Walsh Ballarat Quarries Pty Ltd v Ballarat City Council
[2022] VSC 546
•15 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04847
| WALSH BALLARAT QUARRIES PTY LTD | Applicant |
| v | |
| BALLARAT CITY COUNCIL | First Respondent |
| ANDREA STRAWHORN | Second Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 August 2022 |
DATE OF JUDGMENT: | 15 September 2022 |
CASE MAY BE CITED AS: | Walsh Ballarat Quarries Pty Ltd v Ballarat City Council |
MEDIUM NEUTRAL CITATION: | [2022] VSC 546 |
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ADMINISTRATIVE LAW - Application for leave to appeal and appeal of Victorian Civil and Administrative Tribunal decision – Where Tribunal did not allow the applicant to re-open its case and adduce new evidence – Where Tribunal decided a cultural heritage management plan was required under the Aboriginal Heritage Act 2006 – Definition of ‘waterway’ – Legal error in the exercise of a discretion – Failure to take into account a relevant consideration – Application for leave to appeal and appeal allowed – Orders of Tribunal set aside – Remitted to VCAT for rehearing – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms L Hicks | Velocity Legal |
| For the First Respondent | No Appearance | No Appearance |
| For the Second Respondent | No Appearance | No Appearance |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. The area of cultural heritage sensitivity and the mapped wetlands.................................. 2
C. The application to and process before the Tribunal............................................................. 6
C.1The material exchanged before the hearing...................................................................... 6
C.2The Tribunal hearing............................................................................................................ 8
C.3The Nicholas Clark report and the application for leave to rely on it........................... 9
C.4The Tribunal’s final conclusion......................................................................................... 11
D. Was there legal error on the part of the Tribunal?.............................................................. 11
E. Disposition................................................................................................................................... 14
HIS HONOUR:
A.Introduction
Walsh Ballarat Quarries Pty Ltd, the applicant, wishes to expand its quarry into a neighbouring block on Learmonth-Sulky Road, Blowhard, in north central Victoria. The Department of Environment, Land, Water and Planning’s (‘DELWP’) planning property report recorded an area of ‘cultural heritage sensitivity’ on the neighbouring block. Walsh Ballarat Quarries obtained the necessary approvals from the Earth Resources Regulation branch of the Department of Jobs, Precincts & Regions under the Mineral Resources (Sustainable Development) Act 1990. The Ballarat City Council, the first respondent, determined to issue a notice of decision to grant an amended planning permit to allow the expansion. However, Ms Andrea Strawhorn, a neighbour and the second respondent, brought a proceeding in the Victorian Civil and Administrative Tribunal in which she sought to have the Council’s decision reviewed. She contended, and Walsh Ballarat Quarries disputed, that a cultural heritage management plan was required by the Aboriginal Heritage Act 2006 and the Aboriginal Heritage Regulations 2018.[1] It was common ground that if a cultural heritage management plan was required then the determination to issue a notice of decision to grant a permit would have to be set aside.
[1]In accordance with pt 4 div 2 of the Aboriginal Heritage Act 2006 (Vic), a cultural heritage management plan is required if the Aboriginal Heritage Regulations 2018 (Vic) require the preparation of a plan for the activity.
The Tribunal set down for hearing as a preliminary point the question as to whether a cultural heritage management plan was required by the Aboriginal Heritage Act 2006. The Tribunal concluded that a cultural heritage management plan was required. It made an order setting aside the Council’s decision and remitting the application for a planning permit to be determined in accordance with s 52(1) of the Aboriginal Heritage Act 2006. Walsh Ballarat Quarries now seeks leave to appeal to this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 against that decision. Any appeal is limited to an appeal on a question of law.
Walsh Ballarat Quarries contends that it was not open to the Tribunal to reach the conclusion that it did, and that the Tribunal denied it procedural fairness. Part of the denial of procedural fairness, it said, was a refusal by the Tribunal to grant it leave to reopen its case to add further evidence after the preliminary point had first been argued. The Council indicated that it did not intend to take any role in this proceeding and that it would abide the result. Ms Strawhorn, through her lawyers, filed a notice indicating that she did not intend to respond to or to contest the application. Accordingly, the application before me was unopposed. That, however, does not remove from Walsh Ballarat Quarries the obligation to establish relevant legal error.
In order to understand what occurred, and the Tribunal’s decision in context, it is necessary to consider the facts in some detail.
