VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P700/2023

CATCHWORDS	
Application for enforcement order – request for referral question of law – section 96 Victorian Civil and Administrative Tribunal Act 1998 (Vic) – threshold issue – preliminary hearing – fairness – presiding member	

Applicant	Melissa Ware	

Responsible Authority	Glenelg Shire Council	
Respondent	Pacific Hydro Portland Wind Farm Pty Ltd	
Affected Person	Minister for Planning	
SUBJECT LAND	Land generally in the vicinity of
CAPE BRIDGEWATER  VIC  3305	
hearing type	Practice Day Hearing	
date of hearing	7 May 2024	
DATE OF ORDER	16 May 2024	
citation	Ware v Glenelg SC [2024] VCAT 460	

Order
1	The details set out in the Tribunal’s initiating order are changed.
2	This application is listed for a preliminary hearing and a hearing as detailed below.
The preliminary hearing will be at 55 King Street, Melbourne but conducted online.
If there is any change to these details, the Tribunal will notify you.
Preliminary Hearing:	
Date and time	15 July 2024
10:00 am – 4:30 pm	

Conduct	Online Platform	
The details of the online platform will be provided to the parties before the hearing.
Hearing:	
Date and time	28, 29, 30 & 31 January 2025 and 3, 4, 5 & 6 February 2025
10:00 am – 4:30 pm	

Conduct	In Person - 55 King Street, Melbourne	

Preliminary hearing
3	The purpose of the preliminary hearing is for the Tribunal to consider the following question identified by the parties:
On the proper construction of condition 13 of the Incorporated Document referred to as the Portland Wind Energy Project: Cape Bridgewater Wind Energy Facility, Cape Nelson Wind Energy Facility, Cape Sir William Grant Wind Energy Facility Incorporated Document Glenelg Planning Scheme, April 2003:
Can the Tribunal determine that there has been a breach, or ongoing breach, of condition 13 of the Incorporated Document in circumstances where the Minister for Planning made a decision on 24 February 2024 that, for the purposes of condition 13 of the Incorporated Document, she is satisfied that the Wind Farm complies with the New Zealand Standard Acoustics - The assessment and measurement of sound from wind turbine generators (NZ6808:1998)?
Notice of application for enforcement order
4	By 20 May 2024 the Applicant must give the following documents to the owners and the occupiers of the land described in Appendix 1 (under the heading Cape Bridgewater) of the Portland Wind Energy Project: Cape Bridgewater Wind Energy Facility, Cape Nelson Wind Energy Facility, Cape Sir William Grant Wind Energy Facility Incorporated Document Glenelg Planning Scheme, April 2003:
a	a copy of the Further Amended Application filed with the Tribunal dated 5 October 2023 and all attachments;
b	a copy of this Order; and
c	a blank Statement of Grounds by a respondent - enforcement form (available at https://www.vcat.vic.gov.au/sites/default/files/2020-07/statement-of-grounds-form-enforcement-respondent.pdf); and
d	a letter which must:
i	explain that an application for enforcement order has been lodged and the Tribunal requires the documents to be given to the owners and the occupiers of the land that is the subject of the application;
ii	explain that if those persons wish to object to the making of the enforcement order, they must lodge a statement of grounds detailing their objection with the Tribunal by 11 June 2024 and if no statement of grounds is received by the Tribunal by that date, the Tribunal may make an enforcement order that adversely affects their interests without hearing from those persons; and
iii	specify the dates and times of the hearing contained in Order 1.
5	By 25 May 2024 the Applicant must give to the Tribunal:
a	a completed statement of service; and
b	a list of names and addresses of all persons and authorities to whom the documents were given; and
c	a sample of the letter sent with the documents.
6	If a statement of service is not given to the Tribunal by 25 May 2024, this application may be struck out without further notice. No reminder will be sent.
Filing of submissions for the preliminary hearing
7	By no later than 4:00pm on 24 May 2024, the Respondent must:
a	file with the Tribunal and serve on all parties an electronic copy of its submissions and list of authorities; and
b	serve on all parties an electronic copy of all documents it seeks to rely upon at the hearing, including any authorities-
in respect of the identified purpose of the preliminary hearing.
8	By no later than 4:00pm on 14 June 2024, each other party must:
a	file with the Tribunal and serve on all other parties an electronic copy of its submissions and lists of authorities;
b	serve on all parties an electronic copy of all documents it seeks to rely upon at the hearing, including any authorities (other than documents served by the Respondent);
in respect of the identified purpose of the preliminary hearing.
9	By no later than 4:00pm on 28 June 2024, each party:
i	may file with the Tribunal and serve on all parties an electronic copy of any reply submissions and an updated list of authorities; and
ii	must serve on all parties an electronic copy of any additional documents it seeks to rely upon at the hearing, including any authorities.
All copies of submissions and lists of authorities for filing with the Tribunal must be sent to admin@vcat.vic.gov.au
Tribunal Book (preliminary hearing)
10		By no later than 4:00pm on 5 July 2024, the Respondent must provide to the Tribunal and to all other parties an electronic copy of the Tribunal Book. The Tribunal book must comprise a combined pdf, bookmarked, paginated and hyperlinked and must contain:
a	Copies of all submissions;
b	Copies of the documents that each party seeks to rely upon; and
c	A book of authorities (which may be provided in a separate volume).
The copy of the Tribunal Book for the Tribunal must be sent to admin@vcat.vic.gov.au
Hearing fees
11	If you are the applicant in this proceeding, you may be required to pay a daily hearing fee before the hearing commences. For more information, see the VCAT website www.vcat.vic.gov.au/fees
Reply to order for production of documents
12	The Tribunal’s determination of the applicant’s request for the production of documents is reserved.  
13	Leave is granted to the respondent to respond to draft order 4 sought by the applicant dated 29 April 2024 in respect of the production of documents.  Any response must be provided to the Tribunal and parties by 21 May 2024.
Further procedural orders
14	Following the determination of the preliminary question identified in Order 3 the Tribunal will consider whether to vacate the listed hearing, or to direct parties to provide draft procedural orders leading to the main hearing.  
15	Any party who seeks any further procedural orders in this proceeding must submit a request in writing to the Tribunal and provide a copy to the other parties at the same time.  

