and development is not permitted unless one of the required agreements is made between the owner and the Council.

The Council submitted that the impugned conditions are not supported by s 6(2)(k) of the Planning Act, because they do not ‘provide that any use or development of land is conditional on an agreement being entered into with the responsible authority’. Rather, the Incorporated Document both permits the use and development of the site as a spoil processing facility, and requires the Council to enter into agreements to facilitate that use or development. The Council further submitted that the impugned conditions are not supported by s 6(1)(b) of the Planning Act, which the Council argued should not be construed to authorise a planning authority to require a responsible authority to make an agreement under s 173 – in particular, an agreement involving the Council’s own property.

An alternative argument put by the Council was that cll 5.1.11 to 5.1.14 of the Incorporated Document are inconsistent with or repugnant to the Local Government Acts and the Road Management Act. The Local Government Acts establish Councils as independent legal entities, with governance functions to be performed on behalf of their constituents and local communities. The Road Management Act vests the legal ownership of public roads in Councils as the relevant road authorities, and imposes functions, powers and duties on Councils with respect to the management of roads. A Council has a non-delegable statutory duty, under s 40(1) of the Road Management Act, to inspect, maintain and repair public roads.

The Council submitted that it is inconsistent with or repugnant to the Local Government Acts and the Road Management Act for a planning scheme made under the Planning Act to compel a Council to enter into an agreement to upgrade public roads. The impugned clauses of the Incorporated Document were said to be an unlawful fetter on the proper exercise of the Council’s statutory functions and discretions in relation to its road assets.

The Council further contended that the impugned clauses were interdependent with cl 4.1 of the Incorporated Document, and could not be severed without giving the Incorporated Document a substantially different operation.[55] It followed, in the Council’s submission, that the entire Amendment was beyond power and should be quashed.
[55]Relying on Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 371 (Dixon J).

In the course of oral submissions, it became clear that it was the inclusion of the words ‘either before or after the commencement of the development and use’ in cl 5.1.11 that was objectionable to the Council. It feared that the use of the site as a spoil processing facility could proceed for years, with heavy truck traffic degrading its roads, without it having agreed what road works were necessary and what they would cost, and without any mechanism to force the owner of the site to agree. The Council accepted that cl 5.1.11 would be valid if it did not include the words ‘either’ and ‘or after’, simply requiring a s 173 agreement to be entered into before the commencement of the development and use.

The Minister’s submissions

The Minister’s position was that the impugned clauses, in particular cl 5.1.11, do not have the effect contended by the Council. Rather, cl 5.1.11 is one of the conditions with which the use and development permitted by the Incorporated Document must comply. It requires the owner of the site to enter into an agreement with the Council under s 173 of the Planning Act. The subject matter of the agreement, as set out in cll 5.1.12 to 5.1.14, is the impact on the road network of the truck movements associated with the approved facility. The adequacy of, and wear and tear on, truck routes to and from the site was an issue raised by the Council during consultation, and the impugned clauses were included to meet that concern. They provide two alternative mechanisms for ensuring that the road network is upgraded, maintained and reinstated at the cost of the owner of the site, as agreed with the Council.

The Minister submitted that the agreement contemplated by cl 5.1.11 would not compel the Council to undertake any works that it did not consider appropriate having regard to its duties and functions under the Local Government Acts and the Road Management Act. Instead, it would provide a means by which the Council would be compensated for any works that it did undertake. In the absence of agreement, the owner of the land could offer to undertake those works to the satisfaction of the Council, an offer which the Council would not be compelled to accept.

For those reasons, the Minister submitted that cl 5.1.11 was authorised by s 6(2)(k) of the Planning Act, which makes express provision for planning schemes, to ‘provide that any use or development of land is conditional on an agreement being entered into with the responsible authority’.

