Ned Kelly Centre Ltd v Australian Rail Track Corporation

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2023 01865

NED KELLY CENTRE LTD ACN 33 603 801 896	Plaintiff
v
AUSTRALIAN RAIL TRACK CORPORATION ACN 75 081 455 754	First Defendant
and
RURAL CITY OF WANGARATTA	Second Defendant
and
EXECUTIVE DIRECTOR HERITAGE VICTORIA	Third Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 July 2023
DATE OF JUDGMENT:	24 July 2023
CASE MAY BE CITED AS:	Ned Kelly Centre Ltd v Australian Rail Track Corporation
MEDIUM NEUTRAL CITATION:	[2023] VSC 421

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PRACTICE AND PROCEDURE — Interlocutory injunction — Application for injunctions restraining ongoing works on visitor centre and replacement bridge in Glenrowan Heritage Precinct — Permits issued for works under Heritage Act 2017 (Vic) — Works alleged to be contrary to Heritage Act 2017 (Vic) and Charter of Human Rights and Responsibilities Act 2006 (Vic) — Whether serious question to be tried — Whether balance of convenience favours granting injunction — Application dismissed — Heritage Act 2017 (Vic), ss 93, 101, 216, 217.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Flint, corporate counsel for the plaintiff
For the First Defendant	Mr B Chessell	Clayton Utz
For the Second Defendant	Mr P Chiappi	Maddocks
For the Third Defendant	Mr R Watters	Victorian Government Solicitor

TABLE OF CONTENTS

Heritage Act – relevant provisions............................................................................................. 5
Interlocutory injunctions - principles......................................................................................... 8
The Ned Kelly Centre’s case........................................................................................................ 9
Charter of Human Rights and Responsibilities Act – serious question to be tried........... 10
Tower project – serious question to be tried........................................................................... 12
Ned Kelly Centre’s submissions...................................................................................... 12
Council’s submissions....................................................................................................... 14
Consideration..................................................................................................................... 15
Site of the visitor centre....................................................................................... 16
Cumulative impacts............................................................................................. 19

Tower project – balance of convenience.................................................................................. 22
Tower project – conclusion........................................................................................................ 25
Bridge project – serious question to be tried........................................................................... 25
Ned Kelly Centre’s submissions...................................................................................... 25
ARTC’s submissions......................................................................................................... 27
Consideration..................................................................................................................... 29
Council consent to permit application.............................................................. 29
Description of landowners in permit application........................................... 31
Visual impact assessments.................................................................................. 32
Consideration of alternative options................................................................. 42
Claimed contravention of permit....................................................................... 47

Bridge project – balance of convenience.................................................................................. 51
Bridge project – conclusion........................................................................................................ 54
Disposition................................................................................................................................... 54

HER HONOUR:

The town of Glenrowan in Victoria’s north-east is the place where bushranger Ned Kelly was finally captured by police in June 1880. The other members of the Kelly Gang died during the ‘siege of Glenrowan’. Joe Byrne was shot by police, and Dan Kelly and Steve Hart died inside Ann Jones’ Glenrowan Inn, where the Gang had been waiting with a number of hostages. The police set fire to the Inn while they were still inside, and it burnt to the ground. Three civilians also died, including the publican’s thirteen year old son.

The train line that runs through Glenrowan was a feature of the events leading up to the siege. The Kelly Gang had planned to derail a train carrying police along a stretch of track east of the town, where the line makes a sweeping curve on a steep embankment. However, the train was stopped before Glenrowan, the police were warned of the plan, and instead surrounded and besieged the Inn.

The area where these events occurred is now the Glenrowan Heritage Precinct, which is listed on the Victorian Heritage Register established under the Heritage Act 2017 (Vic). The Precinct is listed on the Register because of its importance to the course of Victoria’s cultural history and its potential to yield archaeological remains.[1] It is also significant as a ‘place of cultural memory as the site of Ned Kelly’s “last stand” against the police while wearing his iconic armour’ and because of its strong association with the members of the Kelly Gang.
[1]Registered under Victorian Heritage Register Number H2000.

Glenrowan is in the Rural City of Wangaratta (the Council), which is currently building a new visitor centre for the Precinct. The visitor centre is located in an area known as ‘Lions Park’ on the southern side of the railway line, and is to include a viewing platform and interpretive displays. I refer to it in these reasons as the Tower project.

In May 2021, the Council applied to the Executive Director of Heritage Victoria for a heritage permit for the Tower project. Heritage Victoria issued the Tower permit on 2 September 2021, under s 102 of the Heritage Act. Work on the Tower project started in February 2022 and it is nearly complete, with an opening planned for late August 2023.

Separately, the Australian Rail Track Corporation (ARTC) is undertaking works to replace the Beaconsfield Parade bridge in Glenrowan (Bridge project). The Beaconsfield Parade bridge is the only rail crossing in the Glenrowan town centre, and connects the residential areas north of the railway line with the commercial area to the south. The existing bridge runs through the Precinct, with the site of Ann Jones’ Inn at its northern end.

The Bridge project is part of the larger Inland Rail project to improve Australia’s rail freight infrastructure, including to allow double-stacked freight trains to travel between Brisbane and Melbourne through regional Victoria. A ‘double-stacked’ train carries two layers of shipping containers and is about 7.1 metres high. The existing Beaconsfield Parade bridge is only 5.3 metres high, and at present a double-stacked train cannot pass under it. The Bridge project involves building a new bridge, and then demolishing the existing bridge. The new bridge is to be higher and longer than the existing bridge, and will also run through the Precinct.

In August 2021, ARTC applied to Heritage Victoria for a heritage permit for the Bridge project. Heritage Victoria sought further information, and received a number of submissions opposing the application, to which ARTC responded. Ultimately, on 9 August 2022, Heritage Victoria granted a permit for the Bridge project under s 102 of the Heritage Act (Bridge permit). Work on the Bridge project began in about November 2022 and is well advanced. The substructure works were completed in May 2023, construction of the new bridge is likely to be completed in late September 2023, and the entire project is scheduled for completion in December 2023.

The Ned Kelly Centre Ltd was incorporated in January 2015 as a public company limited by guarantee, and is a registered charity. Joanne Griffiths is the founding director of the Ned Kelly Centre, and a fourth generation descendant of Ned and Dan Kelly’s parents, John and Ellen Kelly. Ms Griffiths deposes that the Ned Kelly Centre was founded ‘to represent the interests of Kelly family descendants’, including by ’researching, protecting, and promoting the important historical and Kelly related cultural heritage in north-east Victoria to benefit present and future generations’. According to its constitution, the objects of the Ned Kelly Centre include promoting and preserving items of Australian movable cultural heritage that relate to ‘Kelly Country’, Ned Kelly and the Kelly clan, and to the Irish settlers of north-east Victoria, and promoting the history and heritage of the geographic area colloquially known as ‘Kelly Country’.

In this proceeding, commenced on 5 May 2023, the Ned Kelly Centre seeks a range of general relief against Heritage Victoria in relation to the preservation of cultural heritage related to the Kelly Gang and the wider Kelly family. Specifically in relation to the Tower project and the Bridge project, it seeks orders against:

(a) the Council, permanently restraining it from continuing the Tower project; and

(b) ARTC, permanently restraining it from continuing the Bridge project,

subject to ‘making safe’ and restoration of the areas affected.

On 30 June 2023, the Ned Kelly Centre filed a summons seeking interlocutory relief requiring Heritage Victoria to take action restraining works under the Tower permit and the Bridge permit, or alternatively orders under s 216 of the Heritage Act to that effect. I heard that summons in the Practice Court on 6 July 2023.

While the primary relief sought in the summons was against Heritage Victoria, it quickly became apparent that what the Ned Kelly Centre sought were interlocutory injunctions restraining the Council from undertaking any further work in relation to the Tower project, and restraining ARTC from undertaking any further work in relation to the Bridge project. The Council and ARTC defended the summons, each contending that the application for interlocutory relief should be refused. Heritage Victoria adopted a Hardiman position in relation to the summons,[2] and provided the officer report and recommendation to the Executive Director dated 2 September 2021 in relation to the Tower permit (Tower officer report) and the officer report and recommendation to the Executive Director dated 9 August 2022 in relation to the Bridge permit (Bridge officer report).
[2]In accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6.

In addition to those reports and the originating documents, I also had the following material before me at the hearing of the summons on 6 July 2023:

(a) two affidavits of Ms Griffiths dated 22 April and 2 June 2023 respectively filed on behalf of the Ned Kelly Centre;

(b) an affidavit of Edward Walker dated 5 July 2023 filed on behalf of ARTC;

(c) an affidavit of Brendan McGrath dated 5 July 2023 filed on behalf of the Council;

(d) written submissions of the Ned Kelly Centre, ARTC and the Council; and

(e) a list of the Ned Kelly Centre’s authorities.

The affidavits exhibited a large number of documents relevant to the applications for the Tower permit and the Bridge permit, including the heritage impact statements provided in support of the applications, and the submissions made by Ms Griffiths against granting the permits. I also have the advantage of the Tower officer report and the Bridge officer report, which provide evidence of Heritage Victoria’s reasons for granting both permits.

For the reasons that follow, I have decided not to grant either of the interlocutory injunctions sought by the Ned Kelly Centre. Due to the wealth of documentary evidence relied on at the hearing of the summons, these reasons are more detailed than would ordinarily be the case at this stage of a proceeding.

Heritage Act – relevant provisions

The Heritage Act was enacted with a purpose of providing for the protection and conservation of the cultural heritage of the State of Victoria.[3] It establishes the Register for the registration of places and objects of cultural heritage significance,[4] and a process for determining the places and objects to be included in the Register.[5]
[3]Heritage Act 2017 (Vic), s 1(a).
[4]Heritage Act, ss 23–24.
[5]Heritage Act, Pt 3, Divs 2–5.

Part 5 of the Heritage Act prohibits the removal, relocation or demolition, damage or despoiling, development or alteration, or excavation, of all or any part of a registered place.[6] However, these prohibitions do not apply to works or activities carried out in accordance with a permit issued under Pt 5 of the Heritage Act.[7]
[6]Heritage Act, ss 87(1), 88(1), 89(1).
[7]Heritage Act, ss 87(4)(a), 88(4)(a), 89(4)(a).

Section 93 provides for permit applications:

Permit applications
(1) A person may apply to the Executive Director for a permit to carry out works or activities in relation to a registered place or registered object.
(2) A permit application must—
(a) be made in the prescribed form; and
(b) be accompanied by the prescribed fee (if any).

