Viva Energy Australia Pty Ltd v Glen Eira City Council
[2022] VSC 726
•28 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2021 02763
| VIVA ENERGY AUSTRALIA PTY LTD | Applicant |
| v | |
| GLEN EIRA CITY COUNCIL | First Respondent |
| And | |
| EARLY CHILDHOOD MANAGEMENT SERVICES | Second Respondent |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2022 |
DATE OF JUDGMENT: | 28 November 2022 |
CASE MAY BE CITED AS: | Viva Energy Australia Pty Ltd v Glen Eira City Council |
MEDIUM NEUTRAL CITATION: | [2022] VSC 726 |
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PLANNING – Conditions on permit to construct child care centre in close proximity to pipeline – Whether findings of Victorian Civil and Administrative Tribunal open on the evidence – Whether findings made in denial of procedural fairness – No evidence to support finding that changes to composition of wall sufficient to reduce harm – Not put to parties that it would be adequate to change composition of wall – Findings made in denial of procedural fairness – Leave to appeal granted – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N Wood SC | Davis Advisory |
| For the Second Respondent | Mr P Connor KC with Mr J Wright | Best Hooper Lawyers |
HIS HONOUR:
The applicant, Viva Energy Australia Pty Ltd (‘Viva’) operates an underground pipeline called the Western Port-Altona-Geelong Crude Oil Pipeline (‘WAG pipeline’) that transports crude oil from Western Port Bay to refineries at Altona and Geelong. A section of the WAG pipeline runs under a median strip in South Road, East Bentleigh.
A rupture of the WAG pipeline might result in a large fire that would have the potential to cause grave harm to persons, property and the environment in the vicinity of the fire. The regulatory framework that governs the operation of the WAG pipeline is principally found in the Pipelines Act 2005 (‘the Act’) and requires Viva to reduce to as low as reasonably practicable (‘ALARP’) any risks associated with its use.
The stretch of South Road under which the WAG pipeline travels is populated by buildings and property that are used for residential and commercial use including a number of medical clinics and the Moorabbin Bowling Club. South Road carries large numbers of cars and other vehicles each day.
The second respondent, Early Childhood Management Services (‘ECM’) proposes to establish a 122-place child care centre at 609–611 South Road, East Bentleigh. The site for the proposed child care centre is adjacent to, and located about 20 metres from, the WAG pipeline in the centre of the road reserve. In order for ECM to construct the child care centre it must first secure a planning permit. The application for the planning permit is governed by the Planning and Environment Act 1987 (‘PE Act’) and the Glen Eira Planning Scheme (‘Scheme’).
Viva opposed the grant of a permit to ECM on the basis that the proximity of the proposed child care centre to the WAG pipeline will result in an unacceptable risk of loss of human life because, in the unlikely event that there is an accidental rupture or puncture of the WAG pipeline, it could lead to a fire of such intensity as to impact on the child care centre. Notwithstanding Viva’s objection, the Glen Eira City Council (‘the Council’) granted a permit to use and develop the land for the child care centre. Viva appealed the grant of the permit to the Victorian Civil and Administrative Tribunal (‘the Tribunal’).
There was no doubt that ECM met the usual planning requirements. The proceeding in the Tribunal focused on two critical questions:
(a) Is the risk of loss of human life from accidental damage to the WAG pipeline a matter that should be addressed in the planning permit assessment?
(b) If so, is the risk so unacceptable that the proposed centre should be refused or otherwise amended to reduce the risk to an acceptable level?
The Tribunal found that the risk to life from damage to the WAG pipeline was a relevant matter in assessing whether the permit should be granted. That conclusion is not challenged in this Court and, for present purposes, may be accepted.
The Tribunal decided that the permit should be granted and directed a permit to be issued for the land in accordance with the endorsed plans and the conditions set out in Appendix A to the reasons of the Tribunal. The conditions included the following:
1.Before the commencement of the development, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must generally accord with the plans submitted with the application (identified as TP06-TP13, rev B, dated 10 February 2020, by Perkins Architecture) but modified to show:
(a) Materials and finishes to the ground floor boundary fences and the balustrade/screen to the first floor play areas, facing South Road and Valerie Street, that are resistant to radiant energy of up to 4.7kW/m2 for at least two minutes.
(b) Amended access to the first-floor lobby area so that there is internal access to the stairwell from the northern teaching rooms to aid unexposed egress from the first floor to the emergency assembly point in the basement of the building.
(c) Notation on the plans that the basement is designated as the evacuation assembly point in any emergency response plan for the centre.
(d) …
The reasons of the Tribunal
The Tribunal gave written reasons for its decision.
The Tribunal noted that the proposal met general planning requirements and that there was no need to examine any of the ‘usual planning issues’.[1]
[1]Viva Energy Australia Pty Ltd v Glen Eira CC (Corrected) [2021] VCAT 701, [7] (‘Reasons’).
The Tribunal recorded that the proposed child care centre comprises a two-storey building built over a basement car park. The proposal includes outdoor play areas on the ground floor and the first floor, close to and facing toward South Road. The Tribunal noted that these areas are of particular concern to Viva, as children and staff would be directly exposed to radiant energy if a fire were to occur along the section of pipeline in the vicinity of the review site. Under the proposed plans, the play areas are bounded by two metre high boundary fences to South Road and Valerie Street, constructed of a mix of brick and glass. The first floor play area is also enclosed by a two metre screen comprising a mix of glass or glass with aluminium battens.
The Tribunal then set out its understanding of the relevant risk associated with the WAG pipeline. The relevant risk is the rupture of the WAG pipeline, the escape of crude oil which pools and ignites causing a ‘pool fire’. The relevant metric that measures the likely area that would be affected by such a fire is the radiation intensity of the fire. At a radiation intensity of 4.7kW/m2 serious injury can be caused to an adult after 30 seconds’ exposure.
The Tribunal accepted that, assuming a 25mm to 100mm diameter penetration of the WAG pipeline, radiant energy levels of 4.7kW/m2 would be experienced over a distance of 50 to 75 metres from the pipeline. The same ruptures would result in energy levels of 12.6kW/m2 over a distance of 22 to 24 metres from the rupture. At that higher intensity level, there is a significant chance of fatality from ‘extended exposure’.[2]
[2]Ibid [19].