B. The area of cultural heritage sensitivity and the mapped wetlands.
The Aboriginal Heritage Regulations 2018 require a cultural heritage management plan for an activity if ‘all or part of the activity area for the activity is an area of cultural heritage sensitivity’.[2] A map prepared by DELWP (the ‘DELWP Map’) indicated that there was an ‘area of cultural heritage sensitivity’ that extended a small amount into the neighbouring block. The map indicated the area of cultural heritage sensitivity by a blue blob. The red dotted line outlines the neighbouring block into which Walsh Ballarat Quarries wished to expand its quarry. For reasons that will be considered later, it should be noted that there is a series of straight blue lines that extend to the north-west from the marked area. A copy of the DELWP Map is set out below.
[2]Regulation 7. There is an additional requirement that is not relevant in this appeal.
In an attempt to avoid triggering the requirement for a cultural heritage management plan, Walsh Ballarat Quarries’ application to the Department of Jobs, Precincts and Regions for a work plan variation and its application to the Council for an amended planning permit both provided that the relevant activity of the expanded quarry would be limited so that there would be a 20 metre buffer between it and the mapped area of cultural heritage sensitivity. It did this by preparing a ‘site layout plan’ that it included in its application documents. The site layout plan showed an area referred to as an ‘Aboriginal values sensitivity area’ by a dark green blob. A copy of the relevant part of the site layout plan is set out below. The red line, to the south of the yellow line, is the proposed boundary of the ‘activity area’.
There was also, however, another a map, based on information obtained from DELWP, in a hydrological impact assessment report that indicated that there was a registered ‘wetland’ that extended more substantially into the neighbouring block (the ‘Wetland Map’). The ‘wetland’ was marked on this map by a light green blob. The same straight blue lines may be seen as are shown on the DELWP Map. A copy of the Wetland Map is set out below.
Both maps and the site layout plan were before the Tribunal. A comparison of them indicates that:
(a) the ‘wetland’, or light green blob, on the Wetland Map is significantly larger than the area of cultural heritage sensitivity in the DELWP Map; and
(b) the area marked in dark green on the site layout plan, despite the use of green rather than blue, in fact indicates the area of ‘cultural heritage sensitivity’, rather than the wetland. Indeed, the boundary of the wetland may be seen on the site layout plan as a faint, thin blue line.[3] This can be deduced by the fact that the area within the faint blue line on the site layout plan is congruent with the light green blob on the Wetland Map.
[3]The line is hard to see. At the top right corner of the area bounded in yellow, it can be seen passing in a south-west direction under the ‘Soil Stockpile’ label.
There was no material before the Tribunal that identified in terms why the area marked in blue on the DELWP Map was an area of cultural heritage sensitivity.
The existence of the wetland was of potential significance because r 26 of the Aboriginal Heritage Regulations 2018 provides that:
(1)… a waterway or land within 200 metres of a waterway is an area of cultural heritage sensitivity.
A ‘waterway’ is relevantly defined in r 5 as including:
(c) a lake, lagoon, swamp or marsh, being—
(i)a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole of or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or
(ii)a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the Water Act 1989 to be a lake, lagoon, swamp or marsh…
Accordingly, if the ‘wetland’ were a ‘waterway’, then the wetland and the area within 200 metres of it would be an area of cultural heritage sensitivity, and a considerable part of the proposed quarry’s activity area would be on that area of cultural heritage sensitivity, with the result that a cultural heritage management plan would be required.
The hydrological impact assessment report, which included the Wetland Map, considered the wetland only from the view of determining whether or not it would be detrimentally affected by the proposed quarry expansion. It did not consider whether it was a ‘waterway’. The hydrological impact assessment report concluded that the ‘loss of catchment’ as a result of the quarry expansion would result in ‘negligible changes to the hydrological regime’ and that the proposed quarry expansion would ‘not detrimentally impact the water regime of the downstream ephemeral wetland’. Further, a memorandum prepared by the same experts, also before the Tribunal, stated that the southern area of the mapped wetland was ‘not capable of supporting wetland associated vegetation’, that it (they understood) supported ‘the usual regular rotation of cereal crops and grazing that characterise farming enterprises’ in that district and, ultimately, that it may therefore ‘be excluded from the assessment process’.