(3) If the applicant is not the owner or government asset manager of the registered place or registered object, the applicant must obtain the written consent of the owner or government asset manager of the place or object.
(4) An applicant may withdraw a permit application at any time.

The permit application form prescribed for the purposes of s 93(2)(a) is the form set out in Sch 6 of the Heritage Regulations 2017 (Vic). Item 11 of the prescribed form provides for the consent of the owner or government manager to the works or activities specified in the application. Item 13, the final item on the form, is the following applicant statement:

I state that I am authorised to make this application in relation to the above property or object, and that the information supplied in this application is accurate and correct. I acknowledge that authorised officers appointed by the Executive Director or any member of the Heritage Council may inspect the heritage place or heritage object to assess this application in accordance with the Act.

Notice of an application must be given in certain circumstances,[8] in which case any person may make a written submission to Heritage Victoria in respect of the application.[9] The municipal council for the area in which the registered place is located must also be given notice of the application, and may make a written submission.[10] Section 98 enables Heritage Victoria to request an applicant to provide any additional information considered necessary to assist the determination of the permit application.
[8]Heritage Act, s 94(1), (4).
[9]Heritage Act, s 95.
[10]Heritage Act, s 100.

Section 101 provides for the determination of permit applications:

Determination of permit applications
(1) After considering an application the Executive Director may—
(a) approve the application and—
(i) issue the permit for the proposed works or activities; or
(ii) issue the permit for some of the proposed works or activities specified in the application; or

(b) refuse the application.

(2) In determining whether to approve an application for a permit, the Executive Director must consider the following—
(a) the extent to which the application, if approved, would affect the cultural heritage significance of the registered place or registered object;
(b) the extent to which the application, if refused, would affect the reasonable or economic use of the registered place or registered object;
(c) any submissions made under section 95 or 100;
(d) if the applicant is a public authority, the extent to which the application, if refused, would unreasonably detrimentally affect the ability of the public authority to perform a statutory duty specified in the application;
…
(f) any matters relating to the protection and conservation of the registered place or registered object that the Executive Director considers relevant.

(3) In determining whether to approve an application for a permit, the Executive Director may consider—
(a) the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is—
(i) included in the Heritage Register; or
(ii) subject to a heritage requirement or control in the relevant planning scheme; or

(b) any other relevant matter.

Under Pt 8 of the Heritage Act, Heritage Victoria may make various orders for the protection of registered places. These include a ‘stop order’ requiring a person to immediately stop specified works or activities, which may be issued under s 165 where ‘the Executive Director is satisfied that there are reasonable grounds for believing that the registered place … could be harmed unless a stop order is issued’.[11]
[11]Heritage Act, s 165(1)(c).

Part 10 of the Heritage Act provides for enforcement and legal proceedings. Division 3 provides for orders of the Supreme Court, as follows:

215 Definitions
In this Division—
contravention includes a threatened or an apprehended contravention;
this Act includes a permit, consent or exemption under this Act or the conditions of a permit, consent or exemption under this Act.

216 Remedy or restraint of contraventions of this Act
The Heritage Council, the Executive Director, the Director of Public Prosecutions or any other person may bring proceedings in the Supreme Court for an order to remedy or restrain a contravention of this Act.
217 Orders of the Supreme Court
(1) The Supreme Court may make any order it considers fit to remedy or restrain a contravention of this Act if the Supreme Court is satisfied that—
(a) this Act has been contravened; or
(b) this Act will be contravened unless restrained by order of the Court.

(2) Without limiting the powers of the Supreme Court under subsection (1), an order made under that subsection may—
(a) if the contravention of this Act comprises the construction of a building or the carrying out of works or activities, require the demolition or removal of the building or works; or
(b) if the contravention of this Act has the effect of altering the appearance or physical nature of a place or object, or the state of land on which there is a registered place or registered object, require the restoration or reinstatement, so far as is possible, of the place or object to the condition it was in immediately before the contravention.

(3) An order made under subsection (1) has effect and may be enforced as if it were an order or judgment made by the Supreme Court under the Supreme Court Act 1986.

Interlocutory injunctions - principles

Whether to grant interlocutory injunctive relief is a matter of discretion. In the exercise of that discretion, the Court needs to be satisfied that there is a serious question to be tried, and that the balance of convenience favours granting the injunction.[12]
[12]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65, [4]; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J).

The two inquiries are interrelated. In particular, a plaintiff may have to demonstrate strong prospects of success before the Court will grant an interlocutory injunction that will have serious practical effects for the defendant and third parties. The Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party which failed to establish its right at the trial, or in failing to grant an injunction to a party who succeeded at trial.[13]
[13]Bradto, [35].

The Ned Kelly Centre’s case

The Ned Kelly Centre contends that the works being undertaken on the Tower project and the Bridge project contravene the Heritage Act because the Tower permit issued in September 2021 and the Bridge permit issued in August 2022 were both vitiated by jurisdictional error and are therefore invalid. As I understand it, this approach is based on the proposition that a decision affected by jurisdictional error is a nullity and has no legal effect.[14]
[14]This is not a straightforward proposition, because an invalid decision that lacks legal effect can nevertheless have legal consequences: see eg, New South Wales v Kable (2013) 252 CLR 118, [20]–[23] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), [52] (Gageler J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19, [18]–[20].

However, this is not a judicial review proceeding. It is not brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and does not directly challenge Heritage Victoria’s decisions to grant the Tower permit and the Bridge permit. It was commenced well outside the 60 day time limit prescribed by r 56.02(1) of the Rules, which may not be extended except in special circumstances.[15]
[15]Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 56.02(3).

Rather, the Ned Kelly Centre brings the proceeding under s 216 of the Heritage Act, which enables ‘any other person’ to bring a proceeding in the Supreme Court for an order to remedy or restrain a contravention of the Heritage Act. It says that it has standing under this provision, without having to establish a special interest in the subject matter of the proceeding.[16] The defendants did not contend otherwise.
[16]Cf Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Maguire v Parks Victoria [2020] VSCA 172. It is not necessary to address the Ned Kelly Centre’s alternative submission that it has a special interest in the management of the Precinct and the protection of the cultural heritage associated with it.

The originating motion identifies the following grounds on which the Ned Kelly Centre says that both permits are invalid:

1. The material in the Heritage Impact Statements (“HIS”) finally relied upon in the said permit applications of each of the First and Second defendants was misleading and/or intended to mislead, and was filed and relied upon contrary to the Heritage Regulations 2017 requiring declarations that the material filed is true and accurate, being declarations that were given but were false regarding substantive material for consideration of the delegate in granting the permits, and that failed to take into account the human rights of the cultural group of Kelly Family descendants most heavily affected.
2. Each decision of the Executive Director to grant permits for the works of the First and Second Defendants is vitiated by reason that the purported exercise of his discretion:
a) was based on applications not made in accordance with the Act and/or the Act’s regulations, and accordingly outside the jurisdiction of the delegate for consideration,
b) was based on applications made to frustrate the purpose of the Act to protect heritage,
c) relied on material supplied by the respective applicants that was false and misleading and constituting a fraud at equity upon the decision maker; (and/or in the alternatives):
d) failed to be a proper exercise of discretionary powers under the act consistent with its purpose.
e) was a decision so unreasonable no reasonable decision-maker could have made it,
f) was infected by bias,
g) failed to take into account relevant information and/or took into account irrelevant information (including false and misleading material),
h) failed to take into account the cultural values and human rights of a particular cultural group (descendants) pursuant to the Charter, and is inconsistent with those rights,
i) was obtained in contravention of the Heritage Regulations and of the purpose of the Act.
j) was not a bona-fide or genuine exercise of the discretion.

The written and oral submissions of the Ned Kelly Centre in support of its application for interlocutory relief focused on a smaller number of specific grounds in relation to each decision to grant a permit that each permit was invalid. These grounds are discussed further below.

Charter of Human Rights and Responsibilities Act – serious question to be tried

The Ned Kelly Centre relies on the Charter of Human Rights and Responsibilities Act 2006 (Vic), specifically the right in s 19(1) for persons with a particular cultural background, in community with other persons of that background, to enjoy their culture. It claims that Heritage Victoria did not give proper consideration to human rights in deciding to grant the permits and that the works being carried out on the Tower project and the Bridge project are incompatible with its human rights.[17] The Ned Kelly Centre seeks orders under s 217 of the Heritage Act on the additional ground that the grant of the permits was unlawful under s 38(1) of the Charter.[18]
[17]Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1).
[18]Charter, s 39(1).

At this interlocutory stage, the Ned Kelly Centre has not established a serious question that it is entitled to relief based on Charter grounds. There are three reasons why that is so.

First, the Ned Kelly Centre is a corporation, and does not itself have human rights.[19]
[19]Charter, s 6(1).

Second, there is at present no evidence that the Ned Kelly Centre represents a cultural group whose right to enjoy their culture is engaged by Heritage Victoria’s decisions to grant the Tower permit and the Bridge permit. The objects set out in the Ned Kelly Centre’s constitution do not include acting as a representative body for Kelly descendants or any other group, and there are no eligibility criteria for membership. Any adult person or corporation may apply to become a member, and the Board has an absolute discretion whether to admit or reject the application.

While Ms Griffiths deposed that the Ned Kelly Centre was founded ‘to represent the interests of Kelly family descendants’, there is no evidence about its members or their activities, individually or as a group. More significantly, at this point there is no evidence that Kelly family descendants share a distinctive culture that they enjoy in community with each other, so as to attract the protection of s 19(1) of the Charter. The claims made in submissions that there is a distinctive cultural group that treats the Precinct ‘as commemorative in nature, having spiritual and sacred significance’, and that the charred timber cladding of the new visitor centre is distressing and offensive to that group, are at present no more than assertions. Ms Griffiths is certainly passionate and determined in her efforts to protect and preserve Kelly related cultural heritage, but her affidavits told me nothing about any cultural practices she shares with other descendants of the Kelly family.

Third, there is the vexed question of the validity of a decision made contrary to s 38(1) of the Charter. It is settled that such a decision is unlawful and may be set aside on judicial review. It is a much more controversial proposition that a decision made in breach of s 38(1) is invalid for jurisdictional error, and has no legal effect.[20]
[20]As to the distinction between unlawful and invalid, see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [91]–[93].

