The People Of the Small Town Of Hawkesdale Incorporated v Minister for Planning & Ors (According to the Schedule)
[2022] VSCA 167
•18 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2021 0111 |
| THE PEOPLE OF THE SMALL TOWN OF HAWKESDALE INCORPORATED | Applicant |
| v | |
| MINISTER FOR PLANNING & ORS (ACCORDING TO THE SCHEDULE) | Respondents |
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| JUDGES: | EMERTON P, NIALL and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 May 2022 |
| DATE OF JUDGMENT: | 18 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 167 |
| JUDGMENT APPEALED FROM: | [2021] VSC 510 (Richards J) |
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ADMINISTRATIVE LAW – Standing – Where incorporated association sought to challenge decision to extend permit for development of wind farm – Where association incorporated after impugned decision made – Whether judge erred in finding association lacked standing – Whether undue weight given to lack of historical activities of association – Whether standing can be derived from interests of association’s members – Whether standing supported by statutory context – No errors demonstrated – Leave to appeal refused – Australian Conservation Fund Inc v Commonwealth (1980) 146 CLR 493; Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824, considered; Ex parte Helena Valley/Boya Association (Inc) v State Planning Commission (1990) 2 WAR 422; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc (2005) 30 WAR 138, distinguished.
ADMINISTRATIVE LAW – Judicial review – Validity of extension decision – Where permit extended pursuant to condition in permit – Where specific power to extend permits contained in s 69(2) of Planning and Environment Act 1987 – Whether permit condition valid – Whether s 69(2) exclusive source of power to extend permits – Permit condition valid – Leave to appeal refused – Planning and Environment Act ss 4(1)–(2), 62, 68, 69, 97F – Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 5; Kingston City Council v Transpacific Waste Management Pty Ltd (2013) 196 LGERA 156, considered.
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| Counsel | |||
| Applicant: | Mr A Myers AC QC with Mr S Frauenfelder | ||
| First Respondent: | Ms JE Forsyth SC with Ms C van Proctor | ||
| Second and Third Respondents: | Mr JD Pizer QC with Mr BC Chessell and Mr GB Ayres | ||
Solicitors | |||
| Applicant: | DST Legal | ||
| First Respondent: | Victorian Government Solicitor | ||
| Second and Third Respondents: | Baker & McKenzie | ||
EMERTON P
NIALL JA
KENNEDY JA:
The small town of Hawkesdale is located in south-western Victoria, roughly half way between Hamilton to the north-east and Warrnambool to the south-west. It has a population of about 250 people, and a combined post office and general store, a P-12 school, a community hall, some sporting facilities, a hotel, a fire brigade and a Scout group.
The applicant (‘Association’) is an incorporated association whose members are drawn from the township of Hawkesdale and the surrounding area in the Moyne Shire.
On 21 August 2008, the Minister for Planning issued a planning permit[1] pursuant to s 97F of the Planning and Environment Act 1987 (‘Planning Act’) permitting the development and use of land proximate to Hawkesdale as a wind farm (‘Wind Farm’) with up to 31 wind turbines, each with a maximum height of 121.5 metres. The land to which the permit relates is made up of about 50 parcels of privately owned land, as well as a disused railway reserve and two roads and road reserves.
[1]Permit no 20060221-A (‘permit’).
The second and third respondents, Global Power Generation Australia Pty Ltd and Hawkesdale Asset Pty Ltd respectively, are corporate entities with an interest in the development of the Wind Farm.
The Wind Farm was not completed within the period contemplated when the permit was issued. However, Condition 64 of the permit provided for its expiry and extension as follows:
Expiry
This permit will expire if one of the following circumstances applies:
(a)The development is not started within three years of the date of this permit;
(b)The development is not completed within six years of the date of this permit.
The Minister for Planning as responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within 12 months afterwards.
The permit has been amended and the period for completion of the Wind Farm has been extended on more than one occasion.
On 21 December 2017, the Minister amended the permit to reduce the maximum number of wind turbines to 26, increase the maximum height of the turbines to 180 metres, and extend the permit so that it would expire if works were not completed by 29 August 2020.
The 2017 amendment followed an application by Ryan Corner Development Pty Ltd to amend the permits for the Wind Farm and another proposed wind farm at Ryan Corner, to the south-west of Hawkesdale. The Minister referred the objections and submissions received to a planning panel constituted under pt 8 of the Planning Act. The panel held hearings in Port Fairy in August 2017 and provided its report to the Minister in October 2017. The panel supported the proposed amendments to the permit, concluding that the amendment was ‘strongly supported by policy’ and that the Wind Farm would ‘contribute to meeting Victoria’s renewable energy commitments and targets’.
On 2 November 2020, a delegate of the Minister approved a request for a further extension of time to complete the development of the Wind Farm (‘Extension Decision’). The permit is now expressed to require the completion of the development by 29 August 2023. The request for an extension was the subject of an assessment report, which noted that the ‘request was received prior to the permit’s expiring, and can therefore be considered under the extension provisions of these permit conditions’, that is, under Condition 64.
When the Extension Decision was made, the Wind Farm project had been commenced but was far from advanced. A number of sheds and an access road had been constructed, but no arrangements (in the form of footings or foundations) had been made for the installation of towers and turbines. In other words, despite the fact that the permit was first granted in 2008, very little progress had been made by the proponent to develop the Wind Farm.
On 13 January 2021, having learned of the Extension Decision, eight people from the township of Hawkesdale and surrounds met and resolved to incorporate an association that would serve as the vehicle to challenge the Extension Decision. The Association was formally incorporated on 29 January 2021 and, on 17 February 2021, it commenced a proceeding in the Trial Division of the Supreme Court seeking judicial review of the Extension Decision. The Association contended that the Extension Decision was invalid because no valid request to extend the permit had been made under s 69(1) of the Planning Act, which required the request for an extension to be made by ‘the owner or occupier’ of the land in question. Alternatively, the Association submitted that the Extension Decision was affected by error of law on the face of the record. It sought orders quashing the Extension Decision and a declaration that the permit had expired on 29 August 2020.
The Minister and proponents of the Wind Farm took issue with the Association’s standing to bring the proceeding, and submitted that, in any event, the Extension Decision was valid and there was no error of law on the face of the record.
On 20 August 2021, the primary judge dismissed the proceeding,[2] concluding relevantly as follows:
(a)The Association did not have standing to bring the proceeding.
(b)The Minister did not have power to extend the permit under s 69(2) of the Planning Act as the request to extend the permit was made by Global Power, which did not claim to be ‘the occupier of the land’ to which the permit applies for the purposes of s 69(1) of the Planning Act and, as a result, the Minister’s power under s 69(2) was not enlivened.
(c)However, Condition 64 of the permit was a valid source of an alternative power to extend the permit, and it supported the Extension Decision independently of s 69 of the Planning Act.
[2]See The People of the Small Town of Hawkesdale Inc v Minister for Planning [2021] VSC 510 (‘Reasons’).
Proposed Grounds of appeal
The Association now appeals the decision of the primary judge in respect of both its standing and the lawfulness of the Extension Decision insofar as it was founded on the Minister’s purported power to extend the permit conferred by Condition 64.
Specifically, the Association’s proposed grounds of appeal are as follows:
(1)The primary judge erred in holding that the Association did not have a special interest in challenging the Extension Decision, insofar as her Honour:
(a)found that the absence of historical activities by the Association meant there was no evidence that the Association represented its members’ interests;
(b)misconstrued the statutory context in holding that the Planning Act did not contemplate third parties having standing to challenge a decision to extend time.
