The Business Legal World

In this edition, we look at three cases from VCAT covering a proposed solar energy facility in Stanhope, a decision by President Quigley as to the standing of an objector to an application exempt from third party notice, and a costs application in connection with the Tribunal’s decision to overturn a Council’s refusal of an apartment development.

Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343

In the case of Globird Energy Pty Ltd v Campaspe SC [2020] VCAT 343, Senior Member Margaret Baird and Member Graeme David considered an application under s 77 of the Planning and Environment Act 1987 (P&E Act) to review the refusal of Campaspe Shire Council to grant a permit to use and develop 3799 Midland Highway Stanhope for a renewable (solar) energy facility.

The Tribunal overturned the permit refusal of the Campaspe Shire Council. Despite Council determining that the subject land was not an appropriate location for the facility, the Tribunal considered conflicting policy outcomes and found that the proposed facility would not cause detriment to the surrounding agricultural uses or the future use of the land for agricultural purposes. The Tribunal issued the permit subject to conditions.

The Council’s grounds for refusal focussed on the loss of agricultural land and the effect of the proposal on the amenity of the surrounding agricultural area. Whilst recognising there existed policy support for renewable energy facilities, the Council argued the subject land was not appropriately located.

The concerns of two local community groups of objectors included noise, the heat island effect, visual impact, traffic, drainage, and glint and glare of the solar panels.

The determinative issue was the conflicting policy objectives that sought to protect agricultural land while supporting the development of renewable energy facilities in appropriate locations.

Although the subject land contained good quality soil, it was not found to be high quality productive agricultural land. The Tribunal found that the applicant’s proposed facility would not change or degrade the soil condition, did not subdivide or further fragment agricultural land, and the infrastructure to service the facility could be removed so the land could be re-used for agricultural pursuits in future. In regards to the heat island effect (a policy basis for which existed for an urban heat island effect, but not a rural heat island effect), the Tribunal dismissed this objection, as the respondents failed to provide a proper basis for it. The Tribunal found that the noise, drainage, traffic, glint and glare, and visual impact did not warrant a refusal of the applicant’s permit. These issues could be addressed by management plans and other conditions within the permit.

Tess Kerridge, Senior Associate, Holding Redlich

The subject land was deemed to be an appropriate location for the proposed solar renewable energy facility due to it being small and within an area fragmented with rural living properties. The Tribunal found it could offer diversification without unreasonable negative impacts on the surrounding area. The fact that the subject land benefited from irrigation was taken into consideration, however this was not determinative in and of itself as multiple adjacent and nearby properties also possessed this benefit yet did not utilise it in their various rural operations.

Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 555

In the matter of Maddingley Brown Coal Pty Ltd v Moorabool SC [2020] VCAT 555, President Quigley determined an application under s 87 of the Planning and Environment Act 1987 (P&E Act) by Maddingley Brown Coal Pty Ltd (MBC) to cancel a planning permit that had been issued to Fisken Bacchus Marsh Pty Ltd (FBM) by the Moorabool Shire Council for a 53-lot subdivision of a 7.9 hectare parcel of land at 30 Fisken Street, Maddingley.

In response to the cancellation application by MBC, FBM made an application for summary dismissal pursuant to s 75 (1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). FBM submitted that MBC lacked standing to bring the cancellation application because the subject planning permit application was exempt from third party notice. The objection submitted by MBC could therefore not properly be characterised as a formal objection, and consequently MBC was not able to enjoy the third party review rights available to any person ‘who objected or would have been entitled to object to the issue of a permit’ under section 89(1) of the P&E Act.

President Quigley found that MBC did not have standing to bring the cancellation request and summarily dismissed MBC’s application.

Pursuant to clause 32.04-12 of the Moorabool Planning Scheme, Council was not required to and did not advertise FBM’s planning permit application. Despite this, MBC lodged an objection, which Council took into consideration notwithstanding s 60(3) of the P&E Act, which provides that a Council is not required to consider any objection or submission received in respect of an application if no notice is required to be given under ss 52(1) or 57B of the P&E Act.

The essential element of which the Tribunal had to be satisfied was whether the Applicant had standing to bring the cancellation request. If it was found that MBC did not have standing, this would be a fatal flaw in the application and it would be bound to fail. The Tribunal had to decide whether MBC could be found to be one of the class of entities who may seek relief pursuant to s 87(3)(b) of the P&E Act. Necessarily, this rested on whether MBC could be properly characterised as ‘any person under s 89’ (per s87(3)(b)). Particularly, whether MBC could be properly characterised as a person ‘who objected or would have been entitled to object to the issue of a permit’.

