Plaintiffs Seek Quashal of Minister's Decisions
Moorabool Shire Council v Minister for Planning [2021] VSC 701 (28 October 2021)
Amendments were made to the Moorabool Planning Scheme to facilitate the use and development of land in Maddingley as requested by the Maddingley Brown Coal Pty Ltd. The Minister decided to exempt himself from statutory notice requirements. The Minister in effect gave planning approval for the use and development of the site as the Maddingley Spoil Processing Facility. Moorabool Shire Council and Moorabool Environment Group Inc. (MEG) seek orders quashing the Exemption Decision, the Adoption Decision, and the Approval Decision.
Facts:
On 28 April 2020, Maddingley Brown Coal Pty Ltd requested the Minister for Planning to amend the Moorabool Planning Scheme to facilitate the use and development of land in Maddingley, south-east of Bacchus Marsh, as a spoil processing facility associated with the West Gate Tunnel project. The Maddingley site was one of three that were in contention to receive tunnel spoil from the construction of the West Gate Tunnel. The Minister subsequently prepared Amendment C95moor which would, if approved, insert an Incorporated Document titled ‘Maddingley Spoil Processing Facility, October 2020’ into the Moorabool Planning Scheme. On 19 November 2020, the Minister made three decisions under the Planning and Environment Act 1987 (Vic) (Planning Act): (a) a decision under s 20(4) to exempt himself from the requirements of ss 17, 18 and 19 in respect of the Amendment (Exemption Decision); (b) a decision under s 29 to adopt the Amendment (Adoption Decision); and (c) a decision under s 35 to approve the Amendment (Approval Decision).
The effect of these three decisions was to give planning approval for the use and development of the site as the Maddingley Spoil Processing Facility, for the receipt, storage, treatment, handling, testing, analysis, containment, placement and removal off-site of spoil generated by the construction of the West Gate Tunnel project. The Minister was able to make the Adoption Decision and the Approval Decision without complying with the notice and public submission requirements of Pt 3 of the Planning Act in respect of the Amendment. Moorabool Shire Council and Moorabool Environment Group Inc. (MEG) seek orders quashing the Exemption Decision, the Adoption Decision, and the Approval Decision. The Council also seeks an order quashing the gazettal of the Amendment.
By Ground 1, both the Council and MEG contend that the Exemption Decision involved an error of law on the face of the record, or alternatively a jurisdictional error, because the Minister wrongly believed that the Environment Protection Authority (EPA) had approved an environment management plan (EMP) for the Maddingley site under the Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic) (Spoil Management Regulations). Both plaintiffs say that the unsoundness of the Exemption Decision means that the Adoption Decision and the Approval Decision are consequentially invalid.
By Ground 2, the Council contends that the Minister wrongly concluded that the views of the Council in relation to the Amendment were ‘reasonably well known’, and that further consultation would not be productive. By Ground 3, the Council challenges the legality of the Amendment on the basis that it requires the Council to enter into an agreement under s 173 of the Planning Act, which is not authorised by the Planning Act and is repugnant to other legislation.
Issues:
I. Whether or not the reference to EPA’s approval of EMP involved an error of law.
II. Whether or not approval is material to exemption decision.
III. Whether or not Minister’s conclusion that the views of Council were reasonably well known so further consultation is not required involved an error of law or jurisdictional error.
IV. Whether or not the Minister's decision is invalid because an Incorporated Document requires the Council to enter into an agreement under s 173 of the Planning and Environment Act 1987 (Vic) regarding road works and improvements.
Applicable law:
Environment Protection (Management of Tunnel Boring Machine Spoil) Regulations 2020 (Vic), regs 4, 6 - made on 30 June 2020, with the objective of providing a mechanism for the management and disposal of tunnel boring machine spoil to protect human health and the environment.
Planning and Environment Act 1987 (Vic) ss 6(1), 6(2) - sets out what may be included in a planning scheme.