As already noted, the proposed child care centre is approximately 20 metres from the WAG pipeline.
The Tribunal noted that the proposed child care centre does not affect the probability that a rupture or fire would occur. Rather, the presence of children at the centre increased the gravity of the potential consequences because it would be more likely that there will be children in the vicinity in the event of a rupture and a child is less able to respond to an event by evacuation than an adult.[3]
[3]Ibid [21].
The following salient features of the regulatory regime that apply to the WAG pipeline under the Act were recorded by the Tribunal:
(a) the objectives of the Act include protecting the public from environmental, health and safety risks resulting from the construction and operation of pipelines;[4]
[4]The Act, s 3(e).
(b) division 3 of part 8 makes it an offence for unauthorised excavations or boring within three metres of a pipeline or otherwise knowingly, recklessly or negligently interfering with a pipeline;
(c) section 124 of the Act imposes a duty on a licensee to manage its pipeline operations ‘to minimise as far as is reasonably practicable’ hazards and risks to the public as might arise from that pipeline’s operations. Section 125 of the Act sets out what matters may be taken into account in determining ‘what is reasonably practicable’;
(d) division 2 of part 9 requires the licensee to prepare and implement a Safety Management Plan (‘SMP’), which must identify public safety risks from the pipeline operation, specify what the licensee will do to eliminate or minimise those risks and set out any other matters prescribed under the Pipelines Regulations 2017 (‘the Regulations’); and
(e) Regulation 33 of the Regulations requires that the SMP:
(i) identify all of the hazards and risks arising from the pipeline operation that have the potential to cause a reportable or nonreportable safety incident; and
(ii) contain a detailed assessment of those risks; and
(iii) describe the systems, practices and procedures undertaken, or proposed to be undertaken, to eliminate or minimise those risks as far as reasonably practicable.
Section 109 of the Act requires Viva to operate the WAG pipeline in accordance with the prescribed standards, specifications and conditions. They include prescribed standard AS 2885.3-2012 which requires a determination of whether the identified risks can be reduced to ALARP.
The Tribunal noted that AS 2885 required a periodic review of safety by the completion of a Safety Management Study (‘SMS’) which had, as a component, identifying:
… any changes or additions to the SMS that result from changes including changed land use, changed operating conditions, encroachments, new integrity data or anything else that might change the threats to the pipeline or the consequences of pipeline failure events.[5]
[5]Reasons, [54].
As part of the review before the Tribunal the parties had agreed to undertake an SMS (part of the process of which includes the licensee conducting a workshop), and conducted an ALARP workshop. The evidence of the SMS and ALARP workshops was central to the review. It will be necessary to return to the evidence of the SMS and ALARP workshops and the expert evidence arising from them later in these reasons.
In summary, the Tribunal concluded:
It can be seen that the legislative and regulatory framework set out under the [Act] together with AS2885.6, places obligations on the pipeline licensee to manage the safe operation of pipelines. A response to changes in land use that affect the threat regime, the consequence of pipeline failure and/or otherwise the risk level is intended to follow an established and regulatory required framework. There is an onus on the pipeline licensee to follow or apply that framework.[6]
[6]Ibid [62].
Having set out the above context, the Tribunal then proceeded to its assessment of the evidence.
In this part of its reasons, the Tribunal started by addressing the interaction between planning controls and the operation of the WAG pipeline, noting that although there were no specific controls that applied, safety risk remained a relevant consideration. It said:
Given this policy setting and the broader requirements of clause 65 [of the Scheme], that in turn require consideration of the objectives of the PE Act, we conclude that safety risk is relevant to our consideration. Further, in reflecting of Tribunal’s position about risk in Wilcon,[[7]] it follows from these policy considerations that:
• It is not necessary to demonstrate that there is no risk, before a planning proposal can be approved.
• What must be demonstrated is that the risk is acceptable.
• What is an acceptable risk depends on the nature of the proposal.
However, having regard to our earlier conclusions about the operation of the Pipeline Act and the obligations of Viva to ensure public safety, we consider that any response through the planning framework should properly be on the basis that Viva has addressed matters of public safety to the full extent that it is required to under the Pipeline Act, that is to ALARP. Any subsequential action required under the planning decision making framework would then be appropriate and proportionate to the level of residual risk after Viva achieves ALARP.[8]
[7]Wilcon Projects Pty Ltd v Hobsons Bay CC [2016] VCAT 1929.
[8]Reasons, [94]–[95].
The Tribunal’s findings in relation to the SMS and ALARP workshops
As noted, during the course of the review in the Tribunal, SMS and ALARP workshops were conducted in accordance with the procedures set out under pt 6 of AS 2885 resulting in a number of reports.
The Tribunal discussed the reports that emanated from these workshops in some detail. By way of overarching observation, the Tribunal observed that the purpose of the SMS and ALARP processes was to address what Viva was required to do in order to manage risks associated with the WAG pipeline.
The SMS Report, prepared following a workshop conducted over two sessions, identified a number of discussion points relevant to the ECM Development. These included:
4.1 ECM Development
a. …..
c.Building facade not specifically designed for fire-ratings but have complied with government directives for non-combustible material. Also glass meets structural grades.
d.Unknown degree of radiation mitigation from fence / façade but would most likely require a structure in order of 3-4m.
Under the heading ‘SMS Results’, the following appears:
The key objectives from the SMS workshop was to satisfy the requirements of AS2885.6 Clauses 5.5.2 & 5.5.3 which effectively determines what actions would have to be undertaken and what controls would be necessary in order for the pipeline safety to meet AS2885 requirements for the proposed development to be implemented adjacent to the adjacent existing pipeline.
The following action items therefore summarise these requirements.
1. ECM are recommended to evaluate Building facade radiation protection. Eg Laminated products may help with radiation protection. Noting, this is not specific AS2885 jurisdiction and may come from VCAT direction / Council Town Planning Permit approval requirements. ECM could consider'
a. fence design to improve radiation protection in play areas
b. internal access improvements to mitigate need to egress the building via outdoor play areas
c. ECM's ERM plan to consider ability to allow direct access from all first floor playrooms to the foyer and evacuation stair well
In relation to this action item, the Tribunal noted that the proposed outcome was not ‘within the jurisdiction of AS 2885.6’ but was a planning matter because the focus of AS 2885 was on Viva’s management of the risks rather than on what third parties might do to accommodate any risk arising from the operation of the WAG pipeline.[9]
[9]Ibid [99].