(2)The primary judge ought to have held that the Association had a special interest in challenging the Extension Decision because:
(a)the practical effect of the Extension Decision was that there was still planning permission for the Wind Farm to be developed and operated;
(b)unchallenged evidence demonstrated that the Association represented the interests of those likely to be affected by the development of the Wind Farm;
(c)the statutory context created by the Planning Act did contemplate third parties having standing to challenge the legality of a responsible authority’s decision to extend time.
(3)The primary judge erred in holding that s 62(2) of the Planning Act validly supported Condition 64 insofar as that permit condition permitted a person other than the owner or occupier of the land to which the permit applies to request an extension. The primary judge erred in that her Honour:
(a)failed to have regard to the fact that s 69 of the Planning Act required a request by an owner or occupier as a jurisdictional fact to enliven a responsible authority’s power to extend a permit under s 69(2);
(b)incorrectly reasoned that s 69 supplied a ‘default position’ rather than the only power to extend the permit;
(c)overlooked Parliament’s evident purpose in enacting s 69 when holding there was no clear policy imperative for Parliament to limit the ability to request a permit extension to owners and occupiers;
(d)drew an incorrect inference as to the significance of amendments to s 69 that occurred after the Extension Decision was made; and
(e)wrongly reasoned that her construction of s 62 was supported by the decision of Emerton J in Kingston City Council v Transpacific Waste Management Pty Ltd.[3]
(4)The primary judge ought to have held that, properly construed, the general power in s 62(2) of the Planning Act was not capable of validly authorising Condition 64, given that:
(a)all parties accepted that a request by the owner or occupier of the land to which the permit applied was a jurisdictional fact necessary to enliven the extension power in s 69(2); and
(b)Condition 64, imposed by the Minister, purported to allow the Minister to bypass that Parliamentary restriction and grant an extension in the absence of that jurisdictional fact.
[3](2013) 196 LGERA 156; [2013] VSC 441 (‘Transpacific’).
Among other things, the Association now seeks an order that the Extension Decision be quashed and a declaration that the permit expired on 29 August 2020.
It will be seen that the two fundamental issues in this appeal are first, whether an association of residents formed specifically to challenge an existing decision extending a permit for the development of land has standing to bring that challenge and, second, whether the existence of the express power to extend a permit in s 69(2) of the Planning Act precludes reliance on a permit condition imposed under s 62(2) purporting to authorise the Minister (or other responsible authority) to extend the permit, free from the constraints in s 69.
In a notice of contention, the second and third respondents challenge the primary judge’s holding that the request made on 17 August 2020 to extend the permit was made solely on behalf of the second respondent and not on behalf of the second respondent ‘as agent for Ryan Corner or on behalf of [the second respondent] and Ryan Corner’. The second and third respondents further contend that the judge failed to consider whether Ryan Corner was an ‘occupier’ of the land to which the permit applied within the meaning of s 69(1) of the Planning Act and that her Honour should have reached that conclusion.
For the reasons that follow, it is unnecessary to consider the notice of contention. The primary judge was correct to hold that Association did not have a special interest in the subject matter of the proceeding sufficient to give it standing. That disposes of the application for leave to appeal.
However, as they raise potentially important points of principle for the construction of the Planning Act, we have considered the grounds challenging the validity of the Extension Decision, which concern the interaction between s 69 of the Planning Act and Condition 64. For the reasons that follow, we have determined that the primary judge was correct to hold that the Extension Decision was supported by Condition 64.
Statutory framework for the extension of the permit
Part 4 of the Planning Act deals with permits to develop and use land. In this case, the permit was granted by the Minister (as the responsible authority) under pt 4 div 6 after exercising the call-in power in s 97B.
Section 97F provides:
(1)After considering the report of the panel (if any), the planning scheme and any matters to be considered under section 60, the Minister may—
(1)grant the permit; or
(2)grant the permit subject to conditions; or
(3)refuse to grant the permit on any ground he or she things fit.
(2)Once the Minister has decided in favour of an application, the Minister must issue the permit to the applicant.
Section 97J contains the following amendment power:
After considering the report of a panel (if any), the planning scheme and any matters to be considered under section 60, the Minister may—
(1)amend the permit; or
(2)amend the permit subject to conditions; or
(3)refuse to amend the permit on any ground he or she thinks fit.
The powers of the Minister in s 97F(1)(b) to grant a permit subject to conditions (and in s 97J(b) to amend a permit subject to conditions) are informed by s 62 of the Planning Act. Section 62 sets out conditions that must be included in permits and conditions that may not be included. Section 62(2) contains a wide discretionary power to impose conditions that the responsible authority ‘thinks fit’. Condition 64 was imposed using this power.
Section 67 provides that a permit operates:
(a) from the date specified in the permit; or
(b) if no date is specified, from—
(1)the date of the decision of the Tribunal, if the permit was issued at the direction of the Tribunal; or
(2)the day on which it is issued, in any other case.
Section 68 governs the expiry of permits, and distinguishes between permits for the development of land, permits for the use of land and permits for the development and use of land. Section 68(3) relevantly provides:
(3)A permit for the development and use of land expires if—
(a)the development or any stage of it does not start within the time specified in the permit; or
(b)the development or any stage of it is not completed within the time specified in the permit, or, if no time is specified, within two years after the issue of the permit; or
(c)the use does not start within the time specified in the permit, or, if no time is specified, within two years after the completion of the development; or
(d)the use is discontinued for a period of two years.
Section 68 contemplates that the permit itself may specify the time of its expiry. The time for expiry will be specified in a permit condition imposed under s 62(2) of the Planning Act. The particular periods for expiry in sub-ss (3)(b) and (c) operate only if the permit does not specify a time for its expiry.
Section 69 provides for extensions of time for the commencement or completion of a development. As at 2 November 2020, s 69 provided:
(1)Before the permit expires or within 6 months afterwards, the owner or the occupier of the land to which it applies may ask the responsible authority for an extension of time.
(1A)The owner or occupier of land to which a permit for a development applies may ask the responsible authority for an extension of time to complete the development or a stage of the development if—
(a)the request for an extension of time is made within 12 months after the permit expires; and
(b)the development or stage started lawfully before the permit expired.
(2)The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Subdivision Act 1988 is to be certified.
In 2021, the wording of s 69(1A) was amended and a new sub-section, sub-s (1B), was inserted. Those provisions now read:
(1A) The owner or occupier of land to which a permit for a development applies, or another person with the written consent of the owner, may ask the responsible authority for an extension of time to complete the development or a stage of the development if—
(2)the request for an extension of time is made within 12 months after the permit expires; and
(3)the development or stage started lawfully before the permit expired.
(1B)A request under subsection (1) or (1A) by a person who is not the owner or occupier of the land must be accompanied by a copy of the written consent of the owner.[4]
[4]Emphasis added.
These permit provisions must be read in the context of the objectives of planning in Victoria identified in s 4(1) of the Planning Act and the objectives of the planning framework established by that Act that are set out in s 4(2). Relevantly, the objectives of planning include:
(4)to provide for the fair, orderly, economic and sustainable use, and development of land;
…
(5)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
…
(g)to balance the present and future interests of all Victorians.
