Trist v Glenelg Shire Council
[2023] VSC 128
•22 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01830
| SONIA TRIST & ORS (according to the attached schedule) | Plaintiffs |
| v | |
| GLENELG SHIRE COUNCIL & ANOR (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2023 |
DATE OF JUDGMENT: | 22 March 2023 |
CASE MAY BE CITED AS: | Trist v Glenelg Shire Council |
MEDIUM NEUTRAL CITATION: | [2023] VSC 128 |
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ADMINISTRATIVE LAW – Judicial review – Notification to Council of alleged nuisance due to noise from wind farm under Public Health and Wellbeing Act 2008 (Vic) s 62(1) – Whether letter from a mayor of the Council gave rise to an apprehension of bias – Fair-minded lay observer test – Whether Council’s resolution is a decision for the purposes of Administrative Law Act 1978 (Vic) s 8 – Whether the plaintiff’s legal rights were affected – Whether Council obliged to give reasons – Public Health and Wellbeing Act 2008 (Vic) s 62 – Administrative Law Act 1978 (Vic) s 8.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J Fetter | DST Legal |
| For the First Defendant | Mr O Ciolek | Russell Kennedy Lawyers |
| For the Second Defendant | Ms F Batten | MinterEllison |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Nuisance and the Public Health and Wellbeing Act 2008...................................................... 2
C. Did the Mayor’s letter give rise to an apprehension of bias?.............................................. 4
C.1The principles that apply..................................................................................................... 4
C.2The Mayor’s letter and the process generally................................................................... 4
C.3The response of the fair-minded lay observer................................................................ 11
C.4The difficulty if a decision is made by a group of people............................................. 14
D. Is s 8 of the Administrative Law Act 1978 engaged?........................................................... 15
D.1Preliminary argument that the definition does not apply............................................ 15
D.2Did the resolution operate in law to determine a question affecting the plaintiffs’ rights?.............................................................................................................................................. 17
D.2.1 - The statutory provisions and obligations on the Council............................... 18
D.2.2 - What is a ‘right’ of a person?............................................................................... 20
D.2.3 - What consequences would flow from a decision that there was a nuisance? 22
D.2.4 - Did the decision affect the plaintiffs’ rights?.................................................... 25
E. Disposition................................................................................................................................... 27
HIS HONOUR:
A. Introduction
The seven plaintiffs are the occupants of three houses in the vicinity of the Cape Bridgewater Wind Farm that is operated by Pacific Hydro Portland Wind Farm Pty Ltd (‘Pacific Hydro’), the second defendant. Between 19 July 2018 and 26 June 2019, the plaintiffs notified the Glenelg Shire Council (‘the Council’), the first defendant, within whose boundaries the wind farm operates, that they believed that the noise that emanated from the wind farm constituted a nuisance and that they required the Council ‘to fulfil its statutory obligations and investigate the nuisance’ and to take action to remedy it. The reference to a ‘statutory obligation’ was a reference to an obligation that was placed on local councils by Part 6 of the Public Health and Wellbeing Act 2008 (‘the PHW Act’) to investigate ‘any notice of a nuisance’.
The Council investigated. The Council and Pacific Hydro each engaged experts to provide reports. The reports were circulated and submissions were invited and provided. Two employees of the Council then prepared a ‘Nuisance Investigation Report’ in which they recommended that the Council conclude that the wind farm did not emit noise that was a nuisance. That process took several years. Ultimately, at a council meeting held on 22 March 2022, the Council, in accordance with the recommendations in the Nuisance Investigation Report, resolved that ‘there is no nuisance’.
On 25 July 2019, which was during but quite early in the process, the Mayor, Councillor Anita Rank, wrote a letter to the then Minister for Health in which the Mayor, on behalf of the Council, requested changes to the legislation that would remove or reduce the burden on councils of them having to investigate nuisance claims against wind farms. The letter was copied to the mayors of neighbouring councils. The plaintiffs contended, by reference to this letter, that the Council’s 22 March 2022 decision was ‘affected by an apprehension of bias’ and was thus unlawful. Pacific Hydro disagrees. The question is whether the lay observer might reasonably apprehend that the Council, or perhaps just the Mayor, might not have brought an impartial mind to the resolution of the question as to whether the noise constituted a nuisance.[1] The Council, other than making submissions on the legal test that applies, did not take a position on this issue, in accordance with the principles set out in R v The Australian Broadcasting Tribunal; Ex parte Hardiman.[2] Pacific Hydro expressed some concern at having being added as a defendant in the proceeding in order, as I understood it, to reserve its right to argue that it should not have to pay any costs even if the claim were to succeed, but otherwise acted as the effective contradictor.
[1]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-345 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). This test applies to councils as well as to judicial bodies: McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 507 [2] (Spigelman CJ), 516-517 [71] (Basten JA); see also Isbesterv Knox City Council (2015) 255 CLR 135.
[2](1980) 144 CLR 13.
The plaintiffs also sought reasons, or further reasons, from the Council under s 8 of the Administrative Law Act 1978 (‘the AL Act’). Both the Council and Pacific Hydro contend that the Council’s decision was not a decision of the type that engaged that section. Neither submitted that if the section were engaged then adequate reasons had been provided.
B. Nuisance and the Public Health and Wellbeing Act 2008
The statutory obligation on the Council and the relevant definitions are contained in Division 1 of Part 6 of the PHW Act. Section 62(1) permits a person who ‘believes that a nuisance exists’ to notify the relevant council. Section 62(2) states that a council ‘must investigate any notice of a nuisance.’ Section 62(3) then sets out steps that a council must take ‘if, upon investigation, a nuisance is found to exist’.
The PHW Act does not define the term ‘nuisance’ and that term is to be given its meaning under the common law of torts. However, the PHW Act does include some provisions that qualify its meaning for the purposes of the Act. Section 58 states:
(1)This Division applies to nuisances which are, or are liable to be, dangerous to health or offensive.
(2)Without limiting the generality of subsection (1), this Division applies in particular to nuisances arising from or constituted by any—
...
(e) noise or emission ...
...
which is, or is liable to be, dangerous to health or offensive.
...
(3)For the purpose of determining whether a nuisance arising from or constituted by any matter or thing referred to in subsection (2) is, or is liable to be, dangerous to health or offensive—
(a)regard must not be had to the number of persons affected or that may be affected; and
(b) regard may be had to the degree of offensiveness.