If the distinction between the marked site of cultural heritage sensitivity and the marked wetland is borne in mind, it is apparent that Walsh Ballarat Quarries was assuming in its site plan that the ‘wetland’ was not a ‘waterway’ and that the only area of ‘cultural heritage sensitivity’ was the area marked in blue on the DELWP Map.
C. The application to and process before the Tribunal
C.1 The material exchanged before the hearing
Ms Strawhorn, who had objected to the planning permit and was the applicant to the Tribunal, contended in her statement of grounds that a cultural heritage management plan was required, but did not identify why.
There was then, however, an exchange of written submissions. Ms Strawhorn, in her written submission, which was prepared by a lawyer, did not contend that the need for a cultural heritage management plan arose because of the existence of the wetland or that the wetland was a ‘waterway’. She did not refer to the wetland at all. Rather, she accepted that the relevant ‘area of sensitivity’ was the area marked in green on the site layout plan ( set out in para 6 above), but challenged the efficacy of simply limiting the proposed ‘area of activity’ to an area below that. Her written submissions, which were exchanged in advance of the Tribunal hearing, included the following:
[22]… In this case, the northern boundary of the work authority area has been designed to skirt around the area of cultural heritage sensitivity in order to avoid triggering a mandatory requirement to prepare a CHMP. Such an approach seems at odds with the purpose of requiring a CHMP to be prepared and the objectives of the AH Act …
[36]… [A]lthough the area of cultural heritage sensitivity is clearly identified on the plans submitted with the Amendment Application, there is no fencing shown around the area of sensitivity and only a generally worded condition …
[38]… [W]e do say that:
a) the extent of the activity area is not conclusively determined by a line on a plan showing the extraction area limit …
[47]To make a finding that the activity area is limited to the boundary of the extraction area or, indeed, the work authority boundary, the Tribunal must be satisfied that, in a practical sense, the land use will be so contained. In our submission, it is not difficult to imagine activities associated with the quarry bleeding into the area of sensitivity over time …
[60]In the Applicant’s submission:
a) the material which currently forms the Amendment Application does not provide sufficient demarcation between the extraction area and the area of cultural heritage sensitivity to its immediate north to enable a conclusion that the activity area is confined to the extraction area limit …
Walsh Ballarat Quarries, in its written submissions, referred to the ‘wetland to the north’ and submitted that it was not a ‘waterway’ because it was ‘a natural depression on private land’.
Accordingly, the material exchanged before the Tribunal hearing indicated that:
(a) Walsh Ballarat Quarries had referred the application to (among others) DELWP and the Wathaurung Aboriginal Corporation,[4] and neither of those entities had contended that a cultural heritage management plan was required (although the relevant correspondence was not in evidence);
(b) the Council’s position was that a cultural heritage management plan was not required because the ‘activity area’ was ‘removed from the mapped area of Aboriginal Cultural Heritage Sensitivity’. The Council did not contend that the mapped wetland was a ‘waterway’ which caused the need for a cultural heritage management plan; and
(c) Ms Strawhorn accepted that the relevant ‘area of cultural sensitivity’ was the area marked in green on the site plan, but contended that it was insufficient simply to limit the activity by a line on the plan. Importantly, she did not contend that the wetland was otherwise significant or amounted to a ‘waterway’.
[4]This entity is now known as the Wadawurrung Traditional Owners Aboriginal Corporation, and is the registered Aboriginal party in relation to the proposed activity area in accordance with pt 10 of the Aboriginal Heritage Act 2006 (Vic).
For this reason, going into the Tribunal hearing, Walsh Ballarat Quarries had no reason to anticipate that the question of whether or not a cultural heritage management plan was required would depend on whether the proposed work activity area was on, or too close to, a ‘waterway’. Rather, the issue, as joined by the parties, was whether the marking of a line on the site layout plan 20 metres below the agreed ‘area of cultural heritage sensitivity’, as recorded on the DELWP Map, was sufficient to avoid the need for a cultural heritage management plan.
C.2 The Tribunal hearing
Ms Strawhorn was represented at the Tribunal hearing. Her lawyer made submissions that were consistent with the written submissions circulated in advance: ‘it should not be as simple as drawing a line on a plan to avoid an area of sensitivity and then moving on.’ Council submitted that no cultural heritage management plan was required because of the 20 metre ‘buffer’ and that it was ‘common ground’ that ‘there’ll be no extraction to occur within the area of cultural sensitivity.’