Existing authority is against that proposition. In Bare v Independent Broad-based Anti-corruption Commission,[21] Warren CJ held that a breach of s 38(1) of the Charter did not amount to jurisdictional error, and that there was no indication that the legislature intended that a decision by a public authority that did not properly consider a Charter right, or that breached a Charter right, would be invalid.[22] Justices of Appeal Tate and Santamaria also doubted that a breach of s 38(1) amounted to jurisdictional error, although neither found it necessary to decide the question.[23] The Ned Kelly Centre’s submissions at the interlocutory hearing did not address this issue, which will be a significant obstacle for its Charter claims at the trial of the proceeding.

Tower project – serious question to be tried

[21](2015) 48 VR 129 (Bare).

[22]Bare, [139]–[153] (Warren CJ).

[23]Bare, [378]–[397] (Tate JA), [617]–[626] (Santamaria JA).

Ned Kelly Centre’s submissions

I understood the Ned Kelly Centre to contend that the Tower permit is invalid for three specific reasons.

First, the Council’s permit application incorrectly identified ARTC as the owner of the relevant land, when it is in fact owned by VicTrack. The application did not include a consent to the works from VicTrack, as required by s 93(3) of the Heritage Act. As I understood it, the argument was that this mistake or omission invalidated the Council’s permit application and that, as a result, the decision to grant the Tower permit was also invalid.

Second, the Ned Kelly Centre said that the Archlink heritage impact study (Archlink HIS)[24] submitted to Heritage Victoria by the Council misstated the contents of prior heritage impact studies of the Precinct, specifically the 2002 Glenrowan Masterplan (GMP)[25] and the 2018 Conservation and Landscape Management Plan (CLMP) prepared by Lovell Chen.[26] According to the Ned Kelly Centre, the Archlink HIS falsely purported not to reassess or override the findings of the GMP and CLMP, while making findings and recommendations directly opposed to their restrictions on building in the key open space and ground level through-views. The Ned Kelly Centre further contended that the Archlink HIS misrepresented the location, size and scale of the proposed visitor centre for which the permit was sought and ultimately granted.
[24]Sarah Myers, Dr Sarah Mirams and Monique Corbett, Archlink, Ned Kelly Visitor Centre - Glenrowan (Heritage Impact Statement, 21 April 2021) (Archlink HIS).
[25]Glenrowan Steering Committee et al, Rural City of Wangaratta, Glenrowan Masterplan (Final Report, 4 April 2002) (GMP).
[26]Anita Brady, Lovell Chen, Glenrowan Heritage Precinct (Conservation and Landscape Management Plan, June 2018) (CLMP).

The Ned Kelly Centre characterised these claimed misrepresentations as a ‘fraud in equity’ on the part of the Council, and said that the fraud vitiated Heritage Victoria’s decision to grant the Tower permit. It relied on the High Court’s decision in SZFDE v Minister for Immigration and Citizenship,[27] and the aphorism that ‘fraud unravels everything’. I understood the argument to be that misleading statements in the Archlink HIS invalidated the permit application, the decision to approve the Tower permit, and everything done in reliance on the permit.
[27](2007) 232 CLR 189, [8]–[27] (SZFDE).

Third, the Ned Kelly Centre argued that the Council’s permit application did not address the cumulative impact of the Tower project and the Bridge project on the Precinct. The submission was that the Council had falsely represented that the proposed new bridge was only a possibility, concealing from Heritage Victoria that the Council had consented to the Bridge project on 3 May 2021. Further, the Ned Kelly Centre said that the Council falsely represented that the Bridge project would have only minor potential impact, when its own assessment was that it would have a major impact. This also was characterised as a fraud that vitiated the decision to grant the Tower permit.

Council’s submissions

As to the mistake in identifying the owner of the relevant land, the Council submitted that nothing flowed from that mistake. It pointed to an exchange of emails between the Council and VicTrack in May 2021, which it said showed that VicTrack was aware of the permit application and implicitly consented to it. To the extent that the permit application did not comply with the requirements of the Heritage Act, the non-compliance did not result in the permit being void.

As to the claims that the permit application, in particular the Archlink HIS, was misleading, the Council responded that these claims go to matters of opinion rather than fact. As such, the information provided with the application could not be said to be objectively incorrect or misleading. Rather, they were issues for consideration by Heritage Victoria in assessing the permit application. The Council characterised the real complaint here as being that, after that assessment, Heritage Victoria came to a different view from that taken by the Ned Kelly Centre.

In relation to the claimed discrepancy between the Archlink HIS and the GMP and CLMP about the siting of the visitor centre, the Council noted that the CLMP expressly anticipated a development of that kind within the Precinct. The Council said that it was an issue for Heritage Victoria to evaluate whether the application was consistent with the CLMP. Ultimately, Heritage Victoria accepted the proposed siting of the visitor centre.

In relation to the cumulative impact of the Tower project and the Bridge project, the Council said that Heritage Victoria had both applications before it, was alive to the issue of cumulative impact, and ultimately determined to grant both permits. It was a matter for Heritage Victoria to be satisfied that the cumulative impact of both permits was acceptable, and it clearly was so satisfied.

Consideration

I do not consider that the Ned Kelly Centre has established a serious question to be tried on any of the three specific grounds identified.

As the Council accepted, the permit application misidentified the owner of the relevant land as ARTC, when it is in fact owned by VicTrack. The permit application did not include a consent from VicTrack to the works specified in the application, as required by item 11 on the prescribed application form in Sch 6 of the Heritage Regulations.

I do not see an arguable case that the mistake was material, in either a legal or a practical sense. Legally, there is no realistic possibility that identifying the owner as VicTrack rather than ARTC could have made a difference to Heritage Victoria’s assessment of the permit application.[28] The Tower officer report noted ARTC as the owner and listed its letter of consent among the documents included in the application. Beyond that, the ownership of Lions Park did not figure in the comprehensive assessment of the permit application that followed. Practically, the evidence is that VicTrack was aware of the permit application and acceded to it. This is reinforced by the fact that, since the Tower permit was granted, the works that it authorised have been carried out on VicTrack’s land without objection, almost to the point of completion.
[28]Applying the test of materiality 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 v Minister for Immigration and Border Protection (2021) 273 CLR 506, [2], [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

Nor do I see an arguable case that the misidentification of the land owner somehow invalidated the permit application and hence the Tower permit itself. The Ned Kelly Centre did not attempt to demonstrate that it was a purpose of the Heritage Act and Regulations that a permit application that omitted or misdescribed information required by the prescribed form would be invalid, let alone that any such invalidity would flow to the permit that was granted by Heritage Victoria. I am unable to discern that purpose from the language of s 93, or from the scope and object of the Heritage Act as a whole.[29]
[29]Project Blue Sky, [93] (McHugh, Gummow, Kirby and Hayne JJ); see also Interpretation of Legislation Act 1984 (Vic), s 53.

As to the two ways in which the permit application was said to have been misleading, examination of the permit application and the further information provided by the Council in response to Heritage Victoria’s request does not disclose any serious question that the application involved impropriety, dishonesty, or bad faith that would amount to ‘fraud’ in the sense discussed in SZFDE.[30] Critically, the Tower officer report demonstrates that Heritage Victoria was not misled or deceived in relation to either matter. It was alive to the fact that the application proposed a different site for the visitor centre than was envisaged in the CLMP, and it was also concerned about the cumulative impact of the Tower project and the Bridge project. It made its own independent assessment of both of these matters before deciding to grant the Tower permit.

Site of the visitor centre

[30]SZFDE, [11]–[14].

In relation to the siting of the visitor centre, the CLMP adopted by the Council in 2018 stated that new development on the public land areas of the Precinct — including Lions Park — should generally be avoided, in order to reinstate its historic character. However:[31]

An exception to the above would be a new building, such as the ‘Kelly Centre’, which would enhance the interpretation of the precinct, and help draw more visitors to it. Such a building could be located in the precinct, but with sensitivity to its scale, form and placement. It should not dominate the precinct, while still being sufficiently recognizable as an interpretation and visitor facility. It should also have regard for avoiding or minimising impacts on views from Gladstone Street to the railway corridor, the reserve on the north side of the railway, or to the site of Ann Jones’ Inn. Similarly, such a building should not impact on views from the precinct to the site of McDonnell’s Tavern. Good design may be able to overcome these restrictions. Potential locations which are consistent with the above include:
o At or just outside the eastern edge or end of the precinct, on the north side of Gladstone Street; this would be on the main approach to the town, and precinct, from the east.
o At or just outside the western edge of the precinct, on the north side of Gladstone Street, which is the focus of the entry to the precinct before the commercial centre commences.
o A site on the south side of Gladstone Street would also be suitable, east or west of the precinct boundary.

[31]CLMP, 104.

In May 2021, in a pre-application letter to the Council, Heritage Victoria referred to the CLMP and indicated its preference that ‘the proposed location for the interpretation centre is re-considered, potentially to relocate the new built form further into the south west corner of the site to reduce impact on the railway paddock and to ensure that sufficient setback is maintained to the rail corridor to preserve the open reserve setting’. Heritage Victoria conveyed its preliminary view there was not yet a sufficient rationale or justification for the proposed location of the new centre.

The introduction to the Archlink HIS acknowledged previous heritage studies, including the CLMP, stating:[32]

Many studies have been prepared on the precinct previously including a Cultural Heritage Management Plan by Lovell Chen 2018. This report does not attempt to redefine or reassess the extent or cultural heritage significance of the Glenrowan Heritage Precinct nor to override or correct any advice provided in those previous assessments. It is acknowledged that those assessments were extremely thorough and remain valid for the Precinct as a whole. It was not within the scope of this project to collect any new historical evidence.
This report focusses on the area subject to the current proposal to develop a visitor centre being Lions Park. It presents the official statement of significance for the precinct with updates and notes from the CLMP (2018). It then offers further information about Lions Park in order to better understand the cultural heritage significance of this part of the place within the greater precinct, its current condition and use and constraints and opportunities as a result of the significance of the place. It also presents the proposed works, the siting and plans for the proposed visitor centre and alternate options that have been considered. The recommendations provided take into account previous policy guidelines and recommendations included in previous reports as well as current conditions, the significance of the place, the current proposal and legislation.

[32]Archlink HIS, 1.