Following the completion of the SMS report, an ALARP workshop was conducted which resulted in a revised report dated 9 February 2021 (‘ALARP Report’). The Tribunal noted that the ALARP Report discounted a rupture of the WAG pipeline as a credible failure mechanism, but identified external interference or penetration scenarios as being credible failure mechanisms. These threats included:
(a) Works associated with the nearby footbridge would likely involve excavation within the WAG pipeline exclusion zone and so fall within the management of an SMS encroachment review.
(b) Horizontal directional drilling (‘HDD’) and vertical auger operations may be credible sources of interference, though it is noted that large HDD operations for sewers or other large diameter drilling can be expected to have ‘robust’ controls in place to avoid interference. Smaller HDD operations have a lower potential for ‘critical defect length’ impacts that would lead to a pipeline failure.
(c) Excavator impacts could be a source of credible interference impacts, with operations of 15 to 30 tonne excavators with varying teeth types.[10]
[10]Ibid [117].
As to these eventualities, the Tribunal said that the ALARP workshop report clearly identifies that the potential for an external threat event is limited to very specific works, such HDD and excavator operations, with large HDD operations being discounted because they are highly controlled, and smaller bore HDD operations have less likelihood of causing a release of petroleum products from the WAG pipeline.
The Tribunal referred to s 6 of the ALARP Report which set out the consequences of a release in some detail. Section 10 of the ALARP Report identified two additional measures that could be undertaken by Viva: replacing the WAG pipeline with a heavier gauge pipeline and slabbing over the top or top and sides of the WAG pipeline.
After noting that slabbing for 50 metres to 75 metres either side of the child care centre ‘may be justified’, the ALARP Report stated that pipeline protection using concrete slabs was standard industry practice. On the treatment of slabbing in the ALARP Report, the Tribunal said:
Slabbing for 50 metres is noted as protection against 25mm hole penetrations and reducing the release risk exposure by 90%. This is due to the significant reduction of all but a small area ground level area from exposure to radiant heat levels of more than 4.7 kW/m2. The addition of side slabs for this distance is also justified when measured against the cost-to-risk reduction benefit calculation.
Slabbing for 75 metres either side of the development protects against 100mm hole penetrations, though the risk reduction factor is not provided. The ALARP Workshop report indicates, however, that for such a release event, a 50 sqm area of the first level play area may be exposed to radiant heat above 4.7kW/m2 and potentially areas of between 120 sqm and 220 sqm at ground level.[11]
[11]Ibid [128]–[129].
The Tribunal concluded that slabbing was justified, and repeated statements in the ALARP Report that slabbing was standard practice and provided effective protection against excavator strike. The Tribunal concluded:
Given such an analysis, we are of the view that slabbing, whether by concrete (or high-density polyethylene … as identified in the ALARP analysis at Appendix A) is an additional step that is justified to reduce risks to ALARP. In practical terms it would eliminate the risks posed from unauthorised works within the median strip, one of two credible hypothetical threats outlined in this assessment. The other threat, being a strike from HDD operations, is as we have noted earlier, ranked as having a lower credibility. The ALARP workshop indicates that the greater HDD risk would arise from large HDD operations, but that such operations would be under greater control. This would be consistent with such works occurring along or under a major arterial road.[12]
[12]Ibid [134].
Under the heading ‘Findings’ the Tribunal said that the Act required Viva to operate the WAG pipeline in a way that reduced the risks to ALARP. Necessarily, the Tribunal reasoned, that process accommodated the possibility of some residual risk and that land use planning should have regard to and address this residual risk. The Tribunal accepted that the SMS and ALARP processes had identified that all operational risks under the direct control of Viva are low and do not present an unacceptable risk to the ECM child care centre.[13]
[13]Ibid [149].
The Tribunal noted that the proposed land use was similar to other land use activities adjacent to the WAG pipeline and that it did not require Viva to respond to a new or changed land use. In that respect, the Tribunal had earlier noted that there was a child care centre two kilometres to the east along South Road, and another two kilometres to the west and a school located four kilometres to the west. In doing so, the Tribunal did not accept criticisms of the ALARP process made by Jennifer Polich, an expert called on behalf of Viva, who gave evidence that the SMS and ALARP Report were inadequate.
The Tribunal proceeded on the basis that Viva is required to address the risk so that it is ALARP. The Tribunal considered that could be achieved by slabbing over the WAG pipeline within 75 metres of the child care centre and signage that met AS 2885. Based on that premise the Tribunal concluded:
This leads us to form a view that the proposal does not result in a risk that cannot be managed through the already existing obligations for managing the pipeline by Viva under the regulatory framework established by the Pipeline Act. For the same reasons we find the proposed child care centre does not result in the encroachment of a use that would unreasonably compromise the ability of the pipeline to function safely and effectively, as directed by policy at clause 13.07 of the planning scheme.
We think it prudent nevertheless that the design of the child care centre respond to the residual risk, i.e. unauthorised external interference beyond what would be the slabbed sections of the WAG pipeline.[14]
[14]Ibid [153]–[154].
The Tribunal accepted that the design of the child care centre should address this residual risk. In quantifying the risk that would exist after the slabbing was installed, the Tribunal noted that a 25mm rupture of the pipe would not result in any outside areas being exposed to a radiant heat of more than 4.7kW/m2. The Tribunal accepted that for a 100mm release event, a 50sqm area of the first level play area may be exposed to radiant heat above 4.7kW/m2 and potentially areas of between 120sqm and 220sqm at ground level.[15] It was this risk that called for some planning response.
[15]Ibid [155].
The Tribunal concluded:
The SMS workshop identified possible responses to encompass:
·reconfiguration of the centre so that internal accessways from each separate play area and room can facilitate internal evacuation pathways rather than the current plans that require passage via outdoor areas;
·internal access to the basement, an acknowledged safety evacuation area; and
·modifications to the boundary fences to improve resistance to heat radiation or protection of outdoor areas from same.