In the alternative, if the impugned clauses were found to be invalid, the Minister contended that they could be severed from the Incorporated Document, as permitted by s 22(1) of the Interpretation of Legislation Act 1984 (Vic).[56] In oral argument, the Minister submitted that any invalidity could be met by removing the words ‘either’ and ‘or after’ from cl 5.1.11, or alternatively removing the temporal aspect altogether, so that the clause read simply: ‘The owner(s) of the Project Land must enter into an agreement under section 173 of the Planning and Environment Act 1987 with the Moorabool Shire Council’.
[56]Relying on Department of Premier and Cabinet v Birrell (No 2) [1990] VR 51, 65-6 (Gobbo J); Clubb v Edwards (2019) 267 CLR 171, [140]-[141] (Gageler J).

Consideration

The Council’s argument would have force if the impugned clauses had the effect of compelling it to enter into an agreement under s 173 of the Planning Act with the owner of the site. However, I do not agree that they have that effect. Rather, the permission given in cl 4 of the Incorporated Document to use and develop the site as a spoil processing facility is conditional on the owner entering into an agreement with the Council. The obligation to enter into an agreement is imposed on the site owner, not the Council. The Council is free to determine whether it wishes to enter into an agreement and, subject to cll 5.1.12 and 5.1.13, on what terms.

The Incorporated Document provides that the use and development is to take place in two stages, the first before receipt of any tunnel spoil, and the second from the time spoil is received on the site. The use and development includes the works specified in cl 4.3, a number of which would have to occur before any trucks could start delivering spoil to the site. Clause 5.1.11 may be expressed to permit the development and use of the site to commence before entry into the required s 173 agreement, so that necessary preliminary works can proceed while the agreement is under negotiation.

The Council was concerned that this provision also has the effect that the site could be used to receive spoil without any agreement ever being reached, and with no mechanism to force agreement. I do not accept that the impugned provisions deprive the Council of any real bargaining power. To the contrary, the Council appears to me to be in a strong position to negotiate a satisfactory agreement with the site owner, for payment of the reasonable cost of upgrading, maintaining and repairing the roads that will carry the trucks delivering spoil to the site.

The primary reason for that view is that the Council is the responsible authority for the administration and enforcement of the Moorabool Planning Scheme. In the absence of any agreement ever being reached, the use and development of the site to receive spoil generated by the construction of the West Gate Tunnel project would be contrary to the Moorabool Planning Scheme. If the site were to receive tunnel spoil in circumstances where the owner was not negotiating with the Council in good faith, or where the Council had resolved not to enter into either of the agreements contemplated by the impugned clauses, it would be open to the Council to take enforcement action under the Planning Act. In particular, the Council could apply to the Tribunal for an enforcement order under Pt 6, Div 1 of the Planning Act, which may include an order to stop the use.[57] There would also be the prospect of a prosecution for an offence against s 126 of the Planning Act.
[57]Planning Act, s 119(b)(i).

In addition, it is not the case that there is no mechanism available to the Council to negotiate reasonable compensation for the wear and tear on its roads. The Council can stipulate terms acceptable to it, and provide those to the site owner in a proposed s 173 agreement for the purposes of cl 5.1.11. If agreement cannot be reached, the owner may apply to the Tribunal for an amendment to the proposed agreement, under s 184 of the Planning Act. The Tribunal may approve the agreement, with or without amendments.[58]
[58]Planning Act, s 184(2).

The impugned clauses are therefore permitted by ss 6(1)(b) and 6(2)(k) of the Planning Act, and are not inconsistent with or repugnant to the Local Government Acts or the Road Management Act.

Because I do not consider the impugned clauses to be invalid, it is not necessary to determine whether they can be severed from the Incorporated Document consistent with s 22 of the Interpretation of Legislation Act.

The Council’s third ground is not made out.

Disposition

None of the plaintiffs’ grounds have been made out, and so both proceedings must be dismissed. I will hear the parties on the question of costs.

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[2021] VSC 701

28 October 2021