The objectives of the planning framework established by the Planning Act relevantly include:
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
…
(e)to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;
(f)to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
…
(h)to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i)to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
The purpose of the statutory permit scheme in the Planning Act was recently explained by this Court by reference to the objects and purpose of the Planning Act as follows:
Underlying the statutory scheme are the objectives of planning in Victoria which include ‘to provide for the fair, orderly, economic and sustainable use, and development of land’ and extend beyond the regulation of land use to the facilitation of appropriate land use and development. Likewise, the objectives of the planning framework in Victoria include the facilitation of development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes.[5]
[5]Cumming v Minister for Planning (2020) 245 LGERA 164, 206 [192] (Tate, McLeish and Osborn JJA); [2020] VSCA 208.
Grounds 1 and 2: Standing
Factual background
The matters said to support the Association’s standing to bring the proceeding are set out in the affidavits of two of its founding members:
(a)affidavit of John Peter Bos, the president of the Association, affirmed on 16 February 2021;
(b)supplementary affidavit of John Peter Bos affirmed on 25 March 2021; and
(c)affidavit of Robert McCosh, a member of the Association and whose mother is the Association’s secretary and treasurer, sworn on 25 March 2021.
Each of Mr Bos and Mr McCosh deposed to their long association with the township of Hawkesdale and its people, and to the way in which they say the Wind Farm will adversely affect their lives and the lives of the other residents of Hawkesdale and surrounds.
Mr Bos and his wife Julie are pillars of the local community, having raised their children in Hawkesdale and been deeply involved in a variety of community activities for many years. They also run businesses that play an important role in the economy of Hawkesdale, and have paid rates and taxes for many years based on business income generated in Hawkesdale.
Mr Bos deposed that he and other members of the Association who live or work in Hawkesdale and the surrounding area had come together as a group ‘to invoke the court’s protection to challenge the Minister’s decision and share legal costs’. The Association came into being as a result of a meeting of eight people held on 13 January 2021, which resolved to incorporate an association named ‘The People of the Small Town of Hawkesdale’ with the following purposes:
(1)To oppose the construction of the Hawkesdale Wind Farm including but not limited to initiate correspondences or meetings with the operators, mediation or do all things and acts necessary to achieve this purpose.
(2)To prevent the construction of the wind farm being built near the town of Hawkesdale including but not limited to appoint legal representative to initiate legal proceedings against the operator.
(3)To represent the voices of the people of Hawkesdale as the Association deems fit from time to time.
After adopting model rules and electing office bearers, the meeting resolved to apply for an injunction to stop all work on the Wind Farm until acoustic readings were completed. The Association was formally incorporated on 29 January 2021 under the Associations Incorporation Reform Act 2012 and some two weeks later it commenced the judicial review proceeding.
Mr Bos deposed to being very concerned about the design and location of the Wind Farm, and expressed fears that it would result in unreasonable community impacts, given its proximity to the township of Hawkesdale. He described hearing similar concerns among other members of the Hawkesdale community. He deposed to a history of local opposition to the project, including a public meeting held in September 2017 between concerned members of the Hawkesdale community, representatives of the Department and the National Wind Farm Commissioner, which was attended by over 100 people. At around the same time, he helped to organise a petition objecting to the amendment of the permit that was signed by ‘almost the entire local Hawkesdale community’. He has been in regular correspondence with Departmental officers about the Wind Farm since July 2019.
Mr Bos expressed particular concern that the Wind Farm would affect population growth in Hawkesdale and referred to an open letter he had received from a local resident in which the resident explained that the cumulative impacts of wind farms (nearby) had helped shape his decision to leave the Hawkesdale area where he lived and ran a business. Mr Bos also deposed that his adult son had expressed a desire to move back to Hawkesdale one day, but would not do so if the Wind Farm was built.
In his supplementary affidavit, Mr Bos deposed to participating in a Council workshop for the purpose of discussing Moyne Shire’s Settlement and Housing Strategy for Hawkesdale. The Strategy proposes to remove what Mr Bos described as ‘quality residential land stock’ in an area south-east of Hawkesdale from the township boundary as a precautionary approach to mitigate the impacts of the Wind Farm. Mr Bos also exhibited to his supplementary affidavit the Moyne Shire Economic Development Strategy 2019–2029, which he said recognised the importance of population growth to Hawkesdale.
Mr McCosh deposed that he and his parents own and operate a nearby farm, and live on properties that are close to the southern and eastern perimeters of the proposed Wind Farm. They are concerned that the noise and visual impacts of the turbines will make their homes uninhabitable and that they will have to move away from Hawkesdale. Three turbines are proposed to be situated within about one kilometre of the farm and approximately six turbines are to be situated within one kilometre of Mr McCosh’s home.
Mr McCosh deposed that he and his family made submissions to the Minister in 2017 objecting to the application to amend the permit. He exhibited to his affidavit a report prepared by his mother on the socio-economic impacts the Wind Farm would have on the local community.
Primary judge’s decision on standing
The primary judge recorded the acceptance by all parties that the standing of a private person to seek judicial review of an exercise of public power depends on that person having a ‘special interest’ in the subject matter of the proceeding, beyond a ‘mere intellectual or emotional concern’ or a strongly felt belief that the law should be observed.[6] Her Honour then set out the following principles governing standing, derived from the decisions of this Court in Maguire v Parks Victoria[7] and VicForests v Kinglake Friends of the Forest Inc:[8]
(a)The special interest test is flexible, and its content in a given case depends on the nature and subject matter of the litigation. There is no precise formula as to what amounts to a special interest in the subject matter of a particular proceeding; the application of the test is fact and context specific.
(b)A ‘special interest’ sufficient to invoke the Court’s jurisdiction to supervise the exercise of public power is not limited to the legal, proprietary or financial interests that are protected by the private law.
(c)The requirements of standing serve to keep the exercise of judicial power within proper bounds, namely the resolution of legal controversies between parties who are affected by the outcome.
(d)The special interest test requires an intersection between the interest identified by the plaintiff and the subject matter of the proceeding. It is necessary to assess how the plaintiff’s interest may be affected by the matter in respect of which it seeks relief.
(e)The statutory context is important. It will be relevant whether and to what extent the statute accommodates the plaintiff’s interest, and how it intersects with that interest. However, the statutory context does not control standing: a ‘plaintiff may have standing to challenge the exercise of power because of its practical or legal effect’.
[6]Reasons, [57], referring to Australian Conservation Fund Inc v Commonwealth (1980) 146 CLR 493, 530–1 (Gibbs J); [1980] HCA 53 (‘ACF’).
[7](2020) 245 LGERA 141, 154–5 [64]–[67], 156–8 [76]–[80] (Ferguson CJ, Kyrou and Niall JJA); [2020] VSCA 172 (‘Maguire’).
[8](2021) 248 LGERA 28, 39–40 [31], 46 [60]–[61] (Niall, Emerton and Kennedy JJA); [2021] VSCA 195 (‘VicForests’).
There is no complaint about this summary of the law, and we consider it to be correct.
Before the primary judge, the Association identified the subject matter of the proceeding to be ‘the legality of the Extension Decision, the effect of which is to permit the development of the Hawkesdale Wind Farm, which would otherwise have been prohibited upon expiry of the [p]ermit’. The Association claimed to have a special interest in this subject matter, which was to avoid the real and substantial practical detriments that its members would suffer were the development of the Wind Farm to go ahead. It submitted that the Extension Decision had a practical effect on the Association’s members, as demonstrated by the evidence of Mr McCosh and Mr Bos. Further, the Planning Act specifically accommodated the rights of third parties who might be affected by planning decisions.