Dalia Cook
Member

Appearances
For applicant	Dominica Tannock, solicitor, DST Legal	
For responsible authority	Matthew Berry, town planner	
For respondent	Barnaby Chessell SC with Sean McArdle of Counsel instructed by Minter Ellison	
For affected person	Juliet Forsyth SC with Alexandra Guild of Counsel, instructed by the Victorian Government Solicitors Office	

reasons
Introduction
1	Melissa Ware (‘the applicant’) is a resident who owns a dwelling near a wind energy facility approved by Incorporated Document in the Glenelg Planning Scheme as referred to in this order above (‘the Incorporated Document’).  
2	The applicant claims that the facility contravenes condition 13 of the Incorporated Document under which it was approved.  She has lodged an application for enforcement order seeking the use of the land as a wind energy facility to cease. 
3	In summary, the Incorporated Document requires compliance with a nominated noise standard (NZ6808:1998) in respect of existing residences, to the satisfaction of the Minister for Planning (‘Minister’). 
4	The Minister signed a ministerial brief on 24 February 2024, determining that the relevant noise standard in condition 13 was met to her satisfaction. 
5	The applicant expressed disapproval of this decision, including the Minister’s preference for the operator’s expert evidence over evidence for Glenelg Shire Council (‘Council’) in respect of compliance with the relevant standard.  
6	However, there is no proceeding before the Tribunal or in any other forum of which I am aware which seeks view of the Minister’s determination. 
7	In response to my questions about the nature of the alleged contraventions underpinning the application for enforcement order, the applicant alleges that the noise standard has not been met over time, and continues to be exceeded.  At the first practice day hearing, her representative explained that she moved out of her dwelling because of noise impacts and other disturbance.  
8	These reasons consider a request to the Tribunal by the respondent wind farm operator to refer of a question of law to the Victorian Court of Appeal pursuant to section 96 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic.) (‘VCAT Act’).  
9	Alternatively, it seeks a preliminary hearing before a presidential member of the Tribunal as to whether there can be non-compliance with condition 13 of the Incorporated Document in circumstances where the Minister has indicated her satisfaction with compliance with the relevant acoustic standard.  
10	I have considered draft orders filed by the parties in accordance with Tribunal directions, including accompanying submissions and case references.  
11	I have also heard the applicant’s request for the production of information from the respondent.  I have reserved my decision on this request under section 80 of the VCAT Act to enable the respondent to reply to the updated request for information (taking the form of a draft order circulated in advance of this practice day hearing).  
12	For the record, I do not accept submissions from the applicant that there is any debate about the status of the Minister versus the Council in the current proceeding.  
13	Instead, I accept submissions for the other parties that Council is the ‘responsible authority’ under the Planning and Environment Act 1987 (Vic) (‘PE Act’) for administering the Incorporated Document, but that the satisfaction of the Minister for Planning has particular status under condition 13 of that document. Accordingly, the Tribunal has previously joined the Minister to this proceeding as an ‘affected person’.  
Tribunal consideration
Request for referral to Supreme Court
14	The respondent requested this division of the Tribunal to refer a question of law in the current proceeding to the Court of Appeal of the Victorian Supreme Court (‘Court’).  
Relevant context
15	Condition 13 of the Incorporated Document provides: 