Mr Cann’s oral evidence confirms that exposure to radiant heat levels could be reduced by a redesign of the boundary fences and the first floor play area balustrade/screen. Though given in the context of this being an alternative option to slabbing, it nevertheless holds true for the more limited extent of potential exposure after slabbing.
However, we do not consider that the reduced areas of exposure require a major redesign of the boundary fences and first floor balustrade/screen. Rather, what is required is ensuring the materials, such as the mix of brick and glass along the South Road and Valerie Street boundaries, are sufficiently resistant to the radiant heat level loads to provide time for evacuation of children or staff who may be in these open areas. Based on our earlier findings, we find it prudent to assume evacuation may take up to two minutes. The fences and balustrade/screen should therefore have a capacity to resist radiant heat of up to 4.7kW/m2 for at least two minutes. We note that the boundary wall to South Road is already proposed to use a mix of brick and glass. These materials should be confirmed and specified on the plans as being of a type that are rated to be heat resistant or retardant to the necessary level. The response may also require some extension of the use of brick facework and glass instead of timber around the first floor balustrade/screen. We consider such a change in materials to be a minor modification that can be made by secondary consent under the permit conditions.[16]
[16]Ibid [157]–[159].
In the result, the Tribunal amended condition 1(a) to require materials and finishes to the ground floor boundary fences and the balustrade/screen to the first floor play areas, facing South Road and Valerie Street, that are resistant to radiant energy of up to 4.7kW/m2 for at least two minutes.
The hearing in the Tribunal
In order to address the grounds, it is necessary to refer to the evidence in some detail.
Evidence and submissions filed before the Tribunal hearing
The main evidence addressing the risks to occupants of the child care centre comprised the written reports emanating from the SMS and ALARP workshops and expert evidence adduced by the parties. ECM adduced evidence from Nigel Cann, a chemical engineer who had participated in the ALARP workshops, and Viva relied on the evidence of Ms Polich, a chemical engineer.
I have already set out the relevant passages in the SMS Report above at [25] and [26].
Under the heading ‘SMS Discussion Points’ the following was noted:
Unknown degree of radiation mitigation from fence / façade but would most likely require a structure in order of 3-4m.
The SMS report recommended that ECM ‘evaluate Building facade radiation protection’ and that ECM ‘could consider … fence design to improve radiation protection in play areas’.
Following completion of the SMS, both Viva and EMC provided their respective responses to the SMS process. On 18 December 2020, Viva said:
In determining whether the proposal is to proceed, Viva Energy strongly encourages and implores the Tribunal, Council and the developer (and future site occupants) to consider the ongoing safety of users of the site, and build in appropriate controls and protection measures as discussed in the SMS Workshop, including:
(a) Siting of outdoor play areas as far from the WAG pipeline as possible.
(b)Redesign of the South Road boundary wall to create resistance to thermal radiation.
(c)Appropriate emergency response procedures, in particular ones that avoid outdoor evacuation routes at the front and side of the site (particularly upstairs).
(d)Awareness program with parents such that the risk profile is considered.
(e)Other measures as may be necessary to protect the children at the child care centre.
In summary, having regard to the above matters and the outcome of the SMS Workshop, Viva Energy encourages both the Respondent and the Council to reconsider the appropriate use of the site ahead of an ALARP Assessment taking place.
On the same day, EMC’s lawyers advised the Tribunal that ECM would undertake the risk reduction measures listed in item 5.1 of the SMS namely:
· fence design to improve radiation protection in play areas
· internal access improvements to allow direct access from all first floor playrooms to the foyer and evacuation stair well.
The ALARP Report was prepared in February 2020. It did not address the issue of the design of the fence to the child care centre. As the Tribunal found this was because the focus of the ALARP process was on the steps that Viva could take to reduce the risk to ALARP. It was not concerned with what steps, if any might be taken by other parties to address any residual risk after Viva had met its obligations.
In his written report dated 1 March 2020, Mr Cann said that if a permit is issued to develop the site it should be subject to a condition requiring ECM to make the following changes:
(a) Modify the fence design to improve radiation protection for both the ground- and first-floor play areas;
(b) To change the access to the first-floor lobby area so that there is internal access to the stairwell from the northern teaching rooms to aid unexposed egress from the first floor to the emergency assembly point in the basement of the building.
Mr Cann considered that the cost/benefit of installing a slab over the WAG pipeline had been overstated in the ALARP Report but that the installation of the slab over the WAG pipeline would be suitable additional protection of the pipeline to mitigate risk to caregivers, children and other people who may be at the site for less periods of time such that the additional risk faced by these people can be considered broadly acceptable.
For the purposes of preparing her written expert report, Ms Polich was asked to assess the adequacy of the SMS Report and ALARP Report in addressing the risk associated with the proposed child care centre. In her report of 9 March 2021, Ms Polich concluded that the reports do not explicitly assess the change in sensitivity of the potential occupants on the development site and reassess the acceptability of that risk; or demonstrate that the risk associated with the proposed land use change in the vicinity of the WAG pipeline has been reduced ALARP as required under AS 2885.6. In her opinion, a Qualitative Risk Assessment was the only means of explicitly assessing the risk acceptability of the proposed change in land use. Ms Polich did not address the design of the child care centre in her written report. The focus of her report was on the adequacy of the risk assessment that had been undertaken through the SMS and ALARP workshops.
In its written submissions to the Tribunal dated 15 March 2021, ECM referred to its undertaking to pay for the concrete slabbing over the WAG pipeline for a distance of 50 metres either side of the proposed development. It also noted the recommendation contained in the ALARP Report that ECM consider the design of the fence to improve radiation protection in the play area. ECM submitted that the Tribunal should issue the permit subject to a condition reflecting ECM’s offer to pay for the slabbing and consider the fence design. It submitted that these matters, which included an amendment to the proposal in relation to the modification of the fence, would reduce any risk to an acceptable level.
In its written submission to the Tribunal dated 15 March 2021, Viva referred to the observation in the SMS Report that a structure in the order of 3–4 metres may be required and that this would appear to require a substantial structure although its efficacy had not been demonstrated.