The Association claimed further that it had standing to challenge the Extension Decision because, if it was unlawfully made, the Association would be deprived of its rights under the Planning Act to object to a fresh permit application and to appeal an unsatisfactory outcome to the Victorian Civil and Administrative Tribunal.
The primary judge accepted the Association’s characterisation of the subject matter of the proceeding to be the legality of the Extension Decision and that the practical effect of the Extension Decision was that planning permission for the Wind Farm to be built and operated remained on foot in circumstances where it would otherwise have expired. However, she found that the Association itself had no legal, proprietary or financial interest that might be affected by the Extension Decision. Some of its members had such an interest or interests, but her Honour did not know enough about the interests of many of the members of the Association to make a finding that they would all have standing in their own right.[9] In any event, the fact that some members of the Association had a special interest in the subject matter of the proceeding did not, of itself, compel the conclusion that the Association had such an interest.[10]
[9]Reasons, [59].
[10]Reasons, [60].
The primary judge found that there was no evidence of any activity by the Association to represent its members’ interests or pursue its objects, other than its commencement and pursuit of the proceeding. It had written no letters, made no submissions, held no public meetings, and had had no interactions with the Department, the Minister or the proponents of the Wind Farm development. While Mr Bos had done a number of these things, he had done so in his own name and not as president of the yet to be formed association.[11] Her Honour also found that, while the Association claimed to be acting as a representative not only of its members’ interests but also the interests of the residents of Hawkesdale whose financial interests might be damaged by the Wind Farm, there was no evidence that the Association had ever actively represented its members or anyone else.[12] The Association had no prior existence as an unincorporated association. Its members had come together as a group to invoke the Court’s protection to challenge the Extension Decision and share legal costs.[13]
[11]Reasons, [65].
[12]Reasons, [66].
[13]Reasons, [67].
The primary judge held that the public participation rights in the Planning Act did not assist the Association. While the Act provides a wide opportunity for third party participation in planning decisions up until a permit is issued, once the permit has been issued, the Planning Act is significantly less accommodating of the interests of third parties. It does not provide for third parties to receive notice of a request to extend a permit and does not contemplate that third parties have standing to challenge a decision to extend the permit.[14]
[14]Reasons, [69].
The primary judge also rejected the proposition that the Association had a special interest in the subject matter of the proceeding because it could object to a fresh permit application if the Extension Decision was invalid.[15]
[15]Reasons, [72].
The judge concluded that the Association did not have standing to seek judicial review of the Extension Decision. The objects of the Association and the interests of at least some of its members in opposing the construction of the Hawkesdale Wind Farm did not give rise to a special interest in the subject matter of the proceeding.
Submissions
The Association made its submissions against what it described as ‘unchallenged evidence’ establishing the Association’s representative character, which was to the effect that the Wind Farm would cause real and substantial practical detriment to surrounding land holders and to the township of Hawkesdale, and that the Association represented the interests of those who would suffer these detriments. In this context, the Association pointed to the ‘unavoidable’ visual impact of the turbines and the noise of the turbines impacting on those living nearby, the reduction in the value of nearby properties and the detrimental effect on the population level of Hawkesdale by forcing existing residents to leave and discouraging those considering moving or returning to the town to live and raise their families.
The Association submits that while the primary judge correctly stated the general principles concerning standing, she made three substantive errors in her conclusions.
The first substantive error contended for is the conclusion that a lack of historical activities meant that the Association was not able to prove that it represented the interests of its members and those likely to be affected by the Wind Farm. According to the Association, the need to show historical activities, derived from this Court’s decision in VicForests, applies most particularly in ‘the environment protection context’ and is not determinative of standing in this case. In the environment protection context, the historical activities of an incorporated association will be important, as the concern to protect and enjoy the natural environment is one that might equally be felt by any member of the Australian community, wherever they are located. In that context, historic activities in a specific geographic area serve to separate ‘cranks’ and ‘busybodies’ from those who have a real, practical involvement with the particular subject matter of the litigation. Here, the Association does not seek to assert an interest in matters geographically distant from its members. The Association has a commitment to ‘the specific environment of Hawkesdale’ because its members have a proven connection to an area that will be detrimentally affected by the Wind Farm.
In oral submissions, senior counsel for the Association submitted that the fact that an association has historical activities may ‘give it a bit of a leg up’, but an absence of such activities is not a factor that necessarily weighs against the Association having standing. In each case, it is necessary to consider what is asserted as giving rise to standing. It was submitted that the Court can look to the activities of the members of an Association before it was incorporated to see their commitment to the matters that give the Association standing. Moreover, because the public discovery of the Extension Decision was the ‘impetus’ for the incorporation of the Association, it was both understandable and irrelevant that the Association did not have a prior existence and a history of activities.
Senior counsel for the applicant further submitted that the primary judge was wrong to hold that the fact the members of the Association had standing did not compel the conclusion that the Association itself had standing. In advancing this argument, he emphasised the nature of an incorporated association, referring to s 29 of the Associations Incorporation Reform Act. That provision reads:
On and from the registration of an incorporated association under this Act, the persons who from time to time are members of the incorporated association are an incorporated association by the name entered in the register.
According to senior counsel, although there is no ‘juridical’ difference between an incorporated company and an incorporated association, the words of s 29 ‘strongly suggest that in determining the standing of an association you look to see whether the individuals who are members have standing’. This is because the association is no more or less than its members clothed with the mantle of incorporation. It is a misunderstanding of the effect of incorporation to treat it as a barrier to the pursuit by its members of their interests. Incorporation was simply a legal mechanism to facilitate the pursuit by the Association’s members of their interests through the proceedings. This is reinforced by the fact that the Association has a small number of members with a clear interest in the subject matter of the proceeding and has specific objects reflecting its members’ interests.
Secondly, the Association submits that the primary judge failed to take into account that the practical effect of the Wind Farm went beyond the impact it would have on individual landholders and residents. It refers to what it again describes as ‘unchallenged evidence’ that the construction of the Wind Farm will affect population growth in Hawkesdale and submits that this evidence is important because it shows that the Association represents not only the individual members’ interests, but their shared interest in the ongoing viability of Hawkesdale.
The third substantive error asserted by the Association is the primary judge’s holding that the statutory context did not support the Association’s claim to standing. The Association submits that in the specific context of permit extensions under s 69 of the Planning Act, Ashley J in Kantor v Murrindindi Shire Council[16] identified those ‘who would, if a fresh application for a permit was being made, be potential objectors’ as a class of persons whose interests a decision-maker should take into account. While the primary judge held that Kantor did not support the Association’s claim to standing, she did so on the basis that the ability of affected third parties to object to a permit application would become relevant only if there had been a change of planning policy. However, in this case, there had been a relevant change in planning policy: a newly added requirement that noise assessments be audited. The Association submits, therefore, that on her Honour’s own reasoning, the change in planning policy enlivened the Minister’s obligation to take into account the interests of third parties such as the Association who would want to challenge a fresh permit application if no extension were granted.
[16][1997] AATR 285 (‘Kantor’).
The respondents made detailed submissions challenging the Association’s standing to bring the proceeding. As these submissions are broadly reflected in our reasons below, it is unnecessary to rehearse them here.
Discussion
In order to establish that it had standing to bring the judicial review proceeding, the Association had to satisfy the Court that it had a special interest in the subject matter of the proceeding, that is, that it had an interest over and above the interest of the public at large in the legality of the Extension Decision.