The Archlink HIS explained in detail the considerations that lay behind the site selected for the visitor centre. It acknowledged that the CLMP had suggested a building in the south-west corner of Lions Park, and explained why the Council preferred a different site closer to the ‘key staging points of the action’.[33] Separately, it provided a response to the 28 specific policies set out in the CLMP.[34] The plans and drawings included with the permit application clearly show where in Lions Park it was proposed to build the visitor centre, as well as its scale and dimensions.[35]
[33]Archlink HIS, 26–7.
[34]Archlink HIS, 39–44.
[35]Archlink HIS, 23–4, 52, 55, 57–60; Content Studio, Glenrowan Ned Kelly Project Town Planning/Heritage Set, (Town Planning Drawing Set, 20 May 2021).

The Tower officer report reproduced some of those drawings, showing the site plan and the design and dimensions of the proposed visitor centre. The CLMP was among the reports and policy documents that were reviewed and relied upon by the reporting officer in undertaking the assessment. In relation to the location of the visitor centre, the officer provided the following assessment and comments:[36]
[36]Tower officer report, 16–7.

Policy 17 in the CLMP directs that any future works should seek to ‘re-establish, or enhance, key views of the siege site’ (p98). The CLMP notes that views of the siege site, particularly from Gladstone Street, Siege Street and Beaconsfield Parade are significant, and re-establishing or enhancing these views requires consideration of the treatment of the land between Siege and Gladstone Street, and adjacent to Beaconsfield Parade. The following is further noted in the CLMP in this regard (p98):
• The railway corridor was a central feature of the siege events and is centrally located in the precinct. Maintaining views of the tracks from these places today helps to conserve the legibility of the siege landscape and, for public interpretation, the chronology and spatial relationship of the events.
• The railway reserve/public land in the precinct to the north and south of the railway line, also represent an important ‘foreground’ to the siege sites and the siege aftermath. These areas were captured in the historical photography of the siege event, with their generally open character allowing the spatial relationship between the sites to be apprehended in the photographic record.
…
As part of pre-application discussions the reporting officer requested that the applicant investigate all options for the placement of the new building, including to relocate the building further into the south-west corner of the site. As summarised by the applicant above, while this relocation would reduce the visual impact on key views from Gladstone Street across to the siege site, it would hinder visibility within the interpretation centre itself to key sites/features within the precinct. The reporting officer is compelled by this argument, primarily as the new centre will form the new focal point within the precinct, and not just allow visitors to view key sites but to interpret them in a curated fashion. In this way, while the works will partially impact on views across the site from Gladstone Street, the new centre will enhance key views from within and allow for an increased understanding and interpretation of the key sites/features. Further, while the ‘open character’ of the southern paddock would be impacted, historical photography within the centre would still allow this historic character and condition to be understood.
…
To summarise, while the new building will partially obscure views from Gladstone Street towards key sites associated with the siege, views from within the centre will be interpreted and enhanced. Further, while the new building will impact on the open character of the southern paddock, the building will be setback from the rail corridor and the proposed sympathetic design and materiality of the building will mitigate associated visual impacts to a certain degree. As such, on balance, it is the reporting officer’s view that the extent to which the works will visually impact on the cultural heritage significance of the place are relatively low.

In light of the way the question of siting was addressed in the permit application, and resolved in the Tower officer report, I do not consider it arguable that the application was misleading or that the decision to grant the permit was vitiated by ‘fraud’. The Archlink HIS put the Council’s case for its preferred location and, after consideration, Heritage Victoria accepted that case. In other words, the Ned Kelly Centre has not made out a serious question to be tried that it was not open to Heritage Victoria to make the assessment that it did.

For completeness, I have read the letter to Ms Griffiths from the Council’s Chief Executive Officer, Brendan McGrath, dated 21 July 2022. I do not understand it to contain any admission that the permit application was misleading, or that it misinterpreted the CLMP.

Cumulative impacts

In relation to the cumulative impact of the Tower project and the Bridge project, it is relevant that the Council applied for the Tower permit in May 2021, before ARTC lodged its application for the Bridge permit in August 2021. However, at that stage the Council was already well aware of the proposed Bridge project, and of the cumulative impact of the two projects.

On 27 April 2021, before the Council lodged the Tower permit application, it had resolved to support the ARTC commencing State government approval processes for the Bridge project at Glenrowan, including applying for a heritage permit, subject to receiving the final designs for the site. The Council resolved to give in-principle support to the Bridge project, subject to the cumulative impact of the Bridge project and the Tower project being addressed to the satisfaction of Council and Heritage Victoria. The full text of the Council’s resolution was conveyed by letter to ARTC. A shorter letter to Heritage Victoria dated 3 May 2021 confirmed that the Council consented to ARTC applying to Heritage Victoria for the necessary permits for the Bridge project.[37]
[37]The Council’s resolution of 27 April 2021 and its letter to Heritage Victoria dated 3 May 2021 are reproduced at [93]–[94] below.

The Archlink HIS noted the potential for cumulative impacts of the two projects, as follows:[38]

There is the potential for cumulative impacts to affect the Glenrowan Heritage Precinct.
If the current proposal is not realised the disconnection of the site will remain. It is unlikely that any future proposal will be undertaken without first establishing this one as a first, smaller step that will help to fund additional improvements for the precinct into the future.
If the current proposal does go ahead, further improvements to the precinct will be possible due to the income generated.
If the rail overpass bridge is removed, this will further improve the views of the siege locations from the tower and the overall visual aesthetic of the area.
If the rail overpass bridge is made higher and more substantial, this would negatively impact the precinct by further impacting view lines and a disconnection with the eastern part of the rail line where siege events occurred. However, it is noted that it does and would continue to provide views of the siege locations when standing on it.

[38]Archlink HIS, 45.

The Tower officer report referred to this part of the Archlink HIS, and provided the following assessment and comments:[39]

It is noted that the applicant references works proposed by ARTC as part of the Inland Rail Project to potentially demolish and replace the Beaconsfield overpass bridge. Heritage Victoria is currently assessing a separate permit for these works (permit ref. P35524). In terms of cumulative change, the works proposed as part of this application represent the first major intervention into the place in recent decades. As has been considered previously under s101(2)(a), it is the reporting officers view that the impacts associated with the construction of a new interpretation centre are relatively low and can be absorbed by the place. Mitigative measures including the sensitive siting and design of the building, the positives associated with increased interpretation, and the landscape plan, contribute positive to this impact.
That being said, the reporting officer is concerned that works proposed under this permit application are confined only to the south of the precinct, which may in fact further disconnect it from the north which will remain undeveloped and in poorer condition. While the applicants assurance that the development of the new visitors centre in the south could lead to increased opportunities to develop in the north, the reporting officer maintains concerns regarding potential disconnection which cumulatively would impact on the cultural heritage significance of the place.
On this basis, it is recommended that the Executive Director take a cautious approach to further change within the precinct in the future, and gives serious consideration to future works which may ensure more consistent treatment across the entirety of the precinct, not just to the south. While the permit application currently under assessment in relation to works associated with the Inland Rail project are entirely separate to the works proposed as part of this application, there may be opportunities for synergies between the two projects to ensure that cumulative change within the precinct is positive rather than negative, including consistent landscaping treatment and improved interpretative outcomes that cohesively link the siege sites and increase the reading of place as a cultural landscape.

[39]Tower officer report, 28.

These observations were reiterated in the officer’s summary, immediately before the recommendation that a permit be issued for the Tower project.[40] At that time, the Bridge permit application was still under consideration. I note that when the Bridge officer report was prepared in August 2022, it squarely addressed the cumulative impact of the Bridge project and the Tower project.
[40]Tower officer report, 33–4.

Having regard to the attention that was paid to the cumulative impact of the two projects, I cannot see a serious question to be tried that the Tower permit application was misleading on this issue, or that Heritage Victoria might have been misled.

Tower project – balance of convenience

Even if there was a serious question to be tried in relation to the Tower project, the balance of convenience is overwhelmingly against granting the interlocutory relief sought by the Ned Kelly Centre.

After Heritage Victoria issued the Tower permit on 2 September 2021, the Council engaged Midson Construction Pty Ltd for the construction of the Tower project on 9 February 2022. A building permit was issued on 14 February 2022. In the meantime, architectural plans had been submitted to Heritage Victoria, and were approved on 21 February 2022. The Council subsequently entered into contracts for multimedia production and graphic design for the visitor centre.

Work on the Tower project is substantially complete. As at 5 July 2023, the structure had been built, the external facing public toilets had been opened, internal and external lighting was operational, seating and tables on the ground and first floors of the building were complete, the external fencing had been removed, and the landscaping, drainage, and roadworks had all been done. A partial certificate of occupancy for the ground floor of the visitor centre was issued on 9 June 2023. The only work that remained to be done was the waterproofing of the first floor roof, and the installation of graphics, interpretive panels, multimedia, and signage.

Mr McGrath anticipated that all work would be completed and a full certificate of occupancy would be issued on or around 21 July 2023. Onsite training for staff is scheduled from 1 August 2023, with a soft launch on 7 August 2023, and an official opening of the visitor centre to be held on 18 or 25 August 2023.

The undisputed evidence of Mr McGrath was that, if work on the Tower project was required to cease, the Council would incur an estimated one-off cost of $393,368, and weekly costs of $18,350. Council would have to close the recently opened public toilets in Lions Park, and postpone the planned opening of the visitor centre in August 2023. Mr McGrath was also concerned about the impact on projected tourism to the Glenrowan area, which the Tower project was intended to promote.

The Ned Kelly Centre did not proffer the usual undertaking as to damages, on the basis that it would be meaningless to proffer an undertaking that it did not have the financial means to meet. It relied on WOTCH Inc v VicForests (No 2),[41] in which the plaintiff had proffered the undertaking but conceded that it was not, in reality, in a position to satisfy an order as to damages. In that case, the plaintiff had demonstrated that there was a serious question to be tried, and the balance of convenience otherwise favoured granting the injunctions sought. I understood the Ned Kelly Centre to contend that no undertaking should be required given the public interest in preserving the cultural heritage of the Precinct.
[41][2020] VSC 99, [145]–[148], citing Environment East Gippsland Inc v VicForests [2009] VSC 386, [101].

The Ned Kelly Centre also relied on evidence that it had forewarned the Council of its intention to take legal action in relation to the invalidity of the Tower permit. It said that the Council had taken the risk of proceeding with the Tower project in spite of that warning, and that it was untoward of the Council to now claim that it would suffer a financial penalty if it was required to cease work on the project.