Planning and Environment Act 1987 (Vic) ss 17, 18, 19, 20(4), 20(5) - the purpose of which is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 - provides that regulation 6(2) of the Environment Act specifies “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”
MZAPC v Minister for Immigration and Border Protection(2021) 390 ALR 590 - relied upon by the Council in submitting that the EPA’s purported approval of the EMP had always been a nullity and lacked statutory force from the outset; its invalidity had merely been confirmed by the orders made by Daly AsJ on 16 February 2021.
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 - observed that materiality is a common restriction upon the issue of a writ of certiorari for both jurisdictional error and error of law on the face of the record.
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 - relied on the established principle that there is no error of law in making a wrong finding of fact, unless there is no material to support the finding.
New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 - where Gageler J canvassed some of the circumstances in which an invalid decision can have legal consequences.
Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd [2020] VSCA 332 - where the approach of not attempting to replicate, in a planning permit, matters that are controlled by a licence or works approval granted by the EPA, were held to be because it promotes consistency and minimises conflict between the two schemes.
Werrin v The Commonwealth (1938) 59 CLR 150 - held that money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable.
Ruddock v Taylor (2005) 222 CLR 612 - where the Minister’s power in s 20(4) of the Planning Act was enlivened on ‘reasonable suspicion’ that a relevant state of affairs existed.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 391 ALR 270 - where there was a question of statutory construction to be resolved.
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 - where it was held that s 20(4) is not a provision that recognises the factual existence of a legally ineffective decision in order to enable merits review of the decision.
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 - provides that the test for materiality is when the error would have been material to the Exemption Decision.
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 - provides that the principle that the usual position is that an error of law on the face of the record does not render a decision liable to be set aside unless the error was material.
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 - where it was not reasonable or rational for the Minister to conclude that formal exhibition of the Amendment was unlikely to result in any significant changes to it.
Lower Our Tracks Inc v Minister for Planning (2016) 219 LGERA 352 - relied upon by the Minister in saying that s 20(5) of the Planning Act did not oblige him to consult with the Council.
Bank of New South Wales v Commonwealth[1948] HCA 7; (1948) 76 CLR 1 - where the impugned clauses were interdependent with cl 4.1 of the Incorporated Document, and could not be severed without giving the Incorporated Document a substantially different operation.
Department of Premier and Cabinet v Birrell (No 2) [1990] VicRp 5; [1990] VR 51 - where in the alternative, if the impugned clauses were found to be invalid, the Minister contended that they could be severed from the Incorporated Document, as permitted by s 22(1) of the Interpretation of Legislation Act 1984 (Vic).
Analysis:
The Minister’s reference to the EPA’s approval of the EMP under the Spoil Management Regulations was, at its highest, a finding of fact that was open on the material before him. There is no error of law in making a wrong finding of fact, unless there is no material to support the finding. A thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact. The Minister argued that the EPA’s approval of the EMP was a thing in fact at the time of the Exemption Decision and that even if it was a nullity that lacked statutory force, that did not deprive it of its factual existence for the purposes of the Minister’s decisions under the Planning Act.
The Reasons indicated that the Minister was satisfied that the various environmental concerns were adequately addressed because of the environmental management framework established by the Incorporated Document, independently of the EPA’s prior approval of the EMP. The Minister’s Reasons recorded that he had decided to exercise the power in s 20(4) of the Planning Act because he considered that the interests of Victoria made the exemption appropriate, and because he considered that compliance with the requirements of ss 17 to 19 was not warranted. He argued that he had no independent statutory duty to assess whether the EMP met the requirements of the Spoil Management Regulations.
Conclusion:
Both proceedings must be dismissed. While the Minister was mistaken, because the approval was not valid, his mistake did not involve an error of law. It was open to the Minister to conclude that the views of the Council in relation to the Amendment were reasonably well known, and that further consultation and public exhibition would be unlikely to identify new issues or result in further changes to the Amendment. The exemption decision not affected by jurisdictional error. The Incorporated Document does not compel the Council to enter into a s 173 agreement. The approved use and development is conditional on the owner of the site entering into an agreement with the Council.