The Association complains specifically about the judge’s finding that the absence of historical activities by the Association meant there was no evidence that the Association represented its members’ interests and that her Honour misconstrued the statutory context in holding that the Planning Act did not contemplate third parties having standing to challenge a decision to extend time.
It is convenient to observe at this point that the primary judge did not find that the absence of historical activities by the Association meant there was no evidence that the Association represented its members’ interests. The primary judge considered the lack of historical activities to be relevant to whether the Association had a special interest in the litigation that it had initiated. It was treated as one of a number of relevant indicia. Her Honour described the enquiry as a broad one, stating that the special interest test is always fact and context specific and that there are a number of matters that are necessary to consider when determining whether incorporated plaintiffs have standing. No single factor is likely to be determinative. There is no error in such an approach.
It is, however, always necessary to focus the enquiry on the nature and extent of the relationship between the putative plaintiff and the subject matter of the litigation. For a person to have the form of ‘special interest’ in a proceeding described by Gibbs J in ACF, ‘he [must be] likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails’.[17]
[17](1980) 146 CLR 493, 530; [1980] HCA 53 (‘ACF’).
It was common ground that the Extension Decision did not affect the Association’s activities, as the Association did not exist when the Extension Decision was made and it had no existing legal, proprietary or financial interests that might be affected. It is tolerably clear that there was no advantage to be gained by the Association in bringing the proceeding other than ‘righting a wrong’ potentially suffered by others, its members. Moreover, the Association would suffer no disadvantage, other than potentially a debt for costs if its application failed.
The objects of the Association did not assist it to establish its standing. In the context of litigation involving the protection of the environment, Sackville J in North Coast Environment Council Inc v Minister for Resources[18] stated that an ‘organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and a commitment to the preservation of the physical environment’.[19] The body’s objects do not give it standing it does not otherwise have.[20]
[18](1994) 55 FCR 492.
[19]Ibid 512; see also, Environment East Gippsland v VicForests [2010] VSC 335, [78] (Osborn J)
[20]Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313, 330 [48] (Collier J); [2007] FCA 615.
A fortiori, the fact that a body has been established for the purpose of conducting litigation does not give it a special interest in the subject matter of that litigation.[21] If that were the case, the standing rules could be simply circumvented by constituting a body with the object of pursuing the litigation in question.
[21]Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests [2021] VSC 824 (‘Binginwarri’).
The Association’s contention that it has a special interest in the subject matter of the proceeding rests principally on the proposition that an association may acquire standing to challenge a decision by virtue of the special interest of its members in that decision. However, as Gibbs J said in ACF:
If it is the fact that some members of the Foundation have a special interest — and it is most unlikely that any would have a special interest to challenge the exchange control transaction — it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it.[22]
[22]ACF (1980) 146 CLR 493, 531; [1980] HCA 53 (citations omitted).
In Binginwarri Friends of the Jack and Albert River Catchment Area Inc v VicForests, Niall JA rejected the submission that in ACF Gibbs J was not addressing himself to the situation in which all of the members of an incorporated body had standing and that it should be inferred that such a body would be viewed differently.[23] As Niall JA observed, Gibbs J made the point that the issue was the standing of the plaintiff based on its conduct, activities and relationship, and that this was not merely a derivative status derived from the position of its members or corporators.[24]
[23][2021] VSC 824, [51].
[24]Binginwarri [2021] VSC 824, [51].
The courts have on occasion given weight to the interests of the members of an association when recognising its standing. Notably, in Ex parte Helena Valley/Boya Association (Inc) v State Planning Commission,[25] one of the applicants, an incorporated association, brought proceedings in the Western Australian Supreme Court seeking judicial review of a decision made in relation to the proposed amendment of a planning scheme. The association was incorporated after the relevant decision was made; however, its members consisted of local ratepayers and electors who had previously carried out activities in the form of an unincorporated association, all of whom were said to be ‘specially affected’ by the decision. In finding that the association also had standing, Ipp J (with whom Pidgeon J agreed) placed weight on the ‘the representative character of the [a]ssociation, its history, the purpose for which it was formed and the special interests of its members’.[26]
[25](1990) 2 WAR 422 (Helena Valley).
[26]Ibid 437.
Later, in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc,[27] McLure JA (Pullin JA agreeing) followed Ipp J’s approach, finding that an incorporated association had standing to challenge a property development partly due to its ‘representative character’ and the ‘special interests of its members’.[28] The association was comprised of approximately 145 members, with the majority living within 3 km of the development. Unlike in Helana Valley, however, the association was incorporated before most of the impugned decisions were made, and had previously carried out a number of activities, including holding meetings and rallies, organising petitions and lodging a submission to the Parliamentary Accounts Committee. Further, prior to its incorporation, members of the association had formed an ‘interim steering committee’, which had made submissions about the proposed development.
[27](2005) 30 WAR 138; [2005] WASCA 109 (‘MacTiernan’).
[28]Ibid 162 [101] (McLure JA), [103] (Pullin JA).
Wheeler JA, writing separately, agreed that the association had standing, but expressed reservations about the general proposition that the interests of the members of an incorporated association might be capable of conferring standing on the association itself. Although her Honour accepted that there was authority for that proposition in Western Australia, she voiced concern that the law in the State had ‘run ahead of both High Court authority, and of principle’.[29] Her Honour referred to statements in a number of High Court decisions, including Gibbs J’s judgment in ACF, to the effect that a corporate body does not acquire standing simply because its members possess it.[30]
[29]Ibid 143 [6].
[30]Ibid [8], referring to ACF (1979) 146 CLR 493, 531 (Gibbs J); Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 335, 343 (Starke J); Real Estate Institute of NSW v Blair (1946) 73 CLR 213, 224 (Latham CJ), 226 (Starke J), 228 (Dixon J); British Medical Association v Commonwealth (1949) 79 CLR 201, 247 (Dixon J); Croome v Tasmania (1997) 191 CLR 119, 126 (Brennan CJ, Dawson and Toohey JJ), 137 (Gaudron J).
In our view, Helana Valley and MacTiernan are distinguishable. In MacTiernan, as noted, the association was incorporated before most of the impugned decisions occurred, and had carried out a number of activities in relation to the development prior to commencing proceedings. In Helena Valley, although the association was incorporated after the relevant decision, its members had, as Niall JA put it in Binginwarri, ‘a collective identity and [had] engaged in conduct as a collective for the purpose of common endeavour’.[31] By contrast, the members of the Association in the present case lacked that collective history. Although some may have individually opposed the Wind Farm, there is no evidence that they ever carried out activities as a ‘collective identity’ like the unincorporated association in Helena Valley. Further, the evidence in that case showed that each of the members of the association, as ratepayers and electors in the area to which the proposed zoning changes applied, had standing in their own right. As explained below, that is not the case here.
[31][2021] VSC 824, [54].
Further, we share Wheeler JA’s reservations about the proposition that the Court can have regard to the standing of the members of an incorporated association when assessing the standing of the association itself. This approach appears not to be consistent with High Court authority.