While the Ned Kelly Centre has maintained its opposition to the Tower project since the Tower permit was issued in September 2021, I cannot see that it expressly warned the Council at any time that it would take legal action and seek an injunction to restrain work from continuing. The relevant events are as follows:

(a) Ms Griffiths submitted a detailed question to the Council’s February 2022 meeting, impugning the accuracy of the Archlink HIS.

(b) On 6 March 2022, the Ned Kelly Centre wrote to Mr McGrath, providing further information about the basis for Ms Griffiths’ question. It asked the Council to immediately suspend works, and noted that continuing works may be an offence under the Heritage Act and other legislation. Mr McGrath responded on 17 March 2022, rejecting the claims that the Tower permit process was flawed, and confirming that the Council would not be suspending work on the Tower project.

(c) Ms Griffiths submitted a series of further questions to the Council for its 28 June 2022 meeting. These questions reiterated the Ned Kelly Centre’s position that the Council’s application for the Tower permit was misleading, and asked when Council would ‘do the right thing’ and cease the works. Mr McGrath replied in a letter dated 21 July 2022, rejecting the allegations that it had purposefully misled anyone, and again confirming that it would not suspend works. He provided a similar response to a separate set of questions submitted by Anthony X Griffiths.

(d) Ms Griffiths appears to have raised her objections to the Tower permit with the Ombudsman in about October 2022. In May 2023, the Ombudsman declined to take any action.

(e) The Ned Kelly Centre commenced this proceeding on 5 May 2023, and filed its summons seeking interlocutory relief on 30 June 2023.

The Council made clear its intention to continue work on the Tower project, in Mr McGrath’s letters of 17 March 2022 and 21 July 2022. Despite that response, the Ned Kelly Centre delayed taking legal action until May 2023. It did not seek interlocutory injunctions for almost a year after Mr McGrath’s letter of 21 July 2022.

There is no evidence that explains this delay on the part of the Ned Kelly Centre. In oral submissions, it said that it had not had the financial resources to engage lawyers to bring the proceeding, before its corporate counsel volunteered to represent it pro bono. This claim found no support in the affidavit evidence relied on by the Ned Kelly Centre, which said nothing about its financial situation. Ms Griffiths deposed that in April 2022 she commenced enquiries seeking pro bono legal assistance and advice, but was unable to afford or find representation at that time. She did not say anything about her attempts to secure legal representation after April 2022.

In summary, the Council commenced the works authorised by the Tower permit in February 2022. The Tower project is all but complete, and the opening of the visitor centre is scheduled to take place next month. An order requiring it to cease work on the project pending trial would expose the Council to costs in excess of $400,000, in circumstances where the Ned Kelly Centre has not proffered the usual undertaking as to damages. In the face of the Ned Kelly Centre’s concerns about the Tower permit application process, and the Archlink HIS, the Council confirmed in March and July 2022 that work would continue. For reasons that have not been explained, the Ned Kelly Centre waited until the Tower project was almost complete before seeking interlocutory relief. For all of those reasons, the balance of convenience is firmly against granting an injunction to restrain work from continuing pending determination of the proceeding.

Tower project – conclusion

The Ned Kelly Centre has not established a serious question to be tried in relation to the validity of the Tower permit, and in any event the balance of convenience is against granting interlocutory injunctive relief in relation to the Tower project. In addition, the Ned Kelly Centre’s long and unexplained delay in seeking that relief would have been a strong discretionary consideration against granting relief, had any case for relief been made out.

Bridge project – serious question to be tried

Ned Kelly Centre’s submissions

The Ned Kelly Centre contended that the Bridge permit is invalid for four specific reasons.

First, the Council’s letter of consent dated 3 May 2021, provided by the Council as a relevant landowner, contradicted and was not authorised by the Council’s resolution of 27 April 2021. That resolution gave only in-principle support to ARTC commencing the approval process for the Bridge project. It was also subject to conditions that were yet to be fulfilled, including assessment of the cumulative impact of the Tower project and the Bridge project to the satisfaction of Council and Heritage Victoria, and the provision of final designs. The resolution was passed on the basis that the new bridge would be ‘directly west of the existing bridge’, which did not match the design ultimately submitted by ARTC with its permit application in August 2021.

The Ned Kelly Centre argued that the letter of consent purported to be unconditional and was therefore false and misleading. It said further that, on 20 May 2021, the Council retracted its ‘full’ consent in a letter to ARTC, reverting to in-principle support subject to the fulfillment of conditions. Heritage Victoria determined the Bridge permit application based on the purported full consent of the Council, although it was not a consent to the plans or materials relied upon by ARTC.

Second, the Bridge permit application falsely identified the owners of the relevant land as ARTC’s project manager Mr Dinesh Batra and the Council’s Director Development Services, Mr Stephen Swart. The correct owner of the rail corridor component of the land was VicTrack, not Mr Batra or the ARTC. Mr Swart did not own any of the affected land, although the Council is or will be the owner of some of the relevant land to the north of the rail corridor. The Ned Kelly Centre contended that the details of the land owners provided with the Bridge permit application were therefore misleading and in breach of the Sch 6 certification.

Third, the Biosis heritage impact statement dated 25 August 2021 (Biosis HIS) that was submitted with the Bridge permit application concluded that there would be high and unmitigable visual impact on the whole of the Precinct. It said that the taller and longer bridge would have an adverse impact on the Precinct, particularly at the northern end, where the raised road would impact views to and from the Ann Jones’ Inn site and retaining walls would introduce new elements.

This assessment in the Biosis HIS was contradicted by a later ARTC authored heritage impact statement dated 29 October 2021 (ARTC HIS), which rated the visual impact of the proposed new bridge on the Precinct as ‘moderate’. Further, ARTC’s response to submissions dated 31 May 2022 (ARTC RTS) falsely stated that the visual impact of the bridge would be mitigated by landscaping measures that were not approved by Heritage Victoria. The Ned Kelly Centre submitted that the ARTC HIS and the ARTC RTS were false and misleading and a fraud in equity on Heritage Victoria.

Fourth, ARTC was said to have given false and misleading information ruling out alternatives to the proposed development, when it had not considered tunnelling underground as an alternative to the construction of a new bridge. The Ned Kelly Centre said that tunnelling was the one option that would have preserved the heritage of the Precinct, but it had not been properly considered by ARTC.

Further, the Ned Kelly Centre claimed that, even if the Bridge permit was valid, work on the Bridge project had not been carried out in accordance with the Bridge permit. This complaint related specifically to a claim by the Ned Kelly Centre that archaeological artefacts had been uncovered during excavation works in March 2023, which Ms Griffiths believed to be remnants of a line of fence posts dating from the Kelly era, and which she said had been damaged and concealed by ARTC and its contractor. Ms Griffiths notified Heritage Victoria about these finds and asked it to issue a stop order in order to preserve them, which it had declined to do.

ARTC’s submissions

ARTC began by observing that it is no small thing to allege fraud, and said that the case advanced by the Ned Kelly Centre fell far short of establishing a serious question to be tried in relation to any of the matters that it alleged were misleading and fraudulent.

In relation to the first matter, the Council’s consent to the Bridge permit application, ARTC relied on the terms of the Council resolution of 27 April 2021 and said that the letter of consent dated 3 May 2021 faithfully conveyed that resolution. ARTC refuted the suggestion that the Council had retracted its consent to ARTC seeking heritage permission. It said that the letters relied on by the Ned Kelly Centre related to a separate statutory process, specifically a planning scheme amendment related to the Bridge project. On that basis, ARTC said that the first allegation of fraud was misconceived.

ARTC did not specifically address the second matter in its submissions. However, it submitted that the owners of the relevant land did expressly provide their consent to the Bridge permit application, relying on an affidavit of Edward Walker, ARTC’s General Manager of Victorian and South Australian Projects dated 5 July 2023. Mr Walker’s affidavit exhibited the Council’s letter of consent dated 3 May 2021 and a letter of consent from VicTrack dated 27 July 2022.

In relation to the third matter, ARTC agreed that there were two heritage impact statements submitted in support of its application for the Bridge permit — the Biosis HIS and the ARTC HIS. It agreed that the Biosis HIS assessed the visual impact of the new bridge to be high, while the ARTC HIS assessed it to be moderate. The ARTC HIS was provided in response to a request for information from Heritage Victoria, and its authorship was clearly identified. Because it was not lodged with the initial permit application, there was no requirement for ARTC to make the applicant statement at item 13 of the prescribed application form described at [19] above. The different assessments of visual impact were due to the inclusion of new mitigation measures, such as additional vegetation, and modifying the design of the bridge to maximise east-west sight lines beneath the bridge and reduce its visual bulk.

ARTC submitted that this sequence of events was known to Heritage Victoria, and could not have given rise to a fraud on the part of ARTC. In particular, Heritage Victoria had the Biosis HIS before it at all times, and the ARTC HIS was clearly identified as having been prepared by ARTC. The fact that the two documents made different assessments of an inherently subjective matter was not a basis to say that the ARTC HIS was false or misleading. Ultimately, Heritage Victoria made its own assessment of the permit application, bringing its own expertise to bear. ARTC characterised the Ned Kelly Centre’s case as an impermissible attempt to reagitate the merits of Heritage Victoria’s decision to grant the permit.

In relation to the fourth matter, the claim that false and misleading information was given about the alternatives considered, ARTC referred to the detailed explanation of the various alternatives in the ARTC RTS. It also referred to the Bridge officer report, which set out the project alternatives.

In relation to the claim that the works have been carried out contrary to the Bridge permit, ARTC relied on Heritage Victoria’s reasons for deciding not to issue the stop order requested by Ms Griffiths. Those reasons included that the materials provided by Ms Griffiths did not establish any non-compliance by ARTC with the conditions of the Bridge permit. ARTC also referred to the detailed archaeological management plan in place for the Bridge project, and evidence of Mr Walker as to the implementation of that plan.

Consideration

I am unable to conclude that the Ned Kelly Centre has established a serious question to be tried that the Bridge permit is invalid, or that work on the Bridge project has not been carried out in accordance with the permit. I have carefully considered the several ways in which the ARTC’s permit application and supporting material were claimed to have been false and misleading, and do not regard any of those claims to be tenable. With the benefit of the Bridge officer report, it is not arguable that Heritage Victoria was in fact misled in any of the ways contended by the Ned Kelly Centre.