Oral Evidence in the Tribunal on 18–19 March 2021
In her oral evidence, Ms Polich noted that the references in the SMS Report to changes in the fence design had not been carried into the ALARP Report.[17] Asked to comment on the adequacy of the potential mitigation measures mentioned by Mr Cann in his report she said that she considered that a barrier between the ‘source of the risk and the receptors’ was a reasonable suggestion. She continued:
It would need to be a fairly substantial either very high barrier, you know, with some kind of fire rating or it would need to have – be a barrier with some kind of roof that was also fire rated or protection, you know, from heat radiation. Because a – a fire – like, the sort of event you’re talking about is quite a – it’s a very large kind of pool fire with quite a substantial flame height and so, you know, fence probably doesn’t quite capture what that is. It’s a much more substantial construction than that to provide – to actually show that you’ve protected people from any kind of heat event or given them more time to actually remove themselves from the affected area. So to my mind that’s – you know, that’s a reasonable suggestion to make. It doesn’t seem to have been costed. It doesn’t seem to have been – how you would need to design it to actually achieve any risk – effective risk reduction hasn’t been suggested but you know, it’s a reasonable suggestion but it needs some kind of performance standard or functional outcome defined.[18]
[17]Transcript of Proceedings (18 March 2021) 66.45–67.5.
[18]Ibid 75.20–31.
In answer to a question from a member of the Tribunal, Ms Polich explained that because a pool fire is quite high, the barrier would require some ‘kind of shelter or shielding … above head height’ which would be a reasonable measure provided it had some design basis that ensures it can protect against heat radiation.[19]
[19]Ibid 105.35.
In Mr Cann’s oral evidence he said that he had discussed with EMC what steps might be taken by EMC to manage the risk for occupants. He explained:
And so under those discussions, it was – we had come to the conclusion that there would need to be some form of barrier put up between the fire and the building, given that, you know, under most planning requirements, buildings need to be offset from the boundaries. And so the description that was described as being a fence line by Ms Polich was there in relation to, ‘That’s the boundary,’ as opposed to trying to say it was going to be a fence that was all going to be required to produce the heat protection from the radiation. And until we had actually done some studies, it was difficult to define what it was that would be the specifications for that, although in hindsight it would have been possible to say that we wanted – in standards within fire ratings, we could have talked about a one-hour, a two-hour or a four-hour fire rated wall as being something that would offer suitable protection. Any of those probably would be acceptable, although you would probably tend to be going for a two or four-hour fire rated wall structure.[20]
[20]Transcript of Proceedings (19 March 2021) 133.17–29.
Mr Cann explained that this matter had been raised at the SMS workshop but it was decided that the SMS and ALARP processes were about the obligations on Viva as the WAG pipeline operator to address risks arising from the use of the pipeline. It was for this reason that the issue of a barrier or fence being erected by EMC was identified as a matter that EMC might consider rather than as an outcome of the SMS process.[21]
[21]Ibid 133.44–134.3.
In his evidence Mr Cann was asked about the height of the proposed fence and whether it needed to be increased to three to four metres in height. He said the ‘totality of it’ needs to be considered and that the first two metres would have to be heat rated and that there need to be protection further up, for the first floor.[22] He continued:
The actual height for the heat protection, probably, yes, would need to be in that order of three to four metres. Exactly how that – how that finally gets resolved from a design viewpoint, and what’s fence and what’s building, you know, does need to take in consideration what the building form is going to look like from the council’s perspective, you know. Although that’s not my area of expertise, I do know that how the building actually looks is an important feature of what actually gets approved in planning, and I guess that’s a part of why this has not been well defined, because I think there’s a lot of iterations it might have to go through between defining an appropriate fire protection barrier and coming up with something that’s an acceptable form to the built form.
And it may actually be that you have a two-metre wall, plus we have some form of hidden view sealing that’s heat protection that goes up to the building, which would actually provide an extra barrier, as was suggested by Ms Polich in her testimony yesterday. And then with the building on that southern side being fire rated as well, you would effectively create that protection. So I think there has just got to be an interaction between the wall that will be put on the fence line and the building, and I guess you’ve just got to make sure there’s that demarcation between what’s considered building and what’s considered fence within the – within the planning requirements.[23]
[22]Ibid 138.42.
[23]Ibid 139.7–26.
In cross examination, Mr Cann maintained that evidence. He said:
There is a need to offer some protection up to at least four metres of height based on other studies that I’ve done where we’ve actually looked at what the fire is and what’s going on. I guess there is a number of ways of which you can provide that protection through a series of vertical and horizontal solutions to solve that problem.[24]
[24]Ibid 141.41–45.
Mr Cann accepted that there would be significant radiation from a pool fire:
So I expect that we need to create, certainly, protection up on the first floor for people playing in that area. And that would need to be two to three metres high and be a physical barrier. So something like a brick wall or a masonry wall or some other non-combustible material that gives complete shadowing effect.
On the first – on the ground floor level, you would have to do the same sort of thing that would come probably up to the same level as the first floor, because you would need to create the same sort of effect. And you would actually get better protection if you actually covered in that area as well with non-combustible material over the top of the play area. And that would give significant protection to anybody that was in that play area. The issue with that is it probably makes it an internal play area, not an external play area. I guess the other thing to consider and why the wording is a little big vague is the fact that we need to consider what the – I guess the visual appearance requirements are for the council. You know, I wasn’t specifically aware about – I’m only looking at it from the heat protection effects for people.[25]
[25]Ibid 169.33–170.2.
Although he was initially of the view that slabbing would probably not be required, Mr Cann ultimately expressed the view that slabbing was necessary to reduce the risk to an acceptable level and that this would probably be 90% effective but that would leave a residual risk which would be addressed by ‘a wall’. He said ‘the barrier system, if I can out it that way – the combination of a wall and some redesign, perhaps of the interface of this facility to South Road’ could deal with ‘external interference residual risk’.[26]
[26]Ibid 167.35–41.
In respect of the fire rating of the proposed wall, Mr Cann said that in protecting against radiation, ‘any fire rated wall, even the minimum fire rated wall of 60 minutes, offers you more than substantial protection, and therefore the exposure – people are not going to be exposed to any of this.’[27]
[27]Ibid 151.6–8.
In her oral submissions before the Tribunal, counsel for Viva submitted that the offer made by EMC in relation to the fence was inadequate in detail and that a substantial structure was required but no detail of it or its efficacy had been provided.[28] Viva said that the permit should be refused.