Having regard to the foregoing, to say that an association is ‘representative’ of the people who are its members, who may or may not have a special interest in the proceeding, adds little to the Association’s claim to standing. The fact that in this case the membership of the Association is small and some of the small number of members arguably have a special interest in the subject matter of the litigation does not derogate from the fundamental requirement that the party bringing the proceeding is required to have a relevant special interest in its subject matter. The Association had to establish that, beyond its objects, it had the requisite interest in the proceeding. This required the Association to establish that the Extension Decision had a practical or legal effect on it, and that it — not just its members — would suffer a disadvantage if the Extension Decision remained on foot. This drew attention to the Association’s own history and the absence of any activities undertaken on behalf of its members (apart from bringing the judicial review proceeding).
As the respondents pointed out, there was no challenge to the following findings by the primary judge:
[T]here is no evidence of any activity by the Association to represent its members’ interests or pursue its objects, other than its commencement and pursuit of this proceeding. It has written no letters, made no submissions, held no public meetings, and had no interactions with DELWP, the Minister, or the Proponents …
[T]here was no evidence that the Association had ever actively represented its members or anyone else.
…
[T]he Association did not exist [at the time of the panel hearing on the permit amendment in 2017], even as an unincorporated association, and so was unable to rely on its past activities to show some commitment that distinguished it from the public at large.[32]
[32]Reasons, [65]–[66], [71].
Even if it were permissible to attribute the activities of its members to the Association for the purpose of establishing its standing, the primary judge was unable on the evidence to make a finding that all members of the Association would have standing to bring the judicial review proceeding in their own right. There was evidence about the interests and activities of five of the twelve members only. In our view, the evidence of Mr Bos that members had ‘long been concerned about’ the development of the Wind Farm is insufficient to establish that all members of the Association had standing in their own right.
Furthermore, as the respondent submitted, there was no evidence that the Wind Farm would cause real and substantial detriment to each of the members of the Association. The evidence of visual and noise impacts was limited to the lay evidence of Mr Bos and Mr McCosh.
As to her Honour’s alleged neglect of the ‘unchallenged evidence that the Hawkesdale Wind Farm will affect the population level of Hawkesdale’, which was said to be a ‘shared interest’ of the Association’s members, the evidence that the Wind Farm would affect the population level of Hawkesdale was both scant and speculative. It did not rise above assertion. Moreover, there was no evidence that the impact of the Wind Farm on the population of Hawkesdale was a ‘shared’ concern of all the members. And even if there were evidence to support such a finding, this would not, without more, confer representative status on the Association.
Finally, the primary judge did not err in finding that the statutory context did not support or assist the Association’s claim to standing. The Planning Act does not provide for third parties to receive notice of a request to extend a permit, whether it be made under a condition of the permit or s 69. Nor does it confer a right to object to or seek review of a decision to extend the permit.
The decision of Ashley J in Kantor is not authority for the proposition that the interests of potential objectors have to be considered when extending a permit in circumstances where there has been a change in planning policy. When describing the matters the decision-maker ‘may rightly consider’, his Honour listed
as a factor in favour of an exercise of discretion under [the former provision for extension of permits] that there has been no change in planning policy … Consideration of that matter shows, indirectly, concern for any persons who objected to the grant of the permit at the outset; or who would if fresh application for a permit was being made, be potential objectors …[33]
[33]Kantor [1997] AATR 285, 313.
The decision-maker considering the extension of a permit may consider whether there have been changes to planning policy. This consideration will incidentally show concern for persons who do not think the development should be permitted. However, the decision-maker is not required to take account of the interests of objectors directly. The statutory scheme does not include a role for third parties in the extension of permits.
In our view, the fact that there had been a change to the relevant planning policy since the 2017 amendment of the permit requiring the audit of noise assessments did not assist to give the Association standing.
We see no error in the judge’s decision that the Association did not have standing to bring the proceeding challenging the Extension Decision. Grounds 1 and 2 are not made out.
This is sufficient to dispose of the application for leave to appeal. However, given that the question was fully argued and is a matter of some importance more generally, we move to consider grounds 3 and 4, which concern the use of a permit condition to extend the time for the completion of the development.
Grounds 3 and 4: Condition 64
These grounds challenge the primary judge’s holding that Condition 64 permitted the Minister to extend the permit.
The primary judge held that the permit was incapable of being extended under s 69 of the Planning Act because no application for extension had been made by an ‘owner or occupier’ of the land. However, Condition 64 permitted the Minister to extend the periods in the permit without reference to an owner or occupier.
It will be recalled that Condition 64, after specifying when the permit will expire, provides:
The Minister for Planning as responsible authority may extend the periods referred to if a request is made in writing before the permit expires, or within 12 months afterwards.
The Association’s submission is, in substance, that as s 69 expressly provides for the extension of a permit upon application by an owner or occupier, the requirement that an application be made by an owner or occupier cannot be circumvented using a permit condition (such as Condition 64). In response, the respondents submit that the Planning Act contemplates that a permit condition may provide for the extension of the permit and an application under s 69(1) of the Planning Act is not the only pathway available.
The resolution of the dispute therefore hinges on the construction of the relevant provisions of the Planning Act.
Primary judge’s reasons
The primary judge noted that there was no dispute that the conditions for the exercise of Condition 64 were met and that if Condition 64 was valid, the extension of the permit was supported by this power.[34] Her Honour also observed that the Association did not directly impugn the validity of Condition 64 in the proceeding and the argument that it was not supported by the power in s 62(2) of the Planning Act was first raised in the Association’s reply submissions in response to the respondents’ reliance on Condition 64 as an alternative source of power.[35]
[34]Reasons, [136].
[35]Reasons, [137].
The primary judge stated that the principle of statutory construction relied upon by the Association, referred to as the Anthony Hordern principle (discussed below), assists in reconciling some conflict or repugnancy between a general and a specific provision, but whether there is a conflict between two provisions that must be reconciled depends on the text, context and purpose of the particular statute. In this case, neither text, context or purpose indicated any conflict between s 62(2) and s 69 of the Planning Act and there was no difficulty giving them an overlapping effect.[36] The list of specific conditions in s 62(2) is an inclusive list and the power to include ‘any other condition’ is not expressed to be ‘subject to this Act’ or any other limitation.[37] Moreover, ss 68 and 69 are not expressed in terms that limit or restrict any other power in pt 4 of the Planning Act.[38] Indeed, the power in s 69(2) to extend a permit complements the powers in s 68 to specify when a permit expires. The connection between ss 68 and 69 suggests that s 69 is a ‘default’ provision, that is, it provides a mechanism to extend a permit in addition to anything that may be provided in the permit.[39]
[36]Reasons, [139].
[37]Reasons, [140].
[38]Reasons, [141].
[39]Reasons, [142].
The primary judge also held that the objectives of planning in Victoria, which included facilitating development in accordance with the other objectives of planning, supported a reading of the provisions of pt 4 in a facilitative rather than a restrictive way.[40]
[40]Reasons, [144].
Her Honour held further that there is no clear policy imperative for limiting the ability to request a permit extension to the owners and occupiers of land to which the permit applies. The Planning Act contemplates the permit may be granted on the application of a person who is neither an owner nor an occupier. In that context, it is hard to see why Parliament would want to restrict requests for permit extensions in the manner contended for by the Association.[41]
[41]Reasons, [147].
As to her Honour’s reliance on the reasoning of Emerton J in Kingston City Council v Transpacific Waste Management Pty Ltd,[42] the primary judge said as follows:
I am conscious that Transpacific was decided on the narrower basis that s 69 did not provide for the extension of time for completion of the permitted use, and so could not have intended to exclude power to include a permit condition to that effect. However, Emerton J’s conclusion that s 69 is not the only source of power to extend time under a planning permit is consistent with the conclusion I have reached, by a different path of reasoning, in this case.[43]
[42](2013) 196 LGERA 156; [2013] VSC 441 (‘Transpacific’).