Council consent to permit application

As to the first matter, the Council’s letter of consent of 3 May 2021 is entirely consistent with the resolution adopted by the Council at its meeting on 27 April 2021. The resolution was, relevant to the Bridge project:[42]
[42]The resolution also concerned proposed works in the Wangaratta station precinct, which are not relevant here.

That Council:
1. Supports the ARTC commencing State government approval processes for works at Glenrowan … as part of the Inland Rail Project, subject to receiving the final designs for each site (which is not currently available). This support includes:
•land manager/owner consent to apply for Heritage Victoria permits for proposed works at Glenrowan …
•support for the commencement of a Ministerial Planning Scheme Amendment which will provide planning approval for the project.

2. Adopts the following position on the Inland Rail project for locations within the Rural City of Wangaratta:
•That ARTC continue to engage in meaningful consultation with the community and local agencies prior to finalising designs.
…
•Supports, in principle, the ARTC’s proposal for the replacement of the existing Beaconsfield Parade bridge at Glenrowan with a new bridge directly to the west of the existing bridge, subject to:
–    access being provided to both ends of Woolshed Road;
–    minimal tree removal and the protection of amenity along the railway line;
–    acceptable bus, long vehicle and car parking arrangements, and suitable vehicle and pedestrian access to these parking areas, being delivered as part of the Inland Rail project;
–    the cumulative impact of the Glenrowan bridge project and the Ned Kelly Glenrowan project being addressed to the satisfaction of Council and Heritage Victoria.

The Council’s letter of consent dated 3 May 2021 was addressed to Heritage Victoria, and signed by Stephen Swart, the Council’s Director — Development Services. The letter said, in full:

TO WHOM IT MAY CONCERN
Permit Application Inland Rail Project, works at Wangaratta Railway Station Complex (H1597) and Glenrowan Heritage Precinct (H2000)
As part of the Inland Rail project the Australian Rail Track Corporation (ARTC) is proposing to undertake works at the above places on the Victorian Heritage Register.
On 27 April 2021 the Rural City of Wangaratta Council resolved to support the ARTC commencing approval processes for works at the above places as part of the Inland Rail Project, subject to receiving the final designs for each site (which is not currently available). This support includes “land manager/owner consent to apply for Heritage Victoria permits for proposed works at Glenrowan and Wangaratta”.
Based on this resolution, I confirm that Council consents to the ARTC applying to Heritage Victoria for the necessary permits to allow for works to be completed at the Glenrowan Heritage Precinct as part of the Inland Rail Project.
Please do not hesitate to contact me if you have any queries.

To the extent that the Council’s consent was conditional on receiving the final designs for the Bridge project, there is nothing to suggest that this condition was not met. Council officers expressed some impatience at a meeting on 7 December 2021 with representatives of ARTC and its principal contractor, McDonnell Dowell. Preliminary designs provided to the Council were the subject of an assessment by Scope Project Consulting dated 21 January 2022, which identified a number of matters of concern. There were regular meetings and communications between ARTC and the Council during the permit application process, during which the Council was able to raise these concerns. The Council did not object to the grant of the Bridge permit, and did not at any stage withdraw its consent to the permit application.

Description of land owners in permit application

It was not in dispute that the Council and VicTrack each own part of the land in the Precinct for which the Bridge permit was sought.

In relation to the land owned by the Council, it was specious to contend that the permit application was false and misleading because it named Mr Swart and not the Council as the relevant landowner. The permit application cannot be understood that way if it is read together with the Council’s letter of consent, which was submitted with the application along with the relevant land title information.

In relation to the land owned by VicTrack, for the reasons given in relation to the Tower permit,[43] the omission of VicTrack as a relevant landowner did not have the result that the application for the Bridge permit was invalid. In addition, VicTrack later communicated its consent to the application in a letter to Heritage Victoria dated 27 July 2022.
[43]See [50] above.

Even if the information in the permit application about land ownership had the potential to mislead, it is clear that Heritage Victoria was not in fact misled. The Bridge officer report recorded that ‘The Glenrowan Heritage Precinct includes various parcels of land in public and private ownership. Owner consent for this application has been provided by VicTrack, Australian Rail Track Corporation, and Rural City of Wangaratta’.

Visual impact assessments

I do not consider it arguable that the different assessments of visual impact in the Biosis HIS and the ARTC HIS were false or misleading. It is also not the case that the Biosis HIS assessed the visual impact of the new bridge to be high and unmitigable. The assessment was as follows:[44]
[44]Biosis, Glenrowan Heritage Precinct (H2000) — Heritage Impact Statement P34387 (Heritage Impact Statement, 25 August 2021), 29–30 (Biosis HIS).

4.4 Visual impacts
The proposed new Beaconsfield Parade Bridge will be longer and taller than the existing one. The design involves a structure with seven spans rising to nine metres above the tracks (including the height of the rail along the shared use path) and with abutments at least two metres to the underside of the beams and four metres to the top of the handrails. A retaining wall is proposed along the line of the kerb and channel next to the Ann Jones’ Inn Site, extending to the abutment which will be located about 7 metres north of the north side of Siege Street. There will therefore be a concrete wall as a backdrop to the most common view of the Ann Jones’ Inn site, as viewed from Siege Street in front of the replica Inn sign. Renders showing views of the bridge from either side of Beaconsfield Parade and from Siege Street are shown in Figure 1.
The new structure will be about 158 metres long between abutments, with roadworks for embankments and approaches extending for about 250 metres between Gladstone Street and 15 metres south of Church Street.
The new bridge will involve vertical retaining walls for about 35 metres along Beaconsfield Parade north of the railway, and about 25 metres at the south end. It will be about 9.5 metres high at its highest point to the top of the concrete crash barriers, although the hand rail along the shared use path will be about 1 to 1.5 metres higher than the barrier. An indicative plan, elevation and section are shown in Figure 2, Figure 3 and Figure 4 respectively.
The present bridge which is about 25 metres between abutments, is a total length including approach embankments of 140 metres and is about 9.5 metres wide and 7 metres high at its highest point. As the ground drops towards the railway line, and the current road embankments splay out quite wide (up to 30 metres at the base), and are partially vegetated with native trees and shrubs, the existing bridge does not appear intrusive from the Siege site to the west. It does however create a barrier between the Stationmasters house and the Ann Jones’ Inn Site.
At present, the intersection of Siege Street and Beaconsfield Parade is about half to one metre higher at the crown of the road than the presumed natural ground surface, which formerly sloped away to the west and south of the Ann Jones’ Inn site. The new bridge, will be rise from north to south from two to three metres high near the rear of the Ann Jones’ Inn archaeological dig, to over 5 metres in line with the south side of Siege Street, rising further towards the rail line. The abutments however will be about 7 metres north of the Ann Jones Inn lot frontage, with open spans providing views across Beaconsfield Parade to the former shops on the opposite side, and to the south-west, between the bridge piers to the site of the Stationmaster’s house.
The views from the station, and from the south within the Lions Park are at present unencumbered by intrusive structures. The Beaconsfield Parade Bridge is presently a recessive feature, which because of surrounding vegetation does not impose severely in this aspect. The proposed new bridge, being taller and longer, and its construction requiring the removal of the existing approach embankments and mature trees, will be a more intrusive structure, despite it being open beneath the six spans.
The new bridge will be a more dominant structure, but this may be mitigated to some extent once new landscaping and tree planting matures.
The view to and from the site of the Stationmaster’s house is currently obscured by the existing bridge and approach embankments. This view will be opened up to some extent by the increased height and open structure of the new bridge.

Biosis also provided its assessment of the cumulative impact of the proposed new bridge, as follows:[45]
[45]Biosis HIS, 39.

4.10 Cumulative impact
Construction of the new bridge at Beaconsfield Parade will have a cumulative impact on the heritage place due to its greater length, height, width and dominant structural form. This will be offset to some extent by the provision of improved view lines and connectivity to and from the Stationmaster’s House site, but this itself will depend on the nature of landscaping and interpretation.
The construction of the new bridge will further contribute to existing inappropriate elements (such as concrete paths, kerb and channel, landscaping and interpretation) that may be considered to impact the heritage place. While there are opportunities to mitigate cumulative impacts through sympathetic detailed design, landscaping and interpretation, plans for these have not yet been prepared by ARTC.

Contrary to the Ned Kelly Centre’s submissions, the Biosis HIS identified that there might be ways to mitigate the visual and overall impact of the new bridge, although these had not at that stage been developed by ARTC.

The undeniable visual impact of the proposed new bridge was closely considered by Heritage Victoria during the application process. As the following paragraphs demonstrate, Heritage Victoria was acutely concerned about the impact that a longer and higher bridge would have on the Precinct. It pressed ARTC on this issue in a series of requests for information made under s 98 of the Heritage Act.

The first of those requests was made in a letter dated 9 September 2021. Heritage Victoria requested ARTC provide a range of further information in order to determine the application, including:

In regard to visual impacts, it is requested that potential harm associated with the retaining wall proposed adjacent to the Ann Jones’ Inn site is further considered and assessed in the HIS. While it is noted in the HIS that this element will create a ‘concrete wall as a backdrop to the most common view of the Ann Jones Inn site, as viewed from Siege Street’, the extent of impact this has not been adequately communicated. It is also not clear how the project team intends to mitigate this impact as detailed design is progressed, specifically, the extent to which it may be possible to minimise the visual bulk and appearance of this element to reduce associated visual harm.
…
In considering visual impacts in regard to key views and view lines more broadly, it is requested that a more comprehensive visual analysis is prepared and provided for Heritage Victoria’s consideration, noting in particular the reference in the HIS (p6) that access to sites, movement and views between them ‘are critical to the conservation of the cultural heritage' of the place. The additional renders requested previously may assist in this regard.

The ARTC RTS reiterated the reasons why replacing the bridge was ARTC’s preferred option. It responded to submissions that had raised the availability of alternative options, as follows:[55]

4.1 Options Analysis
A key theme raised by the submissions was the consideration of alternative design to the proposed road over rail bridge on Beaconsfield Parade. This theme was interconnected with the perceived visual impact of the new structure noting that the current design proposes a taller and longer bridge to accommodate raised heights on rail traffic along the Inland Rail route (see Sections 4.2 and 4.3). Key comments with respect to the Options Analysis included:
–the track lowering option originally identified as the preferred approach has been dismissed with limited justification
–the chosen design is the most significant in terms of impact to the Glenrowan Heritage Precinct
–that ARTC has misled Glenrowan stakeholders as to their intentions regarding the final design.
[55]ARTC RTS, 16–7.

