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.

VCAT’s power to amend a permit granted by consent.

I have previously written on section 87A of the Planning and Environment Act which allows the Tribunal to amend a permit granted by the Tribunal.

In Exploration Lane Developments Pty Ltd v Melbourne CC [2012] VCAT 152, the Tribunal has used this power to allow amendments to plans to increase the height of a building by 9 storeys.

The case is interesting because it involves a permit issued by the Tribunal as a consequence of an application for a consent order by the parties. Council argued that these circumstances made it inappropriate for the use of section 87A. The Tribunal said

  • As to background this hearing, the first Tribunal decision about this matter, was based on an application for a consent order.  There was no mediation before the Tribunal and no hearing at which the Tribunal considered the proposal’s merits.  
  • The consent order did not involve any concessions by the permit applicant in relation to the building’s height as indicated on the drawings that Council had considered. 
  • Section 87A of the Planning & Environment Act 1987 provides a wide discretion to the Tribunal, stating that the Tribunal may amend a permit issued at its direction if the Tribunal considers that “it is appropriate to do so”.  The Act does not specify any relevant considerations.  It now appears to be widely accepted that the scope of the Tribunal’s consideration should be limited to the effect of the amendment as it would vary the approved development, rather than undertaking a review of the amended proposal de novo.

Ancillary Use – The Tests discussed

In Tamarix Pty Ltd v Greater City of Dandenong CC & Anor [2011] VCAT 2182, the Tribunal has considered the concept of ancillary use.

The case involved an egg farm  which operated pursuant to a number of planning permits issued over the years. One of the permits contained the following condition:

“retail sales must not be conducted from the land, other than the sale of eggs produced on the land”

The Applicant sought an amendment to the relevant permit or alternatively a declaration  that the sale of a range of egg-farm related products, including manure, meat and feed, were ancillary to the use of the land as an egg farm.

In its decision confirming that the proposed use was ancillary the Tribunal applied  the following concepts distilled from the case Alphonso v  Casey CC [2006] VCAT 595

    • Ancillary activities are correctly regarded as part of the primary use.
    • It is not particularly relevant whether the ancillary activities are similar or quite distinct from the primary use.
    •  Ancillary activities must be an adjunct , but not a necessary adjunct to the primary use. The ancillary activities can be “optional extras”.
    • The planning merits of the activities [whether a permit would be granted for then if they were a separate use] are not relevant in determining whether the activities are a separate use or  not.
    • A preference or desire for the Responsible Authority to control or restrict activities is not relevant to the assessment.

The Tribunal considered the Responsible Authority’s concern that the sale of egg farm related products would entrench retail sales into a Green Wedge Zone as an irrelevant consideration to the determination of whether the proposed uses were ancillary to the primary use of the land. The Tribunal was of the view that this could become an issue if the activities could be separately undertaken in the zone or grew to such a size that they could be considered a separate use.

As discussed on other postings each case will turn on its own facts. In this proceeding the Tribunal appears to consider the small volume of the extra sales to be a a relevant factor in making a decision in favour of the applicant.

Proportionate Liability – Wheelahan v City of Casey & Ors

In the long running matter of Wheelahan v City of Casey & Ors, the Supreme Court of Victoria has recently upheld an application by the Victorian Environment Protection Authority. In the ruling, the Supreme Court has accepted submissions by the EPA, which is a defendant in the proceeding, that another defendant Peet should amend its counterclaim if it wishes to seek contribution from the EPA under the concept of proportionate liability. In summary, the Court has upheld the EPA’s submission that the EPA is entitled to know the case it must meet from an alleged concurrent wrongdoer through an amended pleading. The Court outlined the following principles with regards to proportionate liability pursuant to the Wrongs Act 1958:

“22 I accept that, from a procedural point of view, the effect of the pivotal provisions of pt IVAA are as follows:

  • Section 24AH provides that, for the purposes of pt IVAA, a concurrent wrongdoer in relation to a claim is a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.
  • Section 24AI provides that the liability of a concurrent wrongdoer who is a defendant in a proceeding is limited to the proportion of the claim which the court determines to be just having regard to the extent of the concurrent wrongdoer’s responsibility for the loss and damage suffered.
  • Section 24AJ provides that, despite anything to the contrary in pt IV of the Act, a defendant against whom judgment is given under pt IVAA as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim, and cannot be required to indemnify any such wrongdoer.”

A copy of the ruling can be read here.

Intensification of Use – update on Amendments to Planning Permits

I have previously posted on the issue of amendments to permits. I have recently come across the case of Groenan v Casey CC [2011] VCAT 1822, which contains a discussion regarding the issue of retrospective planning permit applications and intensification of use. Although the case relates to animal husbandry, the concepts discussed in the case are of wider application.

A retrospective planning permit application is one that is made when a “use” has commenced or has been intensified without the appropriate permission.

In this proceeding the Applicants were seeking to amend their planning permit to intensify the animal husbandry occurring on the site. The Applicants had a planning permit to keep 30 dogs on the subject site and were seeking to increase this to 50. The increase in the number of dogs also required building works.

Council refused the application on grounds which included the failure to provide adequate information to accompany the application. The Tribunal made the following finding on this point:

I consider that under normal circumstances the lack of information submitted with the application would be sufficient reason to disallow the application for amending the permit, particularly if the level of policy support for the use of dog breeding/boarding was not strong for this location. However, I note that Council has erected roadside signs stating that this area is identified as an intensive use area for dog breeding. It can be seen therefore that the area is already devoted very largely to dog breeding /boarding and this is likely to continue and expand in the future. Accordingly, I am not persuaded to disallow the application on the basis of a lack of information in this instance. [16]

In its reasons the Tribunal also considers the issues that arise with intensification of animal husbandry including, waste management, water management, noise and shelter. The Tribunal also discusses the Code of Practice for the Operation of Breeding and Rearing Establishments. Ultimately, the Tribunal finds that the intensification will not result in unacceptable outcomes and that the amendment to the planning permit is appropriate.

However, readers should note the warning that appears at the end of the Tribunal’s reasons with respect to the issue of retrospective planning permit applications.

I also want to make it clear to the landowners that it is noted that this is the second time the matter of dog breeding activity on this site has come before the Tribunal seeking retrospective approval for use and development that has already occurred and commenced. This is not appropriate and the landowners should take note that undertaking changes to the approved use and development without first seeking appropriate approvals from Council is unlawful. I strongly advise the landowners to ensure that they make the necessary enquiries with Council before they make any further changes to how their dog breeding business operates in the future. [28]

Be aware. You should always check carefully that you are complying with the conditions contained in a planning permit. If in doubt seek advice. Retrospective applications are inherently risky as they could result in a refusal or alternatively conditions that are costly to comply with. Further, Councils could also commence enforcement applications.