[43]Reasons, [148].
Her Honour concluded:
Condition 64 was a valid permit condition that enabled the Minister to extend the time for completion of the development, independently of the power in s 69 of the Planning Act. The extension of a Permit granted by the delegate was therefore supported by the power in condition 64, even though the power in s 69(2) had not been enlivened.[44]
Submissions
[44]Reasons, [149].
The Association submits that the primary judge:
(a)erred in failing to have regard to the fact that s 69 required that there be a request by an owner or occupier, which was a jurisdictional fact enlivening the responsible authority’s power to extend a permit under s 69(2);
(b)incorrectly reasoned that s 69 supplied a ‘default position’ rather than the only power to extend the permit;
(c)overlooked Parliament’s evident purpose in enacting s 69 when holding there was no clear policy imperative for Parliament to limit the ability to request a permit extension to owners and occupiers; and
(d)drew an incorrect inference as to the significance of amendments to s 69 made in 2021, that is, after the Extension Decision was made.
The Association further submits that the primary judge wrongly reasoned that her construction of s 62 was supported by the decision of Emerton J in Transpacific.
According to the Association, the judge’s finding that there was no request enlivening the Minister’s power under s 69(2) to extend the permit ought to have been dispositive, as Parliament had established a mandatory process that had to be followed in order for the permit to be extended.
The Association submits that, properly construed, the general power in s 62(2) of the Planning Act to impose conditions on a planning permit was not capable of validly authorising Condition 64 given that all parties accepted that a request by the owner or occupier of the land to which the permit applied was a jurisdictional fact necessary to enliven the extension power in s 69(2) and Condition 64 purported to allow the Minister to bypass that Parliamentary restriction. The terms of Condition 64 — allowing a request for an extension to be made by any person and permitting the request to be made within 12 months after the expiry of the permit in whatever circumstances — stand in contrast to the jurisdictional requirement in s 69 for a request to be made by an owner or occupier and the timeframes for the request imposed by s 69. If the primary judge is correct, the Minister ‘or other responsible authority in a future case’ can use the general condition-making power in s 62 to extend permits even when the jurisdictional conditions in s 69 are not satisfied.
The Association therefore submits that the responsible authority’s general power in s 62(2) to impose permit conditions is limited in circumstances where s 69(2) grants a statutory power to extend permits that is qualified by the jurisdictional conditions in s 69(1). According to the Association, the relevant principle was articulated in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia as follows:
When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[45]
[45](1932) 47 CLR 1, 7 (Gavan Duffy CJ and Dixon J); [1932] HCA 9.
According to the Association, this principle ensures the executive cannot use general powers to frustrate restrictions otherwise imposed by the Parliament. On this basis, it submits that the general power in s 62(2) to make permit conditions cannot validly support Condition 64, as that condition impermissibly empowers the Minister to grant extensions ‘free from the conditions and qualifications prescribed’ by s 69(1) of the Planning Act.
The Association submits that the primary judge’s conclusion that the Anthony Hordern principle did not apply because s 62 and s 69 could properly be given ‘overlapping effect’ and that, read contextually, s 69 was merely a ‘default position’ that a responsible authority could supplement using a permit was wrong for a number of reasons. First, it was critical that a request by the owner or occupier for an extension of the permit was a jurisdictional fact necessary to enliven the extension power in s 69(2). Had the primary judge had regard to the fact that s 69 imposed jurisdictional conditions on the power to extend permits, it would have been apparent that s 62 could not be construed in a way that permitted the exercise of the same power free from those conditions. Further, the primary judge was wrong to draw a connection between s 68 and s 69 to hold that s 69 was merely a ‘default position’ that could be supplemented by the provisions of a permit. The terms of s 69 do not resemble s 68 and s 68 does not authorise the responsible authority to specify in the permit additional or alternative methods of granting an extension. Rather, s 69 grants a power to extend subject to express conditions. It should be read according to its terms.
According to the Association, the primary judge overlooked Parliament’s evident purpose in enacting s 69, namely, to limit the class of persons who could validly request a permit extension. Throughout the Planning Act, Parliament deliberately selected different classes of persons to enjoy different rights. For example, ‘any person’ can apply for a permit, while ‘any person affected by the grant of a permit’ can object. In that context, the choice to restrict s 69(1) to ‘the owner or occupier’ must be seen to be a deliberate decision. Amendments to s 69 made in 2021, allowing ‘another person with the written consent of the owner’ to request that a permit be extended, demonstrate that Parliament intended to continue restricting the class of persons who could request an extension, but to incrementally extend that class to those who obtain the owner’s consent.
The Association posits as the rationale for this construction that owners and occupiers are a class of persons who will be particularly affected if a permit is extended, as the extension of the permit means that the activities made lawful by the permit can continue on the land that they own or occupy. It therefore ‘makes sense’ that Parliament would select owners and occupiers as the limited class of persons who can ask for the permit to continue in force. In answer to the suggestion that the permit holder was likely to be the person most affected, senior counsel argued that land owners had a legitimate interest in limiting the occurrence of ‘warehousing’ and preventing permit holders from letting ‘things drag on and on’ by applying for extensions. It was submitted that the plain purpose of s 69 was to require a permit holder to negotiate with the owner to apply for an extension. This construction strikes a proper balance between the community, the owners and occupiers of the land, and the developer. Further, while this construction might sometimes be impractical for developers, it does not answer the description of ‘ridiculous or perverse’ such that the Court should restrict the ordinary meaning of the provision.
It is submitted that it is a matter of good governance that statutory conditions regulating executive power be observed and not be able to be circumvented by the administrative decision-maker. In Forrest & Forrest Pty Ltd v Wilson,[46] the High Court confirmed that where a statutory regime confers power on the executive branch of government to grant rights to exploit the resources of the State, the requirements of that regime must be closely observed for any grant to be valid.[47] Moreover, good governance recognises that the public interest is not well served by allowing non-compliance with a legislative regime to be overlooked or excused by officers of the executive government charged with its administration.
[46](2017) 262 CLR 510.
[47]Ibid 529–30 [64]–[66] (Kiefel CJ, Bell, Gageler and Keane JJ).
According to the Association, this principle should be applied in construing the statutory regime for the extension of permits created by the Planning Act. Global Power failed to comply with the mandatory requirements of s 69. Yet the primary judge’s construction of s 62 allows the Minister to overlook and excuse such non-compliance.
Finally, the Association submits that the primary judge was wrong to find that the decision in Transpacific was consistent with her own conclusion that s 62(2) of the Planning Act authorised Condition 64. The relevant question of law in Transpacific was, in effect, whether the only source of power to extend time under the permit was to be found in s 69 of Planning Act. Emerton J held that because the Planning Act was silent on both the expiry and extension of time for completing a use, it was appropriate that any extension be regulated by a permit condition.
Once again, it is unnecessary to rehearse the submissions of the respondents, as they are largely adopted in our reasons below.
Discussion
The principal question in issue is whether, as the Association contends, s 69 of the Planning Act prescribes an exclusive and mandatory code for the extension of a permit (otherwise than by means of an amendment to the permit).[48] This raises the fundamental question of whether a permit can provide for its own extension.
[48]It was common ground that the permit could be extended using the amendment provisions, which include a raft of third party rights.