In particular, Ms Joanne Griffiths, director of the Ned Kelly Centre Ltd, has provided detailed notes (pages 20-58 of her submission) on her correspondence and consultation experience with ARTC on the proposed design and her alternative design suggestions and justification.
4.1.1 ARTC Response
While this permit application and the provided HIS are not the appropriate reporting mechanism for the detailed discussion of the preferred design selection process, including the MCA[56] (see Australian Rail Track Corporation Limited 2019), the HIS does provide a succinct overview of the options analysis and assesses each option with respect to impact to historic heritage values (see Table 1.1 in this response for a summary).
[56]‘MCA’ refers to the multi-criteria analysis undertaken by ARTC to determine the preferred option, assessing the relevant options ‘by comparison and ranking of their effects, impacts and trade-offs against the criteria of project design, economic, environment, heritage and social considerations’: ARTC RTS, 4, see also 5–6.
The HIS identified that the lowering of the track was the highest impact to heritage values as it would significantly impact the important interconnected relationship between the siege site and the adjacent railway infrastructure. The railway was a key element in the siege story, specifically:
–the plan by the Kelly Gang to derail the train bringing police reinforcements to Glenrowan;
–Thomas Curnow flagging down the train before the derailment could occur; and
–the subsequent police positions during the siege which were influenced by local topography in relation to the railway line.

ARTC identified that the track would need to be lowered by 2.3 metres to successfully provide enough cleared clearance below the existing Beaconsfield Parade bridge for the proposed rail traffic on the Inland Rail route. The length of this lowering would have extended several hundred metres to the north and south.
While this was the initial preferred option promoted by ARTC, engagement with key heritage stakeholders including Heritage Victoria identified the importance of that interconnectedness of the railway to wider Glenrowan Precinct story and its continued interpretation at Glenrowan. This is also in line with Policy 17 of the Glenrowan Heritage Precinct Conservation Landscape Management Plan which identifies the railway corridor as a central feature of the Siege events recommending that views are maintained to conserve the legibility of the landscape (Lovell Chen Pty Ltd 2018).
Following MCA review, it was determined that a new bridge would be most compatible with the heritage values of the Glenrowan Precinct, while reducing impact to the town of Glenrowan and satisfying the objectives of Inland Rail. While all of the proposed bridge designs were assessed to be of moderate risk to heritage values, these could be mitigated through archaeological investigation, interpretation and further community engagement. The final option choice was made following consideration of impact to heritage and environmental concerns in addition to design constraints, property acquisitions, impacts to traffic management and promotion of tourism.
ARTC also notes that many of the specific urban landscape design comments provided by Ms Griffiths and others have been captured by the urban design process required through the Incorporated Document created through the PSA.[57] Where public submissions comments specifically involve commentary on the impact to heritage values of relevance to this permit application, they have been identified and responded to as part of this response. ARTC to date has and continues to correspond extensively with Ms Griffiths and others on the decisions behind the design choices. Likewise ARTC is committed to continued communication with key stakeholders and the public on the Project’s urban design. This includes the Rural City of Wangaratta on their aspirations for the proposed Glenrowan Heritage Project (GHP) and promotion of the heritage values of the Glenrowan Heritage Precinct …

[57]‘PSA’ refers to Planning Scheme Amendment GC157, approved on 25 March 2022, which introduced into the Wangaratta Planning Scheme and other relevant planning schemes the incorporated document titled ‘Inland Rail – Beveridge to Albury’. The incorporated document contains planning controls specific to the Inland Rail Project.

The ARTC RTS also provided its specific responses to each of the submissions, including Ms Griffith’s submission on behalf of the Ned Kelly Centre. It did not directly respond to the ‘cut and cover’ suggestion, but observed that the Ned Kelly Centre did not appear to have canvassed its preferred options widely in the Glenrowan community to demonstrate local support for them.

Heritage Victoria had all of this material before it when it determined to grant the Bridge permit — including the Ned Kelly Centre’s submission. If Heritage Victoria had considered that excavating a 600 metre trench through the centre of Glenrowan and rerouting the railway line underground might have been feasible, it could have requested ARTC to provide further information about that alternative. It was also reasonably open to it not to do so.

The Bridge officer report accepted that ARTC had investigated a variety of alternative options before settling on the replacement of the bridge as its preferred option. The officer’s comments on this issue were:[58]

From a solely heritage perspective Heritage Victoria’s preference would be to remove the existing Beaconsfield Parade overpass and install an at grade level crossing at Beaconsfield Parade which would reinstate the historic arrangement, as depicted in Figure 2. However, it is recognised that the installation of a level crossing would introduce an interface between pedestrian/vehicle and train traffic which would increase the risk to community safety. The introduction of new level crossings is inconsistent with Victorian Government policy which is removing level crossings from city and regional contexts to address safety concerns (Victorian Railway Crossing Safety Strategy 2018-2027). Since 2000 the Victorian Government has spent over $7 billion removing 81 level crossings. The construction of new at grade level crossings is not contemplated in Victorian Government policy. It is also inconsistent with State Planning Policy under Clause 18.02-3S to “provide for grade separation at railway crossings except with the approval of the Minister for Transport’. This position is reinforced in policy guidance from the Department of Transport (VicTrack Rail Development Interface Guidelines, Road/Rail Safety Interface Agreements: Rail Safety Guideline, Public Transport Guidelines for Land Use and Development)
Early in the project development ARTC also presented an option to lower the railway tracks through the site to achieve the required clearance. It is understood that track lowering would have required a 2.3m deep trench through the site extending for 400m either side of the Beaconsfield Parade overpass. Piling, retaining walls and drainage would have been required within the side, with barriers along either side of the railway line to prevent access. Heritage Victoria advised in 2019 that this option was unlikely to be supported due to the physical separation the trench would create through the site, and the disconnection of the relationship between the railway and the historic Glenrowan Station Platform. Heritage Victoria recommended at that time that ARTC consider all other options, including the removal of the overpass, or the realignment of the track to avoid the Precinct altogether.
The applicant investigated a variety of alternative options to facilitate their project before determining to proceed with this application to remove the existing Beaconsfield Parade overpass and construct a new higher bridge. ARTC has considered a variety of competing factors, including heritage, environment, design constraints, property acquisitions, bushfire egress, traffic management and tourism, in determining their preferred option is the only feasible option to allow the project to proceed.

[58]Bridge officer report, 18.

The Bridge officer report considered each of the submissions received, as required by s 101(2)(c) of the Heritage Act. In relation to the alternative options raised in the Ned Kelly Centre’s submission, the officer noted that these other options had been considered and ‘sufficiently ruled out’ by ARTC.[59] The officer also acknowledged ARTC’s response that the options suggested by the Ned Kelly Centre would not be viable, and that the impact on local residents and the town of Glenrowan itself would be significant.
[59]Bridge officer report, 36.

I do not consider that there is a serious question to be tried that the decision to grant the Bridge permit was invalid because ARTC did not specifically assess, and Heritage Victoria did not ask about, the ‘cut and cover’ alternative put forward by the Ned Kelly Centre. It was a matter for Heritage Victoria to determine whether other options had been sufficiently ruled out, and there was ample material available to it to make that determination.

Claimed contravention of permit

On 24 March 2023, Ms Griffiths requested Heritage Victoria to make a stop order in relation to works authorised by the Bridge permit at the Precinct. She claimed that photographs taken by an acquaintance on 11 March 2023 showed that the works had ‘heavily damaged and/or removed archaeological materials of the highest significance’ — namely, ‘remnant historical fence posts appearing likely to date from the 1880 siege of Glenrowan’. She also said that the excavation work appeared to have been done without archaeological supervision, examination, recording, or preservation, and contrary to the Archaeological Management Framework foreshadowed in the ARTC HIS.

Ms Griffiths had previously provided Heritage Victoria with the photographs referred to in her notification, which she said were taken on 11 March 2023 by an acquaintance only identified with the pseudonym ‘X’. She deposed that X had informed her that he had seen the apparent remnants of timber posts and old postholes running north-south parallel to the original Beaconsfield Parade, which were exposed and damaged by the ARTC contractors excavating in the area. After seeing his photographs, Ms Griffiths formed the view that these ‘archaeological materials’ were highly likely to be remnants of fencing dating back to June 1880. She visited the area herself on 19 March 2023, by which time the area had been filled over and levelled with quantities of crushed rock. During that visit she saw ‘an apparent timber remnant resembling a surveyor’s marker post that had a wedge-shaped cut end’ resting on a pile of recently excavated material. She also saw another piece of timber that appeared to be a potential fence railing from an original post. Ms Griffiths believed that the timber was likely to have been embedded in the ground where an aged and flaking piece of timber had been photographed by X in about the same position. She was concerned that no care appeared to have been taken by the contractors to protect these timber artefacts, which she considered to be ‘an extraordinarily important part of the archaeological heritage’.

The basis on which Ms Griffiths formed these beliefs is unclear. She does not profess to have any expertise in archaeology, and her affidavits did not relate X’s photographs or her observations on 19 March 2023 to any previous archaeological investigations of the area. To a layperson, the photographs do not obviously show anything of archaeological interest.

Heritage Victoria considered Ms Griffiths’ request for a stop order and, on 28 March 2023, decided not to make one. The Executive Director was not satisfied that there were reasonable grounds for believing that the Precinct could be harmed unless a stop order was issued.[60] He gave reasons for that conclusion, as follows:
[60]Heritage Act, s 165(1)(c).

a. In the absence of a permit, the works may have harmed a registered place. However, ARTC’s works are being undertaken pursuant to and in accordance with permit P35524.
b. I consider that the purpose of stop orders is to add to Heritage Victoria’s enforcement options in managing unauthorised works undertaken without a permit or an exemption, as opposed to works undertaken pursuant to (and in compliance with) a valid permit.
c. The Heritage Act establishes the Victorian Heritage Register (VHR) and a regulatory framework for the protection and management of change and development at VHR places. Sections 87 and 88 of the Heritage Act establish offences in relation to works or activities at a VHR place which are undertaken without a permit. Division 2 of Part 5 of the Heritage Act establishes a permit process under which work which may harm a VHR place may be approved by the Executive Director. It is noted that s 38 and s 92 allow for changes which will not result in harm to the VHR place.
d. The materials provided by Ms Griffiths do not establish any non-compliance by ARTC with the conditions of P35524, as to indicate there have been, or will be, unauthorised works likely to harm the Glenrowan Heritage Precinct.
e. As the works or activities at Glenrowan Heritage Precinct are in accordance with a permit issued under Division 2 of Part 5 of the Heritage Act, any harm to the VHR place, including that asserted by Ms Griffiths as summarised at paragraphs [a-b] above, has been contemplated and approved through the approval of permit P35524, and the endorsement of documents in accordance with the conditions of that approval.
f. The matters at paragraphs [c-g] above relate to the approvals process for the project. I considered the anticipated harm of the proposed works against the criteria set out in the Heritage Act at the time of the permit decision. As noted above, ARTC’s works are being undertaken pursuant to and in accordance with permit P35524 and therefore the harm is in line with that anticipated by the permit. The material provided in relation to paragraphs [c-g] do not establish any noncompliance with the conditions of P35524, nor do they indicate that there have or will be unauthorised works likely to harm the Glenrowan Heritage Precinct.