[28]Ibid 117.42–118.3
Faced with Viva’s submission that there was no detail in relation to the proposed barrier, the solicitor for EMC submitted to the Tribunal that if the Tribunal needed more information about ‘the treatment to the front fence at both the ground floor and first floor level’ it would be appropriate for the Tribunal to issue an interim decision to allow ECM the opportunity to put in a set of plans addressing the design of the fence.[29] It was submitted that this would give both Viva and the Council an opportunity to be heard on the design and for the Council to assess whether the final design or composition of the fence would cause any character or streetscape issues.
[29]Ibid 174.38–43.
The Tribunal returned to this topic near the end of the hearing in the following exchange:
MEMBER GLYNN: No. I’m – no. I don’t think so. Actually, no, I might. Well, the only question I have – which really almost goes back to conditions – is I’m still – I think – well, you made the comment that if we wanted to see what the fence might look like then an interim decision would be appropriate and I’m not saying we’ve formed any view on anything yet, but if – if it could be done by condition what sort of condition would you be looking at in terms of those mitigation elements? Because I’m – I’m certainly not still clear as to what the works are that would be required in terms of – like, there’s still this discussion of a three to four metre fence/wall that’s a – a barrier, and I think Mr Cann’s evidence was – am I moving to conditions?
MEMBER POTTS: No, no, no. I just – I was going to perhaps intervene. Was it the position that you’re putting, Mr Cicero, that rather than trying to condition it this is a – a situation for an interim decision to actually see what would be designed?
SOLICITOR FOR EMC: Yes. I think so. I think that it’s – it’s – to be fair to – to all parties in – and – and particularly to the council, that I’m sure that they’d want to see whether – the – the design of it before they were able to say yea or nay. And I think this is a case that’s appropriate for a – an interim decision if the tribunal was – in relation to the substantive matter – with – with our – with us. I mean, I – I could certainly seek to draft a condition which would pick up the – the matters that were referred to by Mr Cann, but I – I think, in fairness to all, it would be more appropriate if – if -- -
MEMBER GLYNN: If – if - - -
MR CICERO: - - - recommendations were documented.[30]
[30]Ibid 176.43–177.20.
The representative for the Council made the following submission:
[COUNCIL REPRESENTATIVE]: Thank – thank you, Mr Chairman. Oh, look, we don’t have much to add. It’s more just to follow on from the – the last discussion about the – whether it’s appropriate or not to try and incorporate some of Mr Cann’s – sorry – Mr Cann’s recommendations through permit conditions. And – and we tend to agree, I think, with what’s been discussed is that perhaps it’s not appropriate to do those as permit conditions. We don’t see how you could come up with wording that would be succinctly put forward. There’s no consensus as to what the final design of, say, for example, the fence needs to be. Are we talking three or four metres? We’re talking maybe a canopy over it.
We’re not sure on materials and all these sorts of things. So if – if the tribunal is of the mind to – to go down the path and consider that it’s warranted to have such provisions in place then we would be open to an interim decision as well, As suggested by Mr Cicero. We think there would be some benefit to that.[31]
[31]Ibid 178.8–26.
The Tribunal then said:
All right. Thank you, everybody. Just we have no other questions or clarifications from any of the parties. We’ve heard all the submissions and you’ve responded to what we’ve put to you a 5 nd we ascertained from what’s been said that at the normal stage now and – and in this type of hearing would be to go to conditions, but I make the observation that there seems to be agreement that trying to draft conditions to deal with the recommendations of Mr Cann would be – apart from the slab matter which Mr Cicero has put forward, that it would be a complex and perhaps ultimately overwhelming exercise to put forward conditions for – to address the other recommendations to deal with the interface along South Road.[32]
[32]Ibid 181.3–11.
There was then some further discussion about what might be left open should an interim decision issue, including whether any redesign should go back through the ALARP process. EMC said that this was not necessary. Viva said it was difficult to speculate on what might be required as any change to the design ‘are very significant changes’ and it was unclear whether the changes would be able to achieve ALARP.[33] After some further discussion, the Presiding Member said:
This causes me just to just pause and give thought to the – what’s been put to us is the option. I mean, obviously our decision could be just “no”, as – as has been – as Viva has put it. It’s a no, go back to – to square one or thereabouts with a fresh application, or, as has been put by you, Mr Cicero, well, there’s merit in the land use at this location but you need to – some further design work needs to be done and it’s an interim, so rather than a discussion about conditions if we were to think that an interim – and underline “if”. If an interim was appropriate, the form of order that might seek to address these issues, I take it from what you’re saying, Mr Cicero, was ECM would resist or – or would say that as part of that interim decision a further ALARP would be unnecessary, that really it’s just about the – the design response to the present ALARP and – and Mr Cann’s recommendations.[34]
[33]Ibid 179.33–36.
[34]Ibid 182.13–23.
ECM submitted that the ALARP prices had been robust enough so that any change would not need to go through that process again. Viva submitted that based on the evidence of Mr Cann further work would be required on any design change and the Council submitted that any change might give rise to planning issues of an urban design type or character.
The grounds of appeal
Viva seeks leave to appeal the orders made by the Tribunal.
Shorn of presently irrelevant verbiage, the proposed grounds of appeal that were pressed were as follows:
7.Further, or alternatively, the Tribunal made a finding for which there was no evidence, namely, that the risk of death could be adequately mitigated through changes to the materiality of the boundary fences and balustrades
PARTICULARS
a. A decision-maker will commit jurisdictional error if it makes a finding for which there is no evidence.
b.The Tribunal found any risk to human health could be adequately managed by changing the materials used in the boundary fence and balustrades.
c. The oral evidence of Mr Cann for the Second Respondent was that, in the absence of slabbing on top of the pipeline, the risk of death could be managed if:
i. the balustrades at the first floor were made of brick or masonry or other noncombustible material and were two – three metres high in order to create a shadowing effect; and
ii. a similar treatment was applied to the ground floor.
d. Mr Cann also gave evidence that:
i. Improved protection would be provided by enclosing the ground floor play area;
ii. There was a need to provide protection ‘up to at least four metres of height’; and
iii. The design of an appropriate solution was not ‘a simple straightforward exercise’ and that the Second Respondent had not yet undertaken it because it would cost money.
e. Mr Cann did not give evidence, and was not asked, whether if slabbing was introduced, a lesser design response would be adequate.
f. The error was material in that if more significant changes were required to the design of the child care centre than those proposed by the Tribunal then the Tribunal would have had to identify what was required and determine whether the proposed changed design was acceptable in planning terms.