In our view, the proposition that a permit cannot provide for its extension because s 69 is an exclusive code finds no support in the Planning Act. To the contrary, the relevant provisions of the Planning Act, construed according to their plain meaning and by reference to their context and purpose, provide alternative pathways for the extension of permits.
Section 67 of the Planning Act deals with when permits come into operation and s 68 deals with when they expire. The times for both the commencement and the expiry of a permit are to be found in the permit itself. If the permit does not so specify, the respective provisions contain default periods.
Hence, while s 68 specifies times for expiry, these times are subject to the times specified in the permit. The permit — or more specifically, the relevant permit condition — is the principal determinant of when the permit expires.
The fact that the times for the commencement and completion of a use or development are specified in the permit itself reflects the fact that the permit provisions are intended to apply broadly. They apply to all kinds of developments, ranging from large infrastructure projects to minor modifications to existing domestic properties. The time required to commence or complete developments will vary markedly. Specifying the period of its operation in the permit itself reflects the fact that permit conditions are tailored specifically for the development in question. It is entirely consistent with these arrangements that a permit condition may allow for an extension of the permit. It provides flexibility, recognising that the time needed to commence or complete a development may be affected by matters unforeseen and/or matters outside the proponent’s control. Specifying that the responsible authority (or the Minister) may extend times is consistent with the objects of the Planning Act to facilitate the orderly development and use of land.
In our view, having regard to the objective of the planning framework in Victoria to facilitate development which achieves the objectives of planning in Victoria and planning objectives in planning schemes, there is good reason for construing s 62(2) as allowing permit conditions to be made that specify the circumstances in which an extension of the permit may be granted.
Giving the responsible authority (or the Minister) the power to extend time in this way is not to remove the development from regulatory control. To the contrary. The responsible authority is responsible for issuing the permit and retains control over its extension. Further, attaching a condition such as Condition 64 at the time of the grant of the permit can be subject to merits review. The possibility of an extension under such a power will be known and understood by affected parties. The position is in no way equivalent to that considered by the High Court in Forrest. The grant of a permit to develop land does not concern the exploitation of the assets of the State. The responsible authority (or the Minister) is an independent land use regulator who can and will assess whether the extension should be granted based on the relevant land use considerations.
In our view, the fact that s 69 makes provision for the extension of permits does not confine the power to make a permit condition that operates on the same subject matter. Section 69 does not in terms purport to confine the power to impose conditions under s 62(2). It is a facilitative provision which provides a mechanism by which a permit may be extended at the request of an owner or occupier.
Likewise, the text of s 62, which is expressed in the widest terms, does not purport to exclude a condition providing for an extension of a permit. It permits any condition that a responsible authority ‘thinks fit’. That is obviously not a carte blanche to impose any condition whatsoever. For a permit condition to be valid it must be reasonably capable of being related to the implementation of planning policy, as ascertained from the relevant planning legislation and the relevant planning scheme.[49]
[49]Casey City Council v Seventh Day Adventist Church (Victorian Conference) Ltd [2010] VSC 625, [58] (Emerton J).
We reject the proposition that it ‘makes sense’ that Parliament would select owners and occupiers as the limited class of persons who can ask for the permit to be extended because they are a class of persons who will be particularly affected by an extension. Section 69(1) allows either an owner or an occupier to make a request for an extension of the permit and there is no requirement for notification or consent of the other if such an application is made. It follows that s 69 cannot be construed as imposing a process that requires the involvement of owners and occupiers. The owner could proceed without the involvement of the occupier and vice versa.
Further, there is no statutory process for owners and occupiers to object to or to seek review of decisions to grant extension requests. Section 81 provides that a ‘person affected’ may seek merits review of a refusal or deemed refusal of the extension request.[50] There is no right of objection or review in relation to decisions to extend permits. And while such an application to review a refusal depends on there having been a request for an extension of time within the periods specified in sub-ss 69(1) or (1A), s 81 plainly recognises that owners and occupiers are not an exhaustive category of persons with an interest in the extension of the permit. This is consistent with the fact that the applicant for a permit need not be the owner or occupier of the land. In our view, it makes no sense that the applicant for a permit need not be the owner or occupier of the land, but only an owner or occupier may apply for its extension.
[50]Planning Act s 81(1).
We accept the Minister’s submission that there is good reason to provide a default expiry provision, like s 69, to ensure that those most likely to seek an extension (owners and occupiers) are able to do so regardless of any condition in the permit. A default extension provision avoids the potential for wasted resources which may arise should the permit omit, or provide unduly constrained, conditions relating to extensions of time.
Having regard to this analysis, the trial judge was correct to hold that neither the text, context or purpose of the statute indicated any conflict between s 62 and s 69, and there was no difficulty giving them overlapping effect.
It follows that we consider the Anthony Hordern principle to be inapplicable in this situation. It ‘must be applied subject to the particular text, context and purpose of the statute to be construed’.[51] For the principle to operate, ‘it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power’.[52] In our view, the sequence of provisions in s 62 and ss 67 to 69 shows that the power in s 69 is supplementary in nature. Accordingly, the preconditions to its exercise do not limit the power in s 62(2). This is not a case where the provisions are ‘repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations’.[53] The provisions can and should be read so that they operate together. The relevant question is whether Parliament intended to exclude a general power to impose permit conditions allowing for extensions of the permit by making specific provisions for permit extensions in s 69. On the basis of the construction that we prefer, the answer to this question must be ‘no’.
[51]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 177 [50] (French CJ); [2011] HCA 32. See also Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 586 [54] (Gummow and Hayne JJ); [2006] HCA 30 (‘Nystrom’).
[52]Nystrom (2006) 228 CLR 566, 589 [59] (Gummow and Hayne JJ); [2006] HCA 30.
[53]Ibid 571 [2] (Gleeson CJ).
We observe in this context that it is not unusual for statutory provisions to have overlapping effect. As Gleeson CJ said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom of provisions which had overlapping effect:
They create two sources of power, by which a person in the position of a respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual about that.[54]
[54]Ibid.
Because there is ‘nothing novel or even particularly unusual’ about a statute providing two mechanisms that may produce similar consequences by different processes, it is not enough merely to observe that two powers ‘overlap’. For one of the powers to be impliedly confined by the other, ‘a convincing argument of statutory construction’ must lead to that outcome.[55]
[55]Ibid.
In this case, the breadth and purpose of the power in s 62(2), together with the fact that ss 67 and 68 explicitly give primacy to permits in determining when they commence and when they expire, tell against drawing an inference from s 69 that the power in s 62(2) is confined by that provision.
Grounds 3 and 4 are not made out.
Disposition
The Association submitted that if it was held not to have standing, the proceeding should be remitted to the Trial Division to enable the individuals who may have standing to be joined in order to agitate the challenge to the Extension Decision.
As we have concluded that the grounds upon which the challenge to the Extension Decision is brought are not made out there is no utility in pursuing such a course.
Accordingly, leave to appeal will be refused.
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SCHEDULE OF PARTIES
| THE PEOPLE OF THE SMALL TOWN OF HAWKESDALE INC | Applicant |
| and | |
| MINISTER FOR PLANNING | First Respondent |
| GLOBAL POWER GENERATION AUSTRALIA PTY LTD (ACN 130 542 031) | Second Respondent |
| HAWKESDALE ASSET PTY LTD (ACN 643 793 711) | Third Respondent |
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