While the Ned Kelly Centre has not sought judicial review of this decision, it maintains that ARTC should be restrained from continuing work on the Bridge project due to the risk of further harm to other significant archaeological material in the ground nearby. The Ned Kelly Centre relied on ARTC’s ‘track record’ during the March excavations, and did not point to any additional evidence that future work was likely to be harmful or in breach of the Bridge permit.

As required by condition 11 of the Bridge permit, ARTC had an archaeological management plan (AMP) prepared by a qualified archaeologist, which was submitted to and endorsed by Heritage Victoria in November 2022. The AMP summarised two previous archaeological investigations of the Precinct, posed a number of research questions, and outlined the archaeological induction to be provided to contractors and their staff before the commencement of works. It set out the methodology to be followed during the early construction stages, which was to be updated between each construction stage. It also included a policy for artefact management and retention, a protocol for unexpected finds, and the reporting obligations of the supervising archaeologist. The AMP appended detailed design drawings showing, among other things, where the works would intersect with sites of particular historical significance.

Both the permit and the AMP require archaeological monitoring to be undertaken by a qualified archaeologist, and the contractor has engaged Andrew Long & Associates to oversee work on the Bridge project. An archaeologist is on site for any excavation work, and can stop work if required. Staff and contractors are regularly briefed on the works ahead and are instructed to contact the archaeologist immediately if they find anything unexpected.

To date, works have been stopped twice due to unexpected finds. On 13 January 2023, the works were stopped after an ink pot and a nail were found near a site called ‘Willie’s property’ on Beaconsfield Parade.[61] These artefacts were assessed to date from about 1890, after the Kelly era. In late March 2023, works were stopped for several days to assess a brick drain uncovered during excavation, which was also found to date from the 1890s.[62]
[61]Affidavit of Edward Walker dated 5 July 2023, [83], Exhibit EW–1, 737, 748–9.
[62]Affidavit of Edward Walker dated 5 July 2023, [83], Exhibit EW–1, 739–47.

On the basis of this evidence, I am not satisfied that there is a serious question to be tried that the continuation of work on the Bridge project is likely to contravene the Bridge permit, specifically the conditions relating to archaeological management. The evidence relied upon by the Ned Kelly Centre did not establish an arguable case that the excavation works during March 2023 contravened those conditions. To the contrary, the evidence is that the excavations were monitored by a qualified archaeologist and were twice stopped in order to investigate finds of archaeological interest.

In addition, the stages of the Bridge project that involved disturbing the ground in the Precinct have already been completed. The project is now in the ‘superstructure’ phase, which involves building the new bridge and other work above ground level. The next scheduled stages are the tie in works, during which the new bridge will be connected to the existing road network, and the demolition of the old bridge. None of these stages will involve any significant ground disturbance within the Precinct. For that reason also, I am not satisfied that there is a serious question that the continuation of these works to completion is likely to harm the archaeological heritage of the Precinct.

Bridge project – balance of convenience

Even if there was an arguable case that the Bridge permit was invalid, or was likely to be contravened by future work, the balance of convenience is strongly against granting interlocutory injunctions requiring ARTC to cease work on the Bridge project pending trial.

After the Bridge permit was issued in August 2022, ARTC and its contractor undertook the necessary detailed design work and then commenced construction. The Bridge project is well advanced, having progressed through the following phases:

(a) early works, involving utility relocation, started in November 2022 and were completed in March 2023;

(b) site establishment works, such as fencing the site and setting up temporary facilities, commenced in November 2022 and were completed in February 2023;

(c) the substructure phase, involving piling works, commenced in March 2023 and was completed in late May 2023. It was during this phase that the substantial earthworks required for the Bridge project took place. A critical period during the substructure phase took place in March 2023, when ARTC took ‘possession’ of the train line for a 60 hour period during which no trains were running, and worked continuously over the train lines.

Currently, the Bridge project is in the superstructure phase, which includes building the bridge deck, installing the columns, and laying bitumen. The on-site work during the remainder of this phase is taking place above ground and involves little ground disturbance, except for some excavation works that were completed at the end of June 2023. The superstructure phase is planned for completion in late September 2023, during the next scheduled possession of the train lines on 23 to 25 September 2023. It is at this time that the final superstructure works are planned to take place, when the rail beams are placed over the train tracks.

The three remaining phases are:

(a) the tie-in works, which are scheduled to take place in September and October 2023;

(b) the demolition of the existing bridge, due to occur in November 2023; and

(c) demobilisation, which involves removing fences and barriers, landscaping and other rehabilitation work, which is estimated to be completed by Christmas 2023.

If an injunction were granted restraining work from continuing until the determination of the proceeding, the first and most significant implication for the Bridge project would be that it would miss the next possession date on 23 to 25 September 2023. Possession can only occur once every six months, due to the impact it has on the national rail network. If ARTC is not ready to take possession on 23 September 2023, it will have to wait at least six months for the next opportunity to do so. Mr Walker estimated that the cost of delaying work on the Bridge project for six months would be in the vicinity of $900,000. This estimate was not disputed by the Ned Kelly Centre. A delay of longer than six months could have even greater implications, both for the cost of the Bridge project and for the timely completion of the Inland Rail project.

In addition, the existing bridge is the only rail crossing in Glenrowan and only one lane on that bridge is currently operating. Any delay in completing the new bridge would prolong the traffic delays and the ongoing inconvenience to the Glenrowan community. It would be of particular concern for the delay to continue over summer, given that the railway line separates Glenrowan’s emergency services from its main residential area.

To the extent that the Ned Kelly Centre is concerned about future harm to the archaeological heritage of the Precinct, the evidence is that the work involving ground disturbance has already been completed.

The other considerations are similar to those set out at [70] to [74] above, in relation to the Tower project. I note the following matters.

(a) The Ned Kelly Centre has not proffered the usual undertaking as to damages, and says it does not have the financial resources to make good such an undertaking.

(b) Although the Ned Kelly Centre and Ms Griffiths have maintained a strong public opposition to the Bridge project since the permit was issued in August 2022, I cannot find any correspondence putting ARTC on notice that the Ned Kelly Centre intended to seek injunctions to restrain work from continuing. Ms Griffiths’ correspondence with Heritage Victoria in March and April 2023 did not have that effect.

(c) There is no evidence that explains Ned Kelly Centre’s delay in commencing the proceeding and seeking interlocutory injunctive relief.

To summarise, the works authorised by the Bridge permit have substantially progressed and are approaching a critical point. If work were to cease now, ARTC would not be ready to take possession of the train line on 23 September 2023, and would have to wait at least another six months before it could complete the superstructure phase of the project. An order restraining ARTC from continuing work on the Bridge project would cost ARTC in the order of $900,000, in circumstances where the Ned Kelly Centre has not proffered the usual undertaking as to damages. In addition, it would prolong the traffic delays and inconvenience associated with the Bridge project. The Ned Kelly Centre has delayed in seeking interlocutory relief, and has not put forward evidence to explain that delay. For those reasons, the balance of convenience is overwhelmingly against granting the interlocutory injunction it seeks to restrain work on the Bridge project until the determination of the proceeding.

Bridge project – conclusion

The Ned Kelly Centre has not established a serious question to be tried that the Bridge permit is invalid, or that ongoing work on the Bridge project is likely to breach the permit. Nor has it shown that the balance of convenience favours granting an interlocutory injunction. Even if the Ned Kelly Centre had made out a case for interlocutory relief, I would have been disinclined to grant relief in light of the unexplained delay in seeking it.

Disposition

The Ned Kelly Centre’s summons filed 30 June 2023 must be dismissed.

At a mention on 13 July 2023, I informed the parties that I would not be granting interlocutory injunctions to restrain work continuing on the Tower project or the Bridge project. I indicated that I would make formal orders dismissing the summons when I was in a position to publish my reasons for decision.

Both the Council and ARTC sought their costs of the summons, while Heritage Victoria sought no order as to its costs. I asked Ned Kelly Centre whether there was any reason why costs should not follow the event. It submitted that they should not, because the application had been brought in good faith, and involved matters of strong public interest. It also said that there had been a strong financial reason why the proceeding was not brought earlier. In the alternative, it sought a stay on any order of costs until the conclusion of the proceeding. I indicated that I was not satisfied that there were special circumstances that warranted a departure from the usual rule that costs follow the event, and would be making an order that the Ned Kelly Centre is to pay ARTC’s and the Council’s costs of the summons.

The following day, the Ned Kelly Centre’s corporate counsel sent an email to my chambers, seeking a further opportunity to make more informed submissions as to costs once he had been able to review my reasons for decision. He foreshadowed a submission based on the approach taken in Ruddock v Vadarlis (No 2),[63] a case in which a concerned citizen had brought a proceeding to protect the human rights of a group of asylum seekers rescued at sea by the MV Tampa.
[63](2001) 115 FCR 229, [30].

It will by now be apparent that I do not consider this case to be in the same category. That said, I accept that the Ned Kelly Centre should have an opportunity to make further submissions as to costs once it has been able to consider my reasons for decision.

As I indicated during the mention on 13 July 2023, the usual rule is that an unsuccessful party must pay the costs of a successful party, unless there are special circumstances that justify a departure from that rule. If the Ned Kelly Centre seeks to persuade me to depart from the usual rule in relation to the costs of its summons, it may do so by filing and serving a short submission (no more than three pages) within seven days. That submission should not seek to reagitate the conclusions expressed in these reasons. If the Ned Kelly Centre files a submission on costs, the defendants will have a further seven days to file a short submission in reply.

[2023] VSC 421

24 July 2023