However, when counsel for Walsh Ballarat Quarries was addressing the Tribunal, the Tribunal referred to the definition of ‘waterway’ extracted above, and engaged with its counsel on the question as to whether or not the wetlands were a waterway and if so whether a cultural heritage management plan was required for that reason. As the above analysis makes clear, neither Ms Strawhorn nor the Council was contending for that conclusion. In the course of that discussion, the Tribunal gave Walsh Ballarat Quarries leave to file further material directed at whether or not the Governor in Council had declared the wetland to be a lake, lagoon, swamp or marsh, which was relevant to para (c)(ii) of the definition of ‘waterway’. In reply, the solicitor appearing for Ms Strawhorn said:
We haven’t made submissions about the DELWP wetland area. I think for today’s purposes all I would say is it’s certainly not unheard of for the public online mapping to have inaccuracies in it. And to the extent that there is some doubt about whether that wetland is an area of sensitivity or the area shown as green on the site layout plan accurately reflects the extent of the area of cultural heritage sensitivity, we’d suggest that a cultural expert would be precisely the person who could advise the tribunal about that.
C.3 The Nicholas Clark report and the application for leave to rely on it
Following the hearing, Walsh Ballarat Quarries obtained two expert reports. One confirmed that the Governor in Council had not made a declaration relating to the wetlands. The other was by Mr Nicholas Clark, a ‘qualified Aboriginal heritage advisor’ with experience in archaeology and Aboriginal heritage management. One of the questions he was asked to address in the report was ‘whether the area of sensitivity ought to be corrected on the trigger area plans to include any or all of the areas identified as “DELWP wetlands”.’ Mr Clark investigated various records relating to the relevant area. He stated in his report (among other things) that:
(a) although the area of cultural heritage sensitivity marked on the DELWP Map largely coincided with the ‘wetland’ marked on the Wetland Map, the area of cultural heritage sensitivity was not mapped as an area of cultural heritage sensitivity because of any connection with the wetland. Rather, it was an area of cultural heritage sensitivity because of the type of sedimentary deposits that were there; and
(b) the group of ‘artificially straight’ lines shown leading into the wetland from the north west is, according to the government records, a ‘drain_channel’ (that is, a constructed channel and so not a river, creek, stream or watercourse). That is the reason for which the wetland, or the area subject to inundation, was not recorded in the Victorian Aboriginal Heritage Register as an area of cultural heritage sensitivity.
On 12 November 2021, Walsh Ballarat Quarries sought leave to reopen its case so that it could rely on Mr Clark’s report. Counsel indicated that it had been prepared as a result of the questions put by the Tribunal, but conceded that Mr Clark’s report then ‘expanded’ into considering other relevant issues. Walsh Ballarat Quarries sought to have the report received, and for there to be time for the parties to make submissions in relation to it. It accepted that there would be at least some costs consequences for it. Ms Strawhorn objected to the evidence being received. She did not point to any prejudice save for the additional costs that would be incurred. The Council indicated that if the report assisted the Tribunal, then it should be received.
The Tribunal dismissed Walsh Ballarat Quarries’ application for leave to reopen its case and to tender Mr Clark’s report. In reasons delivered ex tempore, but later published,[5] the Tribunal stated:
[5]The quote is from the published reasons.
[26]In my view, those matters on which Mr Clarke was instructed by the respondent’s consultant are all matters that were raised either in the applicant’s written submissions filed with the Tribunal on 11 October 2021, or indeed by the respondent in its written submissions on the preliminary issue of whether a CHMP is required, including whether or not Mapped Wetland 37068 is a ‘waterway’ for the purposes of the Aboriginal Cultural Heritage Regulation 2018.
…
[33] Where a party seeks to re-open its case, it is relevant to consider whether there was a deliberate decision not to call that evidence at the hearing.
[34] As conceded by counsel for the respondent, there was no impediment to evidence from a cultural heritage advisor being led and relied upon at the preliminary hearing on 14 October 2021.
[35]At the preliminary hearing, counsel for the respondent firmly denied, despite the applicant’s submissions to the contrary, that there was any need for expert evidence from an aboriginal cultural heritage advisor in order to determine whether a CHMP is required. A forensic decision was taken by counsel for the respondent that no such evidence was required in order for the issues before me at the preliminary hearing to be determined.