8.Further, or alternatively, the Tribunal acted irrationally in reaching a conclusion for which there was no evident and intelligible justification.
PARTICULARS
a. A decision-maker will commit jurisdictional error if it they make a decision which lacks an evident and intelligible justification.
b. As set out above, the Tribunal’s determination that the risk of death could be reduced to an acceptable level relied on two findings:
i. …; and
ii. On that assumption, it would only be necessary to change the materiality of the boundary fences and balustrades.
c. Neither of the expert safety witnesses gave evidence in support of either of these specific propositions.
d. Following the evidence of Mr Cann, both the Respondents submitted that it was appropriate for the Tribunal to make an interim decision in order to allow the child care centre to be redesigned and further evaluated in light of the evidence of Mr Cann.
e. The Tribunal’s reasons do not provide an intelligible basis for determining how it concluded that the assumption it made was a safe assumption to make in all the circumstances in that it does not identify any evidence or other material to support the making of this assumption.
f. The Tribunal’s reasons do not provide an intelligible justification for concluding that, if the pipeline was slabbed, changes to the materiality of the boundary fences and balustrades would by themselves adequately address the risk of death associated with a pool fire caused by damage to the pipeline in that they do not identify any evidence or other material which supports this conclusion.
9.Further, or alternatively, the Tribunal erred in failing to give adequate reasons
PARTICULARS
a. It is a condition of the Tribunal’s valid exercise of decision-making power that it give adequate reasons.
b. To be adequate, reasons must demonstrate the path of reasoning actually engaged in by the decision-maker.
c. The Tribunal’s reasons are inadequate in that they do not show:
i. …; or
ii. How, or on what basis, the Tribunal concluded that, provided the pipeline was slabbed, the risk of death could be adequately addressed through changes to the material of the boundary fences and balustrades.
Submissions
The proposed grounds revolve around the same line of attack directed to the finding of the Tribunal that any residual risk could adequately be addressed by a change to the materials of the proposed boundary wall and balustrade. Viva submits that this finding of the Tribunal was not open on the evidence or was made in denial of procedural fairness. Success of the grounds turns on a detailed examination of the evidence set out above.
Viva submits that the critical conclusion of the Tribunal was that:
(a) no redesign of the proposed child care centre was necessary to respond to the residual risks after slabbing of the WAG pipeline; and
(b) instead, all that was required was that the materials to be used on the existing design have a certain heat resistant rating.
Viva says that these findings involved legal error on the basis that there was no evidence to support them, they were irrational or they were made in breach of procedural fairness.
Viva submits that both experts called by the parties, that is Ms Cann by ECM and Ms Polich by Viva, agreed that some redesign of the boundary wall or façade was required in order to address any residual risk to the children and other occupants of the child care centre that may arise from a pool fire. It says that the experts referred to the height, design and composition of the barrier but were unable to be more specific in the absence of a firm design or proposal.
Viva submits that there was no evidence that would establish that a mere change to the composition of the proposed wall would suffice and it was not put to either of the experts or the parties that it would be adequate.
ECM submits that the finding of the Tribunal was fairly open to it and reflected the evidence before the Tribunal. ECM emphasises the following matters.
First, the main issue of principle before the Tribunal was whether the safe operation of the WAG pipeline was a relevant matter to take into account when considering whether or not to grant a permit for the development and use of the site as a child care centre. Before the Tribunal the Council had contended that it was not a relevant matter. The Tribunal, after examining both the pipeline and planning schemes, concluded that the safe operation was a relevant matter but that it was a subsidiary issue and that safety was primarily governed by the Act and accompanying Scheme. In effect, ECM argues that it was found by the Tribunal to be a peripheral matter.
Second, the Tribunal proceeded on the basis that Viva would comply with its regulatory obligations and in doing so would reduce the risks arising from the operation of the WAG pipeline to ALARP. In doing so, the Tribunal proceeded on the basis that the area on top of the WAG pipeline would be covered by a concrete slab within 75 metres of the proposed child care centre.
Third, the Tribunal accepted that the pipeline itself would not fail. To the extent there was a risk of rupture to the pipeline that risk arose from an external source such as excavation or drilling. In relation to this risk, the slabbing would address the risk of an event of penetration of the WAG pipeline by proving both a physical and visual protective barrier leaving only a potential for a penetration beyond the slab permitter.
Fourth, although there was scope for the planning decision to address the residual risk after compliance with the pipeline regulatory regime, the risk was very small. That risk was constituted by ‘unauthorised external interference beyond what would be the slabbed sections of the WAG pipeline’.[35]
[35]Reasons, [154].
Fifth, the evidence of Mr Cann about the need for a redesign of the boundary fences was given in the context of his opinion that slabbing was not required.
Sixth, in the light of the narrow scope of the risk and the evidence, ECM submits that it was open to the Tribunal to address any redesign of the fence or boundary by way of a secondary consent that was addressed to the fire resistance of the materials to be used.
By reason of these matters, ECM submits that Viva’s attack is on a condition rather than the grant of the permit, and the issues of concern raised by it were adequately and fairly addressed by way of the condition that imposed a secondary consent. It says that the conclusion of the Tribunal that the residual risk, small as it is, could be adequately addressed by a secondary consent going to the fire resistant qualities of the materials to be used was a question of fact and its conclusion on that topic was open to the Tribunal.
Consideration
I accept ECM’s submission that the Tribunal was satisfied that the risks arising from the operation of the WAG pipeline were primarily to be addressed under the Act and accompanying regulatory regime. Viva does not dispute that the Tribunal was entitled to proceed on the basis that Viva would comply with its regulatory obligations.
Nevertheless, the Tribunal accepted that there was a residual risk and that it would be prudent to address that risk in the context of planning permission. To the extent that the ECM could address this residual risk, the focus was on internal access to allow for prompt evacuation and to modifications to the boundary fence.