(4) In this section—
offensive means noxious or injurious to personal comfort;
A nuisance is committed at common law if a person, other than in the reasonable and convenient use of their land, creates a state of affairs that, to a substantial degree, interferes with another’s enjoyment of their land.[3] The emission of sound can be a nuisance[4] and there is no requirement that the conduct injure the other person’s health.[5] There are two value judgments that have to be made. The first is as to the extent of the interference arising from the use of the land, and the second is as to whether, having regard to that level of interference, the use is nonetheless reasonable.[6] The fact that the use is otherwise a lawful use for which there is planning permission does not prevent it from creating a nuisance.[7] The test, in the case of noise, has been expressed in the following terms:
To establish a nuisance, the plaintiffs must show that there has been a substantial degree of interference with their enjoyment of their use of [their house]. What constitutes such a substantial degree of interference must be decided according to what are reasonable standards for the enjoyment of those premises. What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise.[8]
[3]Hargrave v Goldman (1963) 110 CLR 40, 62 (Windeyer J).
[4]See, eg, Gaunt v Finney (1872) LR 8 Ch App 8, [12]; Cohen v City of Perth (2000) 112 LGERA 234, 263 (Roberts-Smith J).
[5]Crump v Lambert (1867) LR 3 Eq 409, 412 (Lord Romilly MR).
[6]Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Management (2012) 42 WAR 287, 309 [118] (McLure P, Buss JA agreeing). See also, eg, Kennaway v Thompson [1981] QB 88, 94 (Lawton LJ): ‘The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live’.
[7]Wheev v JJ Saunders Ltd [1996] Ch 19, 30 (Staughton LJ), 35 (Peter Gibson LJ), 37 (Sir John May).
[8]Oldham v Lawson (No 1) [1976] VR 654, 655 (Harris J).
The nuisance must also meet the additional statutory requirement set out above that it be, or be liable to be, dangerous to health or offensive in the sense of noxious or injurious to personal comfort.
C. Did the Mayor’s letter give rise to an apprehension of bias?
C.1 The principles that apply
The Council, as the adjudicator of the issue, was required to be impartial and to avoid not only actual bias but also an apprehension of bias. This is because justice must not only be done but must be seen to be done. As noted above, there will be an apprehension of bias if a fair-minded lay observer might reasonably apprehend that the Council, or perhaps just the Mayor, might not have brought an impartial mind to the resolution of the question as to whether the noise constituted a nuisance.[9]
C.2 The Mayor’s letter and the process generally
[9]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 334 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ), 363 [83] (Gaudron J), 396 [182] (Callinan J).
The plaintiffs contend that the 25 July 2019 letter sent by the Mayor indicated that she might not have been impartial. That letter was in the following terms (I have added the paragraph numbers for ease of reference):
Dear Minister
Re: Glenelg Shire Council submission - Wind Farm Noise Assessment under Public Health and Well Being Act 2008
1. The Glenelg Shire Council is writing to request changes in regards to its obligations to investigate nuisance complaints under the Public Health and Well Being Act 2008.
2. For context, Council has received nuisance complaints about the Cape Bridgewater Wind Farm Energy Facility. The construction and post construction noise monitoring of the wind farm was approved by the State Government’s Minister for Planning.
3. Under Section 62 of this Act, Council must investigate any notice of nuisance. In a recent case involving South Gippsland Shire Council and the Bald Hills Energy Facility, the Supreme Court found that Council had failed to properly investigate this matter. The court required that Council undertake independent comprehensive analysis of that wind farm to fulfil its obligations.
4. However despite this conducting further detailed assessment, it was still considered that just because a windfarm is compliant with the relevant noise guidelines didn’t mean it didn’t create a noise nuisance. Attached is a copy of the legal advice which was publicly tabled by South Gippsland Shire Council - see page 19 from point 42 onwards in the advice.
5. The Glenelg Shire Council now finds itself in the position of having to undertake a full acoustic and health assessment of the Cape Bridgewater Wind Farm. Council’s Environmental Health Officer is not trained or qualified to independently assess noise emissions from a wind farm, or to reach conclusions whether or not the noise constitutes a nuisance. They are not expected to have this level of training and experience. This makes it somewhat difficult for Council to fulfil its statutory duties of determining whether or not a noise nuisance exists. Therefore external expertise is required.
6. The association (scil, associated) costs to our ratepayers for the investigation alone, is expected to exceed $80,000. These costs are the result of a party lodging a short email alleging a nuisance, which Council is obliged to investigate in order to fulfil its obligations within the Act. In context this wind farm’s approval was not decided by Council.
7. Such costs to the ratepayer cannot be sustained. Council requests the Minister for Health to change the provisions of Public Health and Well Being Act 2008 around nuisance.
8. Under the current legislation a conflict exists where a wind farm can be approved by the Minister for Planning as compliant with noise guidelines under the Planning and Environment Act 1987, yet still be able to pose amenity nuisance for noise under the Public Health and Well Being Act 2008 by Council.
9. One means to address this is to update the interpretation on nuisance. This is so that where a wind farm complies with the relevant noise guidelines, then it does not pose a nuisance. Council is also open to other solutions such as these matters being addressed by the Environment Protection Agency who would have relevant technical capacity to do so.
10. Without such changes ratepayers around the state will continue to be subject to excessive costs for investigations in relation to wind farm nuisance. The State Government’s objective to achieve renewable energy targets may also be hindered by complaints utilising this part of the Act because of their opposition to wind farms rather than a genuine nuisance complaint.
11. If you have any further questions please contact [redacted] on [redacted].[10]
Yours faithfully
CR ANITA RANK
Mayor
[10]The personal and contact details set out here were redacted in the copy of the letter which was before me.
The fair-minded lay observer is attributed with knowledge of the circumstances of the case.[11] The following is a chronology of some of the relevant events that the fair-minded lay observer is taken to know:
[11]Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, 519; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [84] (Whelan, Santamaria JJA and T Forrest AJA) and the cases cited therein.
(a) Between April 2016 and September 2017, another council, the South Gippsland Shire Council, received a number of requests that it investigate alleged nuisances constituted by the noise emanating from the Bald Hills Wind Farm. In March 2018, that council engaged an external expert to conduct an ‘independent investigation’ into the nuisance notification.
(b) In July 2018, the first and second plaintiffs requested the Council (that is, the Glenelg Shire Council) to investigate what was alleged to be a nuisance constituted by the noise emitted by the Pacific Hydro Wind Farm.