[the Tribunal then referred to relevant passages from Spotlight Pty Ltd v NCON Australia [2012] VSCA 232, [17]–[18]]
[38]… Granting leave to the respondent to adduce the evidence from Mr Clarke as contained in his statement would not lead to the expeditious determination of the whether a CHMP is required.
[39]Because Clarke’s statement is largely expressed as submissions on legal issues, I would not be assisted by his statement and the conclusions contained therein. In my view, what Mr Clarke’s statement seeks to do is to reopen and polish the respondent’s case that was before me on 14 October 2021. Further, the re-opening of the respondent’s case so that it may have another attempt on the question of whether a CHMP is required through Mr Clarke’s statement would not be expeditious because it would involve the scheduling of another hearing in this proceeding which would almost certainly interfere with the scheduled dates for a compulsory conference and final hearing in the proceeding.
[40]Accordingly, in the interests of justice and to ensure finality of litigation on the issues before me at the preliminary hearing, I do not grant leave to the respondent to adduce or rely on the evidence of Mr Clarke contained in his statement of 26 October 2021. [6]
C.4 The Tribunal’s final conclusion
[6]Emphasis added.
On 29 November 2021, VCAT found a cultural heritage management plan was required. The Tribunal did not so conclude because it accepted Ms Strawhorn’s argument that it was insufficient to have a 20 metre buffer zone between the activity zone and the area of cultural heritage sensitivity. Instead, the Tribunal concluded that a cultural heritage management plan was required because the ‘wetland’ shown on the Wetland Map was a ‘waterway’. The Tribunal’s reasoning included the following:
[47]As can be seen from [the Wetland Map], a waterway flows into Wetland 37068 (passing through Wetland 37056).
…
[49]Given that Wetland 37068 is a natural collection of water into which a watercourse passes, it is a ‘waterway’ for the purposes of r. 26 of the AH Regulations.
[50]As part of the expansion area (designated by the approved work authority variation) is over area shown to form part of Wetland 37068, the requirements of r. 26(1) have been established and the area the subject of the amendment application is within 200 metres of an area of cultural heritage sensitivity. This would remain the case, even if the area of cultural heritage sensitivity was limited to that area shown on the extract to the planning property report.
The reference in para 47 to a ‘waterway’ was, clearly, a reference to the straight blue lines shown on that map that, Mr Clarke had established, were constructed drains or channels and so, at least arguably, not a ‘river, creek, stream or watercourse’.
D. Was there legal error on the part of the Tribunal?
When Walsh Ballarat Quarries applied for leave to re-open its case so that it could rely on Mr Clark’s report, the Tribunal was required to exercise a discretion. The power, it was agreed, to grant leave to re-open was found, at least, in s 80 of the Victorian Civil and Administrative Tribunal Act 1998, that says:
The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.
The exercise of a discretion will involve an error of law if the Tribunal fails to take into account a matter that it was bound to take into account, or takes into account an irrelevant consideration, or if the exercise of the discretion was manifestly unreasonable in the sense that no reasonable decision maker could have exercised the discretion in that way.[7]
[7]Bell Corp Victoria Pty Ltd v Stephenson (2003) 20 VAR 280, 294–295 [31], [36] (Ashley J).
In my view, the Tribunal, when determining in the exercise of its discretion whether to permit Walsh Ballarat Quarries’ application to re-open its case so that it could rely on the evidence from Mr Clark, was obliged to have regard, among other things, to the substance of the evidence that Mr Clark could give, and to the reasons for which it was provided late. Its obligation to have regard to those matters arose from the obligation on it to have regard to the rules of natural justice, which included the obligation to accord each party a fair hearing.[8]
[8]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1). See also s 80, set out in para 27 above.
On this occasion, I am satisfied that the Tribunal’s exercise of its discretion miscarried because it failed to have regard to the matters identified in para 29 above. Mr Clark’s evidence was not limited to an assertion as to how the legislation ought to be interpreted. Crucially, he gave evidence to the effect that the blue lines on the Wetland Map were drains, not natural water flows. That evidence was of great potential significance to the question as to whether the marked wetlands were ‘waterways’; indeed, the Tribunal’s interpretation of those marks (in a way that was in tension with Mr Clark’s evidence) was the basis upon which it concluded that the wetlands was a ‘waterway’. The Tribunal made no reference in its reasons to this aspect of Mr Clark’s evidence. Indeed, its statement at the beginning of para 39 of its reasons set out in para 24 above indicates that it failed to appreciate this aspect of Mr Clark’s evidence. I am satisfied that this aspect of Mr Clark’s evidence was not weighed by the Tribunal when it was deciding whether or not to grant Walsh Ballarat Quarries leave to reopen its case to rely on Mr Clark’s evidence.