President Quigley stated that the words in s 89 should not be read in isolation. In order to ascertain their intent and meaning, the words must be considered in relation to the legislation as a whole. Her Honour supported the findings of Justice Garde P in Colonial Range Pty Ltd v Minister for Planning [2015] VCAT 196, that the effect of the Act is that, in the case of applications exempt from third party review rights, third parties have no right to object. They may lodge submissions or make objections but they have no right to object or seek review of a decision to grant a permit as a result of any objection. As such, they cannot be said to be ‘entitled to object’.

It was found that MBC did not have standing to bring its application to cancel the permit. The Tribunal dismissed MBC’s cancellation application on the basis that it was misconceived.

3DickensStreetPtyLtdvBoroondaraCC(Costs)

[2020] VCAT 390

Senior Member Geoffrey Code considered two applications by 3 Dickens Street Pty Ltd, which was the successful applicant in an earlier section 77 application to review the refusal of the Boroondara City Council to grant a permit to develop the subject land for dwellings in an apartment building (‘the section 77 proceeding’). The first was an application for the responsible authority to pay the applicant’s costs for the preliminary hearing in 2017 and a practice day hearing in 2018, and the second was an application that the responsible authority reimburse its hearing fees in relation to the preliminary hearing. The Tribunal determined that none of the grounds relied upon by the applicant were met for either application, and both were refused.

In the section 77 proceeding, Council had refused to grant a permit on grounds that related to its assessment that the application had lost the benefit of transitional provisions in the Boroondara Planning Scheme and that, consequently, there was no discretion to grant a permit. The facts were that the permit applicant had varied the proposal description on the application form from ‘apartment building development’ by adding ‘and alteration of access to a Road Zone Category 1’ (at the request of the Council). This variation to the permit description was deemed by Council to be an amendment to the permit. At the preliminary hearing, the Tribunal determined that the amendment was not an amendment to the application for the purposes of section 50 the P&E Act and, consequently, the application had not lost the benefit of the transitional provisions.

In seeking an award for reimbursement of its costs incurred, the applicant relied on four grounds: vexatious conduct; relative strengths; failure to clarify requests for amendment; and failure to warn.

The Tribunal determined that none of the four grounds relied upon by the applicant had been met.

Boroondara City Council’s conduct was not found to be vexatious in the relevant sense.

Before the Council decided the application, the applicant put the Council on notice that the applicant’s amendment of the application was not an amendment for the purposes of section 50 of the PE Act. Despite this, the Council’s conduct was not found to be vexatious, nor were the Council’s grounds of refusal found to be of the requisite standard of “utterly hopeless”.

Their conduct at the practice day hearing was also not characterised as vexatious.

The applicant then submitted that the relative strengths of its claims supported a finding that it would be fair to make it an award for costs. The Tribunal found that this of itself was not enough to support a costs order. With respect to the strength of the Council’s claims, it could not be said that its claims “had no tenable basis in fact or law” as submitted by the applicant. The Tribunal confirmed that this is a high bar, which was not met by the applicant.

The applicant’s reliance on their third ground of ‘failure to clarify request for amendment’ was also not made out. There was no evidence that the responsible authority’s request to amend the permit application was deliberate or made for an ulterior purpose.

Lastly, the fourth ground of ‘failure to warn of the consequences of the amendment before requesting the amendment’ was not made out. The conduct of both parties was weighed together. It was found that the Council had no duty to alert or warn the applicant of the consequences of the amendments. Furthermore, the applicant’s representative gave very little consideration to the applicant’s request for amendment.

In considering whether to make an order to reimburse all or part of the applicant’s hearing fees, the Tribunal considered the nature of the proceeding; the responsible authority’s conduct; and the result of the proceeding.

In relation to the nature of the preliminary hearing held to determine questions of law, it was found that it was a benefit to both parties that those issues were determined outside of a final merits hearing. The conduct of the responsible authority before and during the proceeding was not found to support an order for reimbursement of hearing fees. With respect to the third ground, ‘result of the proceeding’, the Tribunal reaffirmed the position that success alone does not support an award of costs nor does it support an award for reimbursing hearing fees. The applicant was unsuccessful in making out any of their three grounds.

The applicant’s application for reimbursement of both costs and hearing fee reimbursement was refused.

Tess Kerridge is a Senior Associate at Holding Redlich in the Planning, Environment and Sustainability group, who specialises in planning, development and environmental law, compulsory acquisition, planning litigation and property matters. Tess has extensive experience in planning permit appeals and various environmental law appeals before the Victorian Civil and Administrative Tribunal as well as appeals to the Supreme Court. She can be contacted at tess.kerridge@holdingredlich.com