(c) In September 2018, the expert engaged by the South Gippsland Shire Council reported that, in his opinion, the noise emitted by the Bald Hills Wind Farm was a nuisance. In October 2018, Bald Hills Wind Farm obtained opinions in reply that criticised and disagreed with that conclusion.
(d) On 7 November 2018, the plaintiffs’ solicitors wrote to the Council’s solicitors. The letter, among other things, addressed a request that had been made by the Council for a medical opinion on the effect of the alleged nuisance on the plaintiffs.
(e) On 6 February 2019, the complainants to the South Gippsland Shire Council about the Bald Hills Wind Farm, and the Bald Hills Wind Farm itself, made presentations to the South Gippsland Shire Council.
(f) On 6 March 2019, the third plaintiff requested the Council to investigate what was alleged to be a nuisance constituted by the noise emitted by the Pacific Hydro Wind Farm. The third plaintiff had engaged the same lawyers that the first and second plaintiffs had engaged.
(g) On 18 April 2019, the Council wrote to the Minister for Planning supporting a request made by another council, the Moorabool Shire Council, that the ‘wind farm noise compliance assessment process’ be performed by the Environment Protection Authority rather than by councils because councils lacked the expertise and because of the cost of that process.
(h) On 13 June 2019, the Council engaged Arup Australia Pty Ltd (‘Arup’) to provide a report on whether the noise impacts from the Pacific Hydro Wind farm at the plaintiffs’ residences exceeded the relevant standard, NZS 6808:2010 Acoustics – Wind farm noise, and to provide an opinion on whether the noise constituted a nuisance.
(i) On 26 June 2019, the fourth to seventh plaintiffs (who are members of one family) also requested the Council to investigate what was alleged to be a nuisance constituted by the noise emitted by the Pacific Hydro Wind Farm. They, too, had engaged the same lawyers that the first, second and third plaintiffs had engaged.
(j) On 25 July 2019, the Mayor wrote the letter to the Minister for Health, the correspondence that has given rise to the dispute in this proceeding, set out in para 10 above.
(k) On 21 November 2019, the Minister responded to the Mayor’s letter saying that the department was considering changes to the approaches to managing wind farm noise compliance.
(l) On 10 June 2020, the Council wrote again to the Minister for Planning. It sought advice from the Minister as to whether the noise complied with Condition 13 of the relevant planning document that approved the Pacific Hydro Wind Farm.
(m) On 10 June 2020, Arup provided its finalised report. The report had taken just over a year to complete. Arup had monitored the noise at the plaintiffs’ houses over a seven week period, analysed the recordings under different conditions including by reference to ‘special audible characteristics’, and assessed the noise attributable to the wind farm with the background noise monitoring that had taken place in 2006 and 2010. Arup concluded that the noise met the NZS 6808:2010 Acoustics – Wind farm noise standard at two of the four houses it considered (which included the plaintiffs’ three houses) but exceeded it at two of the houses including one of the plaintiffs’ houses. Importantly, Arup opined that the noise emitted by the wind farm did not constitute a nuisance, as defined in the PHW Act, at any of the houses.
(n) On 27 July 2020, the Minister responded to the 10 June 2020 letter from the Council referred to in para 0 above. The Minister suggested that an ‘environment audit report’ be obtained and indicated that he looked forward ‘to receiving the final report and environmental audit report when they are complete’.
(o) On 7 September 2020, the plaintiffs’ solicitors wrote to the Council and made lengthy submissions in relation to the methodology adopted by Arup and what the Council should conclude.
(p) On 5 March 2021, the Council wrote again to the Minister following receipt of the 27 July 2020 letter referred to in para 0 above, seeking an explanation for why the wind farm had been approved where there was evidence that the standard was not complied with at one house, and asking that the department, instead of the Council, conduct the ‘environment audit report’.
(q) On 25 May 2021, Resonate, a consultancy firm specialising in acoustic engineering, provided Pacific Hydro with an opinion on the noise level measurements that had been performed in 2009 and 2010.
(r) On 1 July 2021, changes to the PHW Act came into operation.[12] As from 1 December 2021, councils were no longer required to investigate claims that the noise emitted by a wind farm was a nuisance. This was one of the changes the Mayor had identified as desirable in her 25 July 2019 letter. The change was not retrospective,[13] so the obligation on the Council to investigate the complaints made by the plaintiffs in this case continued.
[12]The changes were made by the Public Health and Wellbeing Amendment Act 2021 (Vic).
[13]See Public Health and Wellbeing Act 2008 (Vic) s 246F(2).
(s) On 23 August 2021, Resonate provided a second report to Pacific Hydro. It had performed its own monitoring, and opined that the wind farm complied with NZS 6808:2010 Acoustics – Wind farm noise at each house and that the methodology that Arup had used had led it to overestimate the wind farm noise levels.
(t) On 21 September 2021, Pacific Hydro provided the Council with a lengthy set of written submissions.
(u) On 27 September 2021, the Council sent Pacific Hydro’s submissions to the plaintiffs’ solicitors, invited them to respond, and offered the necessary time for them to do so.
(v) On 8 November 2021, the plaintiffs’ solicitors provided the Council with a written submission. The solicitors had, by this time, obtained a copy of the Mayor’s 25 July 2019 letter. They contended that the Mayor should disqualify herself from participating in the Council’s decision making.
(w) On 29 November 2021, the Council wrote to the plaintiffs’ solicitors, indicated that it would seek a response to their submissions from Pacific Hydro, and then make a decision.
(x) On 6 December 2021, Pacific Hydro provided further submissions to the Council.
(y) On 24 February 2022, the Council’s internal Nuisance Investigation Report was completed. This report was prepared by the Council’s ‘Manager Environment Health’ and ‘Regulatory Service Manager’. It considered, among other things, the plaintiffs’ complaints, the Arup report, the submissions made on behalf of the plaintiffs and Pacific Hydro, the legislation, and what amounts to a nuisance at common law. In this last respect, it adopted the definition given by Richards J in Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council.[14] The Nuisance Investigation Report recommended that the Council advise the plaintiffs that it is not satisfied that the noise from the wind farm was a nuisance.
[14][2020] VSC 512.
