VCAT approves energy project (Dual Gas Pty Ltd v EPA)

In Dual Gas Pty Ltd & Ors v EPA (Red Dot) [2012] VCAT 308, the Tribunal has considered an application concerning new technology for the generation of electricity in the La Trobe Valley.

A number of different proceedings were heard and determined concurrently by the Tribunal.

In its reasons for decision the Tribunal considers the question of “standing” of environmental groups. Not all parties to the proceeding were granted standing.

Dual Gas Pty Ltd was an applicant in its own proceeding seeking to review conditions on an approval granted by the EPA. In its reasons for decision the Tribunal made the following comments

21. “We have come to a decision that the objectors’ applications for review fail. In particular, within the limited grounds of review available to them:

  • the objectors have failed to establish that the use of the works for the DGDP that are the subject of the EPA works approval will result in emissions that will be inconsistent with the SEPP(AQM). The DGDP complies with the requirement for ‘best practice’, and is not inconsistent with the aims, principles or intent of the SEPP(AQM);
  • by reference to the narrow interpretation of ‘interests’ in relevant case law, Mr Shield’s additional ground under s 33B(2)(a) is struck out.

22. We have also come to a decision that the Dual Gas application for review succeeds, but only in part. In particular:

  • the EPA has misapplied the principles of environmental protection and best practice under the SEPP(AQM) in seeking to halve the capacity of the DGDP. Although not leading to an inconsistency with the SEPP(AQM), a halving of capacity still leads to a material increase in GHG emissions;
  • in allowing a works approval for the DGDP with a capacity of 600 MWe, effect can be given to the principles of environmental protection under the SEPP(AQM) by imposing an additional condition that effectively prevents the DGDP from commencing until the retirement of an equivalent amount of higher GEI generation capacity in Victoria is secured. Although such a condition was opposed by Dual Gas, through the condition the DGDP will more demonstrably lead to a nett reduction in overall GHG emissions from electricity generation in Victoria, and more clearly facilitate the transition to a lower emissions energy sector.
  • although opposed by Dual Gas, a condition requiring the works to be designed to operate at a GEI of 0.8 t CO2-e/MWh should remain, with the GEI to be measured ‘as generated’;
  • although opposed by Dual Gas, the conditions for SO2 capture and noise attenuation should remain, subject to varied wording.

23. Although not determinative, the additional condition linking the DGDP approval to the retirement of an equivalent amount of higher GEI electricity generation also addresses many of the underlying concerns of objectors, save for those based on a philosophical opposition to the continued use of brown coal. Even if, contrary to our actual finding, we had found that the DGDP was inconsistent with the SEPP(AQM), we consider that inconsistency could have been resolved by still allowing the DGDP with a 600 MWe capacity with this condition

24. This summary of conclusions should not be considered a substitute for the more detailed findings and conclusions set out in these reasons.”

“Standing” considered by VCAT

In Turner v EPA [2012] VCAT 282, the Tribunal has struck out an application on the basis that the applicant lacked standing.

Ms Turner commenced a proceeding seeking to review a works approval granted by the Victorian Environment Protection Authority. The EPA applied to strike out the application on the basis that Ms Turner lacked standing.

In striking out Ms Turner’s application the Tribunal found

16. “Ms Kelly-Turner does not have a special interest. What constitutes ‘interests’ may be given a liberal interpretation but this does not mean that just any person may make an application there must be something special about the persons interests that sets them apart from the interests of any member of the general public who may be interested in or concerned about the subject matter.

17.As identified by Justice Osborn in Environment East Gippsland Inc v VicForests, on reviewing the authorities on standing and referring to comments made by Sackville J in North Coast Environment Council Inc v Minister for Resources saying:

[78] Sackville J undertook a survey of the development of the authorities on standing since the ACF Case and indentified a number of principles:

  • A plaintiff must demonstrate a ‘special interest’ in the subject matter of the action. A ‘mere intellectual or emotional concern’ for the preservation of the environment is not enough to constitute such an interest. The asserted interest ‘must go beyond that of members of the public in upholding the law … and must involve more than genuinely held convictions’.
  • An allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing.
  • The fact that a person may have commented on environmental aspects of a proposal as part of an environmental assessment process does not of itself confer standing to complain of a decision based on that process.”

Application to amend covenant dismissed

The Supreme Court of Victoria has dismissed an application to amend a restrictive covenant imposing a single dwelling condition in Grant & Anor v Preece [2012] VSC 55. The Plaintiff wished to build 2 dwellings.

The case involves a property in Ivanhoe East. In reasons for judgment dismissing the application Associate Justice Daly notes that the plaintiff in such an application under section 84(1) of the Property Law Act has the difficult task of proving a negative. After considering previous authorities the Court distills the following tests

(a) identification of the relevant “neighbourhood” for the purpose of determining whether changes to that neighbourhood have rendered the single dwelling restriction imposed by the covenant obsolete;

(b) having defined the neighbourhood, whether changes in the character of the neighbourhood have resulted in the prohibition of multiple dwelling development unenforceable or otherwise of no value, particularly in the context of the property having a wider than usual frontage;

(c) if the single dwelling covenant could not be held to be obsolete, whether the restriction imposed by the covenant impedes the reasonable use of the land without securing practical benefits to other persons;

(d) alternatively, whether modification of the covenant to allow the construction of two dwellings would substantially injure any person entitled to the benefit of the covenant; and

(e) if Mr and Mrs Grant establish an entitlement to relief under either s.84(1)(a) or 84(1) of the Act, whether there are any matters relevant to the Court’s discretion as to whether to make an order in the form sought.

Amendment of restrictive covenant in Ivanhoe East declined

The Supreme Court of Victoria has dismissed an application to amend a restrictive covenant imposing a single dwelling condition in Grant & Anor v Preece [2012] VSC 55. The Plaintiff wished two build 2 dwellings.

The case involves a property in Ivanhoe East. In reasons for judgment dismissing the application Associate Justice Daly notes that the plaintiff in such an application under section 84(1) of the Property Law Act has the difficult task of proving a negative. After considering previous authorities the Court distills the following tests

(a) identification of the relevant “neighbourhood” for the purpose of determining whether changes to that neighbourhood have rendered the single dwelling restriction imposed by the covenant obsolete;

(b) having defined the neighbourhood, whether changes in the character of the neighbourhood have resulted in the prohibition of multiple dwelling development unenforceable or otherwise of no value, particularly in the context of the property having a wider than usual frontage;

(c) if the single dwelling covenant could not be held to be obsolete, whether the restriction imposed by the covenant impedes the reasonable use of the land without securing practical benefits to other persons;

(d) alternatively, whether modification of the covenant to allow the construction of two dwellings would substantially injure any person entitled to the benefit of the covenant; and

(e) if Mr and Mrs Grant establish an entitlement to relief under either s.84(1)(a) or 84(1) of the Act, whether there are any matters relevant to the Court’s discretion as to whether to make an order in the form sought.

VCAT considers “heritage” condition on permit

In 70 Nicholson Street Pty Ltd v Yarra CC [2012] VCAT 232 the Tribunal has decided a case in which orders were sought to amend a permit condition agreed by the parties at mediation.

The case is interesting on two fronts.

First, the case explores events that occurred at a mediation. As practitioners are aware it is rare that this occurs.

Second, the case is interesting because it discusses the heritage value of building facades which have been altered over time.

Read the case here.