Also, but perhaps less significantly, the Tribunal did not have regard to Mr Clark’s evidence that the blue ‘blob’ on the DELWP Map was an area of cultural heritage sensitivity due to the sedimentary deposits that were there, and not because of any water features. In this way, his report revealed a disconnect, that was not otherwise obvious, between the area of cultural heritage sensitivity and the area marked as a wetland on the DELWP Map.
Similarly, the Tribunal failed to have regard to the fact that, prior to the Tribunal’s own questioning of counsel for Walsh Ballarat Quarries, no party had contended that the area over which the activity was to take place was a ‘waterway’, and the parties had instead approached the matter on the basis that the area over which the activity was to take place was only 20 metres away from the area of cultural heritage significance. The Tribunal was correct to observe that Walsh Ballarat Quarries had itself asserted that the wetland was not a ‘waterway’, but a relevant consideration was that:
(a) no one was contending to the contrary;
(b) no one was contending that it was a ‘waterway’ by reason of the flow of water represented by the blue lines on the DELWP Map; and
(c) the issue of what the blue lines on the DELWP Map represented had not been raised by Ms Strawhorn or anyone else.
Accordingly, while Mr Clark’s report did not respond only to the Tribunal’s request for information about whether the Governor in Council had declared the area to be a ‘waterway’, it was prepared in response to the hearing of 14 October 2022 at which the Tribunal had appeared open to making a finding that the wetland is a ‘waterway’. I am satisfied that the exercise of the discretion against Walsh Ballarat Quarries, and the exclusion of Mr Clark’s evidence, was material to the Tribunal’s order made on 29 November 2021 that a cultural heritage management plan was required and its ultimate order made on 6 December 2021 setting aside the Council’s decision and remitting the application for a planning permit to be determined in accordance s 52(1) of the Aboriginal Heritage Act 2006. This is because, as noted above, Mr Clark’s excluded evidence was directly relevant to, and potentially in direct conflict with, the factual finding made by the Tribunal upon which it relied to conclude that the wetland was a ‘waterway’. Having concluded that the decision to exclude that evidence was infected with legal error, and that error was material to the making of the 29 November 2021 order and the 6 December 2021 order, it follows that the appeal against the 29 November 2021 order and the 6 December 2021order must also succeed.[9]
[9]See, eg, Futuris Corporation Ltd v Exicom Ltd (1995) 18 ACSR 413, where it was acknowledged that alleged errors in the making of an interlocutory order may be raised in an appeal against the final order.
I am not saying that what the Tribunal did have regard to was irrelevant. It was proper for the Tribunal, of course, to have regard to the additional delay and cost that is associated with any application for leave to adduce further evidence after argument has finished and to the public interest in requiring parties to present all their evidence before the matter is to be argued rather than afterwards. But those matters have to be weighed against the other matters I have referred to, and in this case I am satisfied that they were not.
In these circumstances, it is not necessary to determine whether the finding by the Tribunal, based as it was on the Tribunal’s interpretation of the blue lines on the DELWP Map, was reached in breach of the rules of procedural fairness or was manifestly unreasonable, or whether the Tribunal’s decision not to permit Mr Clark’s evidence was otherwise manifestly unreasonable.
E. Disposition
Leave to appeal should be granted, the appeal allowed, and the orders appealed against made on 12 November 2021, 29 November 2021 and 6 December 2021 should be set aside.[10] An extension of time to apply for leave to appeal against the order made 12 November 2021 should be given. Walsh Ballarat Quarries’ application for leave to rely on Mr Clark’s evidence (and the costs consequences of it doing so), and Ms Strawhorn’s application for review, should be redetermined by the Tribunal. I will otherwise hear submissions on the precise form of order that should be made.
[10]I have taken the view that the 12 November 2021 is an order that is capable of being appealed against, rather than a ‘mere ruling’ (as to which see, eg, Sigma Constructions (Vic) Pty Ltd v Maryvell Investments Pty Ltd (2004) 22 VAR 279, 286–7 [18] (Batt JA)).
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