(z) On 17 March 2022, the Council gave notice of a meeting to be held on 22 March 2022. The nuisance investigation was on the agenda. The agenda set out the conclusions of the Council’s Nuisance Investigation Report and recommended that the Council resolve that ‘there is no nuisance constituted under the Public Health and Well Being Act 2008 in relation to each of the allegations.’ The Nuisance Investigation Report was included with the notice of meeting as a confidential exhibit, so it was, I infer, provided to the councillors who were called upon to vote on the resolution but not to other persons. The plaintiffs asked for, but were not provided with, a copy of the Council’s Nuisance Investigation Report.
(aa) On 22 March 2022, the Council passed the resolution referred to above. Two of the councillors recused themselves because of conflicts of interest for reasons unrelated to this proceeding. The motion was passed unanimously by the remaining five members with no or little discussion. The Mayor voted.
(bb) On 10 June 2022, following a request under the Freedom of Information Act 1982 made on 31 March 2022, the Council provided the plaintiffs’ solicitors with a copy of its Nuisance Investigation Report.
C.3 The response of the fair-minded lay observer
In order to satisfy the legal test for apprehended bias, the plaintiffs must identify the events or circumstances relied upon and then articulate the logical connection between those events or circumstances and the ‘feared deviation from the course of deciding a case on its merits’.[15] There must then be an assessment of the ‘reasonableness of the asserted apprehension of bias’.[16]
[15]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [8].
[16]Ibid. See also Isbester v Knox City Council (2015) 255 CLR 135, 155 [59] (Gageler J) and the discussion in Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [77]-[82] and the cases cited therein.
The Mayor held a political role with a responsibility for the good management of the Council. A council member, and in particular a mayor, has many responsibilities and is not to be treated as if they were a judicial officer.[17] If the Mayor believed that a piece of legislation placed an inappropriate burden on the Council, it is to be expected that she might seek to have the legislation amended. Accordingly, the fact that the Mayor was seeking to persuade the Minister to amend relevant legislation should not of itself give rise to an apprehension of bias.
[17]Cf, eg, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 539 [102] (Gleeson CJ and Gummow J); McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 507 [7], 510-511 [32] (Spigelman CJ), 516-517 [71] (Basten JA).
The plaintiffs recognised this. They submitted, however, that the Council might be perceived by the fair-minded lay observer as having an interest in the outcome, as having pre-judged the issue, or as having ‘animus’ towards the plaintiffs. The interest in the outcome was said to arise from the view expressed in the letter that the process was very burdensome: the Council might have an interest in a finding of no nuisance because that would discourage other applications. It was suggested that the observer might detect ‘an inappropriate concern by the Mayor to protect the Council’s budget’ with a view to ‘improving her own electoral position next time elections came round’ and that she was displaying ‘an interest in assisting the state government in meeting policy objectives’ and was ‘sucking up to government’. The prejudgment was said to arise from the suggestion that persons could complain of a nuisance for an ulterior purpose rather than because there was a genuine nuisance: the Council might have already formed that opinion of the plaintiffs. The plaintiffs submitted that there was ‘no doubt’ that the Mayor was referring to them in para 10 of her letter: ‘the Mayor might as well have just said, “I don’t believe these complainants are well-motivated”.’ The animus was said, as I understood it, to emerge from the tone and content of the letter generally. It was suggested that the letter revealed ‘a sense of the desire to punish the complainants’ and that ‘she seems to be so aggrieved by the bringing of the complaints that … she’s moved from a persona who is neutral … to somebody who has, perhaps at least in perception, a personal reason to retaliate or punish or make sure that these plaintiffs don’t succeed in what she apparently thinks is a misconceived or inappropriate endeavour.’
I do not read the Mayor’s letter in these ways. The test for ostensible bias has two ‘mights’: it is whether the fair-minded lay observer might consider that the Council (or the Mayor) might not have been impartial. However, the possibilities contained in the test must be ‘real and not remote’[18] and the lay observer, as well as not being ‘compliant’, is also fair-minded, ‘reasonable’ and not ‘unduly sensitive or suspicious’.[19] The suspicion of bias must be ‘reasonably – and not fancifully – entertained by responsible minds’.[20] The letter was designed to persuade the Minister to make a change to the law. The use of language or the giving of examples designed to make the letter more likely to appeal to the Minister does not give rise to a fear of impartiality or prejudgment. Further, the concerns the Mayor raised were real, as reflected by the fact that amendments were subsequently made; it was easy for people to make a complaint, and if a complaint were made, councils did have to engage external experts at considerable expense to perform the complex investigation required. Those are simple statements of fact. The Mayor’s apparent dissatisfaction with the process that the Council was required to undergo is no reason to conclude that she was or might be biased in the determination of any particular case. Similarly, the Mayor’s reference to the possibility that persons may make complaints that are not genuine because of their opposition to wind farms does not, in my view, convey that no complaints are genuine, let alone that the plaintiffs’ complaints are not genuine. This sentence should be seen as an attempt to persuade the Minister, rather than as a reflection of possible prejudice or bias. There is nothing in the letter that would suggest to the lay observer, as a matter of real rather than remote possibility, that the Council might not properly perform the investigation required of it or that the Mayor might not dispassionately determine the plaintiffs’ claims on their merits.[21] If anything, the Mayor’s complaints about the process are consistent with a mayor who felt obliged to follow that process notwithstanding its expense.
[18]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[19]Johnson v Johnson (2000) 201 CLR 488, 493 [12] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ), 508 [53] (Kirby J); CNY17 v Minister for Immigration (2019) 268 CLR 76, 87-88 [19] (Kiefel CJ and Gageler J); Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [84].
[20]R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546, 553 (Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, 87-88 [19] (Kiefel CJ and Gageler J).
[21]Cf Isbester v Knox City Council (2015) 255 CLR 135.
Even if there were some reason to consider that the Mayor might have had a predisposition to find against the plaintiffs at the time she wrote the letter, there is no reason to conclude that she, or the Council, would not fairly determine the issue when they came to consider it many months later following the provision of the detailed investigatory material and the parties’ submissions.[22] This is particularly so given that the legislation had been changed more than eight months prior to the Council meeting at which the decision was made so there was no reason to think that the Mayor, or the Council, might have decided against the plaintiffs at that stage in order to discourage similar claims from being made by others.[23]
[22]Cf Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531-532 [72] (Gleeson CJ and Gummow J), 564 [185] (Hayne J).
[23]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 350 [30] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The inferences the plaintiffs sought may have been able to be drawn from the wording of the letter if there were other aspects of the Council’s behaviour that raised a significant concern about the Council’s attitude to the plaintiffs’ claims. But there were none. On the contrary, as the detailed chronology of events set out in para 11 above reveals, for many months after the letter was sent the Council continued with the process of investigating the plaintiffs’ complaints including by continuing the retention of the external experts who performed acoustic testing, and then seeking and exchanging submissions from interested parties. The Council had also engaged external lawyers to assist it with the investigation. This all tends to suggest that the Council was taking its task seriously and acting responsibly.
The plaintiffs also relied on the fact that the letter was copied to the other mayors but not copied to them. The copying to the other mayors was relied on to support a submission that the observer might detect a hope in the Mayor ‘to attract political renown and praise from her colleagues and be seen as the cheerleader for this reform’, which was indicative of a conflict of interest. I do not consider the circulation of the letter to be significant or surprising or that it would give rise to those concerns. It was a letter to the Minister that related to matters of general policy rather than to the specifics of the plaintiffs’ cases. Nothing flows from the Mayor’s failure to copy it to the plaintiffs.
In my judgment, when the Mayor’s 25 July 2019 letter is seen in context, the fair-minded lay observer would not think that the Mayor might not bring an impartial mind to the question under consideration that culminated in the decision made on 22 March 2022. Accordingly, I reject the plaintiffs’ contention that the decision was affected by ostensible bias.
C.4 The difficulty if a decision is made by a group of people
Under the legislation, the decision had to be made by the Council. The Council is a body corporate constituted by elected councillors. There is no suggestion that it formally delegated the decision making power to any other person (assuming that that would have been allowed), and its decision was recorded in a resolution passed by the Mayor and four other councillors. There was no suggestion that anyone other than the Mayor had revealed a lack of impartiality, and the resolution could have been passed by a simple majority. This raised a complex question as to whether the decision by the Council could be impugned if one only of the persons who voted had revealed an apprehended bias. In light of my finding, I do not have to decide this issue.
D. Is s 8 of the Administrative Law Act 1978 engaged?
If I were not prepared to make an order in the nature of certiorari quashing the Council’s decision or to declare that the decision was invalid, the plaintiffs sought an order that the Council provide reasons, or further and better reasons, for its decision. That application was brought under s 8 of the AL Act.[24]
[24]It was not suggested that the Public Health and Wellbeing Act 2008 (Vic) imposed an obligation on the Council to provide reasons for its decision, and there is no obligation at common law: Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 662 (Gibbs CJ), 671 (Wilson J), 675 (Brennan J), 675-6 (Deane J), 678 (Dawson J).
Section 8(1) of the AL Act provides as follows:
8 Reasons for decision to be furnished by tribunal on request by party concerned
(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.
Section 8(4) empowers this Court to order the tribunal to provide further reasons if the reasons provided are not adequate to see whether the decision does or does not involve any error of law.
It was common ground that the Council was a ‘tribunal’. The dispute was whether the plaintiffs were persons ‘affected by a decision’. Section 2 of AL Act contains the following definitions:
2 Definitions
In this Act unless the context of subject-matter otherwise requires–
decision means a decision operating in law to determine a question affecting the rights of any person …;
person affected in relation to a decision, means a person … whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision which has been made … or ought to have been made by the tribunal;
D.1 Preliminary argument that the definition does not apply
The plaintiffs submitted that the definition of ‘decision’ in s 2 should not apply to the word ‘decision’ where it appears in s 8(1) of the AL Act because ‘the context of the subject-matter otherwise requires’. No authorities were cited to support this submission, and it was acknowledged that the recent Court of Appeal case of Keasey v Director of Housing[25] is against it. The Court of Appeal in Masters v McCubbery[26] also assumed that the definition of ‘decision’ in s 2 of the AL Act applied in s 8(1) of the AL Act. However, the matter appears not to have been argued in either of those cases.[27]
[25](2022) 66 VR 45, 50 [13] (Niall, Emerton and Whelan JJA).
[26][1996] 1 VR 635, 640 (Winneke P).
[27]Indeed, it appears that the argument is novel and that for the past 45 years s 8(1) of the AL Act has been interpreted on the assumption that it applies only to a ‘decision’ as defined in s 2.
The plaintiffs’ argument was that because a decision attended with jurisdictional error ‘is properly regarded, in law, as no decision at all’[28] it could never operate in law to determine a question affecting the rights of a person, and accordingly could never be a ‘decision’ within the definition in s 2. They then reasoned that if the word ‘decision’ in s 8(1) picked up the definition in s 2, that would mean that a person affected could not obtain reasons for a decision that was attended with jurisdictional error, which would be contrary to the legislative intent. That result would be avoided, it was submitted, by giving the word ‘decision’ in s 8 its usual meaning including decisions that did not operate in law to determine a question affecting the rights of a person. To the extent that there had to be some control on the breadth of s 8(1), it was found in the requirement that the applicant for reasons had to be a ‘person affected’ by the decision.
[28]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-615 [51], 616 [53] (Gaudron and Gummow JJ).
The plaintiffs did not develop their argument[29] to the extent of seeking to place it in an interpretation of the AL Act as a whole. They did not, for example, identify other provisions where the defined term would apply or identify a legislative purpose for any selective application of the definition. If the plaintiffs’ argument were correct, then either there was no room in the statute for the definition in s 2 to operate, or the statute created a category of ‘decisions’ for which reasons could be sought that differed from the category of ‘decisions’ that could be reviewed under the other provisions of the AL Act. That would be a most surprising result.
[29]It was not contained in the written submission filed before trial.
In my view, the paradoxical result that the plaintiffs rely on is avoided if the definition of ‘decision’ in s 2 is read as including a decision that, if it be valid, operates in law to determine a question affecting the rights of any person. One purpose of obtaining reasons is so that the lawfulness of a decision may be evaluated on the grounds that, for example, it was made without having regard to a mandatory consideration.[30] Any dispute as to whether reasons must be provided will typically be determined before a determination as to whether the decision is unlawful. It is a natural use of language to describe an unlawful decision as a ‘decision’ and to consider that it affects the rights of a person until such time that it is found to be unlawful, notwithstanding that, if it is found to be unlawful, it may then be said that it was legally ineffective from the time it was made. That is how I interpret the definition of ‘decision’.
[30]See, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
Accordingly, the obligation in s 8 to provide reasons for a decision only applies to a decision as defined in s 2. It is, therefore, necessary for the plaintiffs to establish that the Council’s resolution (if it be valid) ‘operated in law to determine a question affecting’ their rights.
D.2 Did the resolution operate in law to determine a question affecting the plaintiffs’ rights?
The Council’s decision determined the question it was obliged to consider as to whether there was a nuisance. The issue in the case was whether the Council’s determination of that question affected the plaintiffs’ rights.
The language in the definition of ‘decision’ picked up, it seems, the language used by Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd[31] to describe the circumstances in which a court exercising supervisory jurisdiction may remove a decision and quash its legal effects by an order of certiorari. The statutory intention was, presumably, to give a person affected a right to reasons if the decision was one that could be subjected to the prerogative writs but not otherwise. That background is useful to bear in mind, but the starting point must be the statutory text.[32]
[31][1924] 1 KB 171, 205.
[32]Keasey v Director of Housing (2022) 66 VR 45, 51 [20] (Niall, Emerton and Whelan JJA).
D.2.1 - The statutory provisions and obligations on the Council
In order to decide whether the Council’s resolution or finding that there was no nuisance operated in law to determine a question affecting the plaintiffs’ legal rights, it is necessary to consider in some detail the statutory provisions in Division 1 of Part 6 of the PHW Act. Those provisions give rise to the obligation on the Council to investigate the nuisance and identify the consequences, if any, of the finding. Division 1 of Part 6 is headed ‘Nuisances’ and applies ‘to nuisances which are, or are liable to be, dangerous to health or offensive’.[33] First, s 60 imposes a duty on a council to remedy nuisances:
[33]Public Health and Wellbeing Act 2008 (Vic) s 58(1).
60 Duty of Council
A Council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district.
Next, s 62 imposes an obligation on a council to investigate a claim of nuisance:
62 Notification of nuisance
(1) If a person believes that a nuisance exists, that person may notify the Council in whose municipal district the alleged nuisance exists.
(2) The Council must investigate any notice of a nuisance.
There is no requirement that the person notifying the council, and causing the need for an investigation, be a person who is affected by the nuisance.
The PHW Act, by necessary implication, requires the council’s investigation to result in either a finding that a nuisance exists, or in a finding that a nuisance does not exist. The PHW Act is silent as to what may happen if the council finds that a nuisance does not exist. Presumably, the council is entitled to do nothing. The consequences of a finding by the council that a nuisance does exist are contained in s 62(3) and following of the PHW Act:
62 Notification of nuisance
…
(3) If, upon investigation, a nuisance is found to exist, the Council must—
(a)take any action specified in subsection (4) that the Council considers appropriate; or
(b) if the Council is of the opinion that the matter is better settled privately, advise the person notifying the Council of the nuisance of any available methods for settling the matter privately.
(4) For the purposes of subsection (3)(a), the Council may—
(a) if section 66 applies, exercise the powers conferred by that section;
(b) issue an improvement notice or a prohibition notice;
(c) bring proceedings under section 219(2) for an offence against this Act.
Section 62(4)(a) refers to s 66 of the PHW Act. Section 66 applies if a nuisance exists on or emanates from land the owner or occupier of which is unknown or cannot be found. It permits the council to abate the nuisance itself and recover the costs of doing so. This section may be put to one side for the purpose of this case.
Section 62(4)(b) empowers the council to issue an improvement notice or a prohibition notice. An ‘improvement notice’ requires the recipient to remedy ‘the matters or activities causing the contravention’ of the PHW Act and a ‘prohibition notice’ prohibits the recipient from carrying on the activity or carrying on of the activity in a specified way.[34] It is an offence for a person not to comply with an improvement notice or a prohibition notice.[35] Also, if the recipient does not comply with the notice or the council is of the opinion that the nuisance is likely to recur, the council may issue proceedings in the Magistrates’ Court for injunctive relief.[36] For present purposes, it is sufficient to note that the council under these processes may, if it chooses to do so, enforce an improvement or prohibition notice in the Magistrates’ Court.
[34]Ibid s 194.
[35]Ibid s 194(6).
[36]Ibid ss 196-197.
Section 62(4)(c) empowers the council to bring proceedings under s 219(2) of the PHW Act. Section 219(2)(a) of the PHW Act empowers the council to bring proceedings for an offence against Part 6 of the PHW Act. It is an offence under Part 6 of the PHW Act for a person to cause a nuisance.[37] Section 219(2)(b) of the PHW Act empowers the council to bring proceedings for an offence relating to an improvement notice or a prohibition notice. Accordingly, s 62(4)(c) empowers the council to commence proceedings that could lead, if proved, to penalties on the emitters of a nuisance.
[37]Ibid s 60.
D.2.2 - What is a ‘right’ of a person?
The plaintiffs contend that they are the victims of a nuisance. They are able to commence proceedings at common law for damages or for an injunction to have that nuisance abated. They have, instead, complained to the Council and caused the Council to perform its statutory obligation to investigate and to decide whether or not there is a nuisance. The plaintiffs’ common law rights to commence proceedings for damages or for an injunction have not been affected by the Council’s decision. This then raises the question as to what ‘right’ the plaintiffs have, or do not have, that is affected by the Council’s determination that the noise emitted by the wind was not a nuisance.
The definition, to repeat, is as follows:
decision means a decision operating in law to determine a question affecting the rights of any person ….;
It is clear that the definition may apply to a decision if it is a decision that, had it gone the other way, would have affected legal rights. A decision by a council to refuse a request by a property owner to change the property owner’s development conditions is a good example. The decision to refuse will leave the property owner in exactly the same position that they were in before the decision was made. It could be argued, then, that the council’s refusal has not affected the rights of the property owner. But if the request had been granted, then the property owner would have rights it didn’t previously have. The AL Act will apply to both decisions.[38] Accordingly, in order to determine whether a decision has affected a right, it is necessary to compare the rights of the relevant party before and after the decision, and to consider also the situation that would have arisen had the decision gone the other way. It is no answer to the plaintiffs’ case that the decision has meant that they are in the same position now that they were in before the decision was made if, had the decision gone the other way, the plaintiffs would have had rights that they would otherwise not have. If a person’s rights will differ depending on how a decision-maker answers a question under consideration, then the determination of that question affects that person’s rights for the purposes of the definition.
[38]See, eg, Kinchington Estate Pty Ltd v Wodonga City Council (2019) 59 VR 443, 455 [47(1)], 457 [56].
The word ‘right’ is not defined. One type of ‘right’ is a property right, that is, typically, a right to possess, alter, sell, lend, use or demise land or an object. The use of the word ‘right’ sits less easily when considering a victim of a tort. If a person crossing the road is hit by another driver who has not kept a proper lookout, the pedestrian has a claim in damages against the driver. It can be said that the pedestrian has a ‘right’ to damages or even a ‘right’ to sue or a ‘right of action’, but it is a somewhat strained use to say that a pedestrian has a ‘right’ to cross the road without being subjected to injury from negligent drivers. Nonetheless, if a decision maker made a decision that precluded the pedestrian from suing, or which overcame an obstacle to the pedestrian suing, no one would contend that it was not a decision that ‘affected’ that person’s ‘rights’.[39] Accordingly, in determining whether a decision affects a right, the word ‘right’ must include rights of action; if a decision (or, determination of a question) alters the causes of action that a person has, then it is a decision that ‘affects’ that person’s ‘rights’.
[39]See State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79 where Gobbo J at 82 explained that a decision to extend a time limit so as to enable a complaint to be lodged that would otherwise be barred affects the applicant’s rights and falls within the definition of ‘decision’. Also, the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 acknowledged at 580 that a report or recommendation that ‘operates as a precondition or as a bar to a course of action’ has legal effects and consequences and so may be quashed.
In circumstances such as this case, where the decision does not affect a proprietary right, impose a restriction on the performance of some activity or remove a restriction on the performing of some activity, it is necessary to consider whether the plaintiffs would have had a cause of action that could be characterised as a right if the Council had concluded that there was a nuisance. If so, then the decision that there was not a nuisance was a decision that affected the plaintiffs’ rights.
D.2.3 - What consequences would flow from a decision that there was a nuisance?
Section 62(3), set out in para 35 above, lists two things that, if a nuisance is found to exist, the Council ‘must’ do. Each of the two things is expressed in qualified terms. The first is that the Council take any action specified in subsection (4) that the Council ‘considers appropriate’. The second applies if the Council ‘is of the opinion that the matter is better settled privately’.
This part of the Act has been considered in Fertility Control Clinic v Melbourne City Council[40] and in Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council.[41] Neither of these cases determine the issue under consideration here. In Fertility Control Clinic v Melbourne City Council, McDonald J held that s 62(3)(b) of the PHW Act included some ‘mandatory’ elements, and that if a council found that a nuisance exists and formed the view that it was better settled privately (rather than by means of s 62(4)), then the council was obliged to advise the person notifying the council of any available methods for settling the matter privately.[42] His Honour concluded in that case that the complainant was not entitled to an order in the nature of mandamus to enforce that obligation, but this was because, in that case, the council had ‘directed itself to the question it was required to ask’, albeit that it made a non-reviewable error in answering that question.[43] Earlier in his reasons, his Honour expressed the view that there was ‘considerable force’ to the council’s submission that s 60 of the PHW Act did not create a duty enforceable by way of mandamus because the duty created was ‘too generic or vague’. However, this observation was, expressly, limited to s 60 and not to s 62 of the PHW Act.[44]
[40](2015) 47 VR 368.
[41][2020] VSC 512.
[42]Fertility Control Clinic v Melbourne City Council (2015) 47 VR 368, 380 [36].
[43]Ibid 381, [39].
[44]Ibid 374, [12].
In Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council, the South Gippsland Shire Council had decided that a nuisance existed, determined that it was better settled privately, and identified several methods available for doing so. The decision was in the form of a council resolution. Bald Hills Wind Farm Pty Ltd sought to have the council’s decision quashed. Richards J concluded that the decision was not amenable to certiorari ‘because it had no legal effect or consequences and there is nothing that can be quashed.’[45] As noted above, the requirement that a decision affect legal rights that was incorporated into the definition of ‘decision’ in s 2 of the AL Act was taken from the authorities that considered whether a decision had sufficient legal effect to permit certiorari. But her Honour did not conclude that the decision did not affect Bald Hills Wind Farm Pty Ltd’s rights. Although her Honour provisionally agreed with McDonald J’s doubts that the duty in s 60 of the AL Act was not enforceable by means of an order in the nature of mandamus,[46] her Honour concluded that no order in the nature of certiorari was available because the council had already performed its duty and the effect of its decision ‘was spent’.[47]
[45][2020] VSC 512 [4(2)].
[46]Ibid [57].
[47]Ibid [59], [61], [63]. See also Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25], cited by Richards J in Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council [2020] VSC 512, [41].
The plaintiffs submitted that if the Council found that a nuisance existed then the Council would be required by s 62(3) to select and to take the action specified in s 62(4) that it considered the most appropriate. I disagree. That is not what the subsection says. That interpretation might be open if the word ‘the’ were used rather than the word ‘any’ and the word ‘most’ were before the word ‘appropriate’. There is no basis in the text of s 62(3)(a) to impose an obligation on the Council to take an action specified in subsection (4) if it does not consider that action to be appropriate.
Rather, I interpret s 62(3) as requiring a council, if it finds a nuisance exists, to consider whether any of the actions in s 62(4) are appropriate or whether the matter is instead better settled privately. That is a binary choice: it is assumed that if (or because) none of the actions specified in s 62(4) is appropriate, then the matter is better settled privately. The word ‘better’ requires the council to compare the options identified in s 62(3)(a) with the option set out in s 62(3)(b) of PHW Act. If a council were to form the view that an action specified in s 62(4) is appropriate (rather than that the matter be settled privately), then the council would be obliged to take that action. If the council were to form the view that the matter is ‘better settled privately’, then it would be obliged to advise the person notifying of any available methods for doing so.
An interpretation that requires a council to consider whether an action in s 62(4) is appropriate and if so to take that action, or otherwise to advise as to private options, is consistent with the obligation on the Council imposed by s 60 of the PHW Act to remedy so far as is reasonably possible all nuisances in its district and the obligation imposed on it by s 62(2) to investigate any notice of a nuisance. It is also worth recalling that the provisions are only engaged if a nuisance is ‘dangerous to health or offensive’, and so an interpretation that requires a council either to take an action under s 62(4) or to inform the parties of any available method for settling the matter privately is sensible.
For present purposes, what is important is that if a council finds that a nuisance exists, then it is obliged to comply with the obligations in s 62(3) of the PHW Act. It is required to turn its mind to what should then be done. It is required either to abate the nuisance itself if the owner or occupier is unknown or cannot be found (s 62(4)(a)), or to issue an improvement notice or prohibition notice (s 62(4)(b)), or to bring proceedings under the PHW Act against the person responsible for the nuisance (s 62(4)(c)), or to advise the person complaining of any available methods for settling the matter privately (s 62(3)(b)). It is not permitted under the PHW Act to decide that there is a nuisance, but then do nothing more.
The Council, as I understood it, accepted that s 62(3) required it to turn its mind to the options contained in s 62(4) of the PHW Act, if a nuisance was found to exist, but allowed for the possibility that the Council might, after having done so, not take any of the identified steps. This could happen if, for example, the Council submitted, it thought that an improvement or prohibition notice was not warranted and also that it was not appropriate to provide the complainant with available methods for settling the matter privately. This might arise if the complainant was not itself a victim of the nuisance found to exist and so there was no real scope for a ‘private resolution’. This construction has some attraction and is supported perhaps by common sense, but sits uneasily with the use of the word ‘better’ in s 62(3)(b) which, as I have said, I read as indicating that the Council is required to make a comparison and adopt the preferable course. If the legislature had intended to permit a council not to take any action in response to a found nuisance, it could easily have listed doing nothing as an alternative. On balance, I prefer the view that the legislature (perhaps not anticipating the circumstance where the complainant is not a victim of or affected by the nuisance) has required, by the use of the word ‘must’, the Council to choose between the listed options.
D.2.4 - Did the decision affect the plaintiffs’ rights?
I accept that a decision by the Council that there was a nuisance would not have affected the plaintiffs’ substantive legal positions vis-à-vis Pacific Hydro, in that it would not affect the plaintiffs’ available causes of action against Pacific Hydro. But, as the analysis above shows, a decision by the Council that there was a nuisance would have created a situation where the Council was obliged to consider what further action to take directed at abating that nuisance or to give information in relation to settling the dispute privately. Further, the obligation on the Council to make that consideration was an obligation that could be enforced by the plaintiffs. If the Council found that there was a nuisance but refused to turn its mind to the further steps required by the legislation, then the plaintiffs could bring an action against the Council for an order in the nature of mandamus compelling the Council to turn its mind to what further steps should be taken.
The two circumstances to be compared in order to assess whether the determination affected the rights of the plaintiffs are therefore:
(a) First, where the decision is that there was not a nuisance. In that case, the plaintiffs would be in the same position that they were in before; and
(b) Second, where the decision is that there was a nuisance. In that case, the Council would be required to consider what next step to take and to take the step it thought appropriate. The plaintiffs could compel it to do so.
In the second circumstance, the plaintiffs would have a right that they would not have in the first circumstance. In this way, the determination as to whether or not there was a nuisance affected the plaintiffs’ rights. It is a natural use of language to say that the Council’s decision denied to the plaintiffs a right to have the Council consider, for example, whether to issue an improvement or abatement notice. The Council might choose not to abate the nuisance, but that does not mean that the decision that there was not a nuisance did not determine a question affecting the rights that the plaintiffs possessed. Although the matter does not directly arise, I consider, for the same reasons, that if the Council had decided that there was a nuisance, Pacific Hydro could have sought reasons for that decision.
For the above reasons, the decision that there was not a nuisance was a decision to which s 8 of the AL Act applied, and the Council is obliged to give reasons for that decision. I do not consider that the resolution included reasons in any real sense. In my view, the appropriate order is that the Council give reasons for its decision, rather than that it give further reasons.
In para 51 above, I considered the submission put by the Council that the legislation permitted a council not to take any of the identified actions even if the Council concluded that there was a nuisance. I note, for completeness, that if this were the correct interpretation, I consider that the finding of nuisance or not would still be a ‘decision’ for the purposes of the AL Act. This is because, even on that interpretation, the Council would still be obliged to consider whether and if so which of the available options was an appropriate step to take and, if it considered that there was an appropriate step to take, to take that step. If the Council did not turn its mind to those questions and do so in good faith, it would be in breach of the legal obligation imposed on it and the plaintiffs would be entitled to require the Council to engage in that process. Accordingly, even on this construction, the finding of nuisance or not would determine a question affecting the plaintiffs’ rights.
The Council also pointed out that the various steps referred to in s 62(4) of the PHW Act may not necessarily be final, in that the persons affected by those steps may be able to have them set aside. For example, the recipient of an improvement or prohibition notice is able to challenge those notices in the Magistrates’ Court.[48] That, however, does not mean that a council’s decision that there is or is not a nuisance is not a decision under the AL Act. As noted above, the key point is that a claimant’s rights are affected by the decision in the sense that if the decision is that there is a nuisance then the claimant has a right to require the council to take further steps or at least to consider whether to take such further steps. The fact that those steps if taken may not ultimately lead to an abatement of the nuisance is not to the point.
[48]Public Health and Wellbeing Act 2008 (Vic) s 208.
There may be some difficulty in a council giving reasons for its decision when a decision is reflected in a resolution that is passed by councillors at a meeting. The issue of ordering a council to provide reasons for a decision was considered by Biscoe J in Charlton v Moore (No 2).[49] His Honour did not consider that the potential difficulties were a reason not to make such an order. The Council did not contend that its existence as a council meant that reasons should or could not be ordered or that an order to furnish reasons would be against public policy.[50] I note that in Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council the council there gave reasons in the resolution that it passed, and then passed a further resolution containing further reasons including by referring to the advice and reports that it had obtained.[51]
E. Disposition
I will order that the Council provide reasons for its decision and otherwise dismiss the proceeding. I will hear the parties on the form of order and on the question of costs.
[49][2009] NSWLEC 47, [13], [19].
[50]Cf Administrative Law Act 1978 (Vic) s 8(5).
[51][2020] VSC 512 [20], [25].
SCHEDULE OF PARTIES
S ECI 2022 01830
| SONIA TRIST | First Plaintiff |
| CRISPIN TRIST | Second Plaintiff |
| MELISSA WARE | Third Plaintiff |
| JOANNE KERMOND | Fourth Plaintiff |
| BRIAN KERMOND | Fifth Plaintiff |
| JAMES KERMOND | Sixth Plaintiff |
| BRADLEY KERMOND | Seventh Plaintiff |
| - and - | |
| GLENELG SHIRE COUNCIL | First Defendant |
| PACIFIC HYDRO PORTLAND WIND FARM PTY LTD | Second Defendant |
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