16	The case of Uren v Bald Hills Wind Farm Pty Ltd (‘Uren’) involved a claim of nuisance.  Justice Richards held in respect of an acoustic condition of a permit worded in similar terms: 
It follows that the Minister’s letter of 23 March 2019 is no more than an expression of his opinion, in his capacity as the responsible authority, that the wind farm was at that time demonstrating compliance with condition 19 of the permit.  Because he considered the wind farm to be compliant at that time, there was no occasion for the Minister to consider taking the steps set out in condition 22 or any enforcement action under Pt 6 of the Planning Act.  Contrary to the submission of Bald Hills, the letter does not communicate any decision of the Minister, and has no legal effect.  Nor was it a declaration of future compliance with the noise conditions in the permit.
The question of whether the sound from the wind farm received on the plaintiffs’ land complied with the noise conditions in the permit at relevant times is to be determined on the evidence in this proceeding.  It is not determined by the Minister’s letter of 23 March 2019. 
17	The applicant submitted that the reasoning of the Court in Uren is binding on the Tribunal in the current proceeding, such that the Minister’s satisfaction is not determinative of whether the relevant acoustic standard is or has been complied with.  
18	She considered the Tribunal was obliged to make its own independent and objective findings regarding compliance with the relevant standard to determine whether condition 13 had been complied with.  
19	The applicant also expressed frustration that this request (in respect of the question of law) had not been considered and determined earlier in the proceeding because she considered she will have ‘relied on Uren to her detriment’ and it was too late for her to seek review of the Minister’s decision/satisfaction.  
20	The respondent explained that, from its perspective, it was only when the applicant amended her application for enforcement order towards the end of last year that she raised the issue of the ‘proper construction’ of condition 13 in this light.  
21	The respondent took issue with the applicant’s construction of condition 13, and considered that the relevant obligation is/was for the Minister to be satisfied of compliance.  
22	In summary, the respondent submitted that Uren was incorrectly decided on this point, and that the Court had failed to properly consider the status of the Minister’s decision under the regime established by the PE Act as a whole.  
Legislative power and prescient case law
23	The power to refer a question of law to the Supreme Court or Court of Appeal arises under section 96 of the VCAT Act which provides: 
96	Referral of questions of law to Court
(1)	The Tribunal, with the consent of the President, may refer any question of law arising in a proceeding to the Trial Division of the Supreme Court or the Court of Appeal for decision.
(2)	A referral may be made under subsection (1) on the application of a party or on the Tribunal's own initiative.
(3)	If a question of law has been referred to the Trial Division or the Court of Appeal, the Tribunal must not—
(a)	make a determination to which the question is relevant while the referral is pending; or
(b)	proceed in a manner or make a determination that is inconsistent with the opinion of the Trial Division or Court of Appeal on the question.
24	In practise, the question of law would be formally articulated through a referral process including input from the President (if agreed), but would generally pertain to the effect of the Minister’s satisfaction on establishing compliance with the relevant acoustic requirement specified in the condition of the Incorporated Document.  
25	The Court also has the power to decline a reference to it.  
Summary of party positions
26	Both the respondent and the Minister expressly acknowledged that the Tribunal has the discretion as to whether to refer (or presumably, to decline to refer) a question of law to the Court under section 96.  
27	The respondent submitted that referral to the Court was appropriate in circumstances where determination of the question in its favour would determine the outcome of the proceeding, necessarily resulting in its dismissal.  
28	It also considered that the proper construction of condition 13 is of importance to the current proceeding and ‘Victorian statutory planning more broadly’ because of the regular imposition of conditions ‘to the satisfaction’ of a particular authority.  
29	The respondent further sought to persuade me that there was a serious question to be tried in respect of the correctness of the Court’s decision in Uren, submitting that:
…the potentially binding (or alternatively, influential) nature of Uren is a factor which favours referral to the Court of Appeal to avoid the high likelihood of a series of appeals, in circumstances where the Respondent submits that material aspects of Uren were wrongly decided.
30	The Minister has not formed a concluded position about the accuracy or binding nature of Uren as yet, but accepted that the respondent raised a ‘real question’ about the construction of condition 13. 
31	She therefore supported the referral to the Court, but submitted it should be made to its Trial Division to enable relevant questions of fact to be considered and determined.  
32	The Minister considered there would be ‘substantial efficiencies’ arising from a referral to the Court since it would ‘likely obviate the need for multiple hearings’. She also considered the determination was likely to have broader implications than for this individual proceeding, although it was conceded that its importance to the parties or the public may not be as great as implied by the respondent. 
33	At the same time, counsel for the Minister acknowledged there is a ‘relatively high bar to jump’ to justify a referral; it will only be appropriate to undertake referral in a ‘rare case’ before having heard the evidence and making findings of fact and it is generally preferable for the Tribunal to decide all cases of fact and law in the proceeding before it.  
34	Council did not support the referral of a question to the Court, explaining that it is a small rural council that lacks the resources to properly participate in a Supreme Court proceeding of this nature through legal representation.  
35	The applicant submitted that ‘in all the circumstances, it would be a profound injustice to her if the Tribunal were to refer the respondent’s legal question to the Court [of Appeal] at this stage of the proceeding’. 
36	The applicant was particularly concerned that the application for enforcement order may be finally disposed of following such determination.  In her view, she may then be denied the opportunity for the Tribunal to independently assess whether the facility complied with the relevant acoustic standard at all times, and to hear evidence about the impacts of the operation of the wind farm on her amenity.  
37	By contrast, she submitted there would be no injustice to the respondent, which could appeal the Tribunal’s decision on a question of law if needed. 
Tribunal consideration
38	I have considered relevant case law principles referred to by the parties pertaining to the power to refer a question to the Court.  
39	Having considered all submissions made by parties, I am not persuaded that it is appropriate to refer the question framed by the respondent to the Court, let alone to the Court of Appeal specifically.  
40	In arriving at this conclusion, I am particularly influenced by: 
a.	the lack of any demonstrated broader public interest in having this question determined by the Court.  One consideration is that although it is true that many conditions of planning approvals require something to be done to the satisfaction of an authority, there are powers in the PE Act enabling the Tribunal to review  such satisfaction to be reviewed on an application by a proper person; 
b.	the fact there is no conflict in relevant case authority requiring conclusive judicial resolution;
c.	the absence of any broader benefit to the ongoing or proper operation of the Tribunal’s work – this being a confined question that has not proven to be an obstacle in determining matters finally to date; 
d.	the likely expense and delay that may be associated with such a referral and the potential fragmentation of the proceeding, especially in circumstances where the Tribunal is equipped to consider and determine the question identified for the reasons below; 
e.	the potential challenges associated with referring this question to the Court in the absence of relevant factual matters being determined by the Tribunal as may be necessary at first instance, as emphasised in Chopra v Department of Education and Training; 
f.	the availability of another option, highlighted by the role of the Tribunal as an expert tribunal including legally qualified and experienced members with the ability to determine the question of law identified, particularly since it relates to the construction of a condition within a document granting planning permission which is well within the capacity of the Planning and Environment Division to decide.  The Tribunal has availability for such a listing within an appropriate timeframe, in mid July 2024;
g.	the ability of parties to make submissions that either seek to apply or distinguish the reasoning of Uren on the facts of this particular case and for the Tribunal to assess and determine the extent to which it is bound to apply its findings in this proceeding; 
h.	the availability of an appeal to the Court on a question of law if required, which was considered to militate strongly in favour of a refusal to refer a question in Bogan v The Estate of Peter John Smedley (Deceased) (No 3); and
i.	the lack of support by Council and the applicant for this question being referred to the Court. 
41	I accept that in some instances, it may be desirable for a party anticipating an appeal on a question of law to effectively pre-empt this, and to seek a referral directly to the Court.  The respondent suggests this would facilitate the ‘most effective’ resolution of the question in the current proceeding.  
42	However, I do not consider this would justify the appropriate use of the power to refer on the facts of the current case, especially in light of the matters I have considered above that weigh against such a referral being made.  
43	Likewise, there is no certainty that one party or another would lodge an appeal with the Court following a determination by the Tribunal in the current proceeding.  A vitiating error of law would need to be identified, and there are other practical considerations that may legitimately inform whether a party elects to challenge the Tribunal’s decision. 
Request for preliminary hearing 
44	In the alternative, the respondent sought a preliminary hearing before the Tribunal to