The evidence as to the need for some modifications to the boundary fence comprised at least the following:
(a) the acknowledgement by ECM in the SMS;
(b) the undertaking proffered by ECM to pay for the slabbing and to address the acknowledgment in the SMS as to the modification of the boundary fence;
(c) the oral evidence of Ms Polich; and
(d) the evidence of Mr Cann in his written report and in oral evidence.
The gravamen of that evidence was that it would be possible to address any residual risk by modifying the boundary wall. The evidence was to the effect that this would need to encompass potential changes to the height and composition of the wall or barrier. In addition both Ms Polich and Mr Cann agreed that it was necessary to design the boundary in a way that shielded the occupants of the child care centre and that this may require a vertical and horizontal structure.
It is true, as ECM submits, that Mr Cann’s initial opinion was that there should be modifications to the fence or boundary but that slabbing was not required. However, by the end of his evidence Mr Cann had expressed the opinion that both slabbing and a modified boundary were required. He retracted his earlier opinion that slabbing was not required on the basis that it had been affected by a mathematical error on his part. However, his final opinion did not revise his earlier evidence that a modification to the wall would be necessary. This accorded with the evidence of Ms Polich.
Notwithstanding this evidence, the Tribunal concluded that no major redesign was required and that the residual risk could be addressed by changing the materials of the wall so as to resist radiant heat to 4.7kw/m2. In other words, the only change to the plans would be to the composition of the wall.
In my view the first problem with that conclusion is that neither expert was asked whether a change to the composition of the wall would reduce the risk of harm to the occupants to an acceptable level. Further, the substance of their evidence was that substantial design work would be required and that any opinion as to the efficacy of the alteration would depend on the detail of the design. It was for that reason that ECM agreed to the suggestion that an interim decision would be appropriate in the event that the Tribunal was persuaded to grant a permit.
The Tribunal found that the slabbing would prevent a penetration of the WAG pipeline underneath the slab. The residual risk was associated with a penetration that might occur beyond the boundary of the slab. In such an event, the Tribunal found that a 25mm rupture of the pipe would not result in any outside areas being exposed to a radiant heat of more than 4.7kW/m2. However, the Tribunal accepted that a 100mm release event might result in a 50sqm area of the first level play area being exposed to radiant heat above 4.7kW/m2 and potentially areas of between 120sqm and 220sqm at ground level.
It must be acknowledged that the area of residual risk was, relatively speaking, a small one and whether the response to that risk was adequate was a question of fact for the Tribunal to determine. Nevertheless, given the Tribunal’s finding that there was a residual risk even after the pipeline surface had been covered with a concrete slab and that it was prudent to respond to that risk in the planning context, I am unable to accept ECM’s submissions that the question of residual risk and the imposition of the condition to respond to that risk were peripheral and did not go to the question whether the permit should be issued. The Tribunal’s findings do not permit a conclusion that the condition was insignificant or immaterial to the overall decision to grant the permit.
In the light of the evidence of the experts, it was not open to conclude that a change to the wall composition alone would achieve the purpose even if the wall was constructed to a particular fire rating. Although the impugned condition refers to both the boundary fence and ‘balustrade/screen’ there was no discussion about how the existing design could ensure an appropriate barrier for the full height that might be necessary to address the risk. In my opinion, the secondary consent that the Tribunal imposed was not the same as the interim decision contemplated by the parties. Given the form of the secondary consent, it would not be open to the Council to revisit the design as the condition requires the plans to generally accord with the submitted plans. A point made by both Ms Polich and Mr Cann was the need for shielding of the occupants that might require some horizontal protection but this aspect was not specifically addressed in the reasons.
The Tribunal is an expert body, and at least since the observations of Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd, it has been accepted that supervisory courts should be reluctant to conclude that a factual conclusion was not open to an expert planning tribunal.[36] However, the issue of fact involved an assessment of the ability of a wall to respond to fire. As the reasons of the Tribunal show, these issues were not typical planning issues. Of course, the Tribunal was not obliged to accept the expert evidence and once the risk had been assessed by reference to expert evidence of the kind given by Ms Polich and Mr Cann, the question of whether the risk was acceptable or needed to be addressed was a matter for the Tribunal. However the primary facts as to the protective qualities of the proposed wall were a matter for expert evidence. It is not apparent that the Tribunal used its specialised knowledge to make its finding, nor that it had the relevant expertise to address the critical questions concerning protection against radiant heat of a kind generated by a pool fire.[37] Fairness to the parties also dictated that before reaching its conclusion, the Tribunal should have given the witnesses and the parties the opportunity to comment.
[36][1973] VR 1.
[37]Zaitsev v Building Appeals Board [2019] VSC 364, [53], [57]–[58] (Quigley J).
Thus, in arriving at that conclusion the Tribunal denied procedural fairness to the parties. On the basis of the evidence that was adduced, ECM submitted to the Tribunal that an interim decision would be appropriate in fairness to Viva and the Council so that they could consider the detail of what might be proposed. The matter was left on the basis that the Tribunal would either refuse the permit or make an interim decision to deal with any uncertainty over the potential design of the barrier. It was not put to the parties that it would be adequate to change the composition of the wall nor was it put to them that one option would be to approve subject to a secondary consent process. It is likely that had they been asked, the experts would have expressed an opinion on the proposed condition, however, they were not asked. And, it may be that the evidence ultimately establishes that a change to the composition of the wall and balustrade would be adequate to the task, having regard to the Tribunal’s conclusions as to risk and the primary role of the Act in ensuring the safe operation of the WAG pipeline.
It follows that I would uphold grounds 7 and 8. It is not necessary to deal with ground 9.
Disposition
I would grant leave to appeal and allow the appeal. In my view, the decision to grant the permit should be set aside. In the circumstances it is appropriate to remit the matter to Tribunal as previously constituted. I reach that conclusion because the parties accepted that an interim decision was appropriate. That is they accepted that the Tribunal might need to be further involved in relation to any change to the design of the wall. In my view that course should remain open. I do not consider that the conclusion reached by the Tribunal precludes it from fairly dealing with the remitter nor gives rise to any concern as to bias. I will hear from the parties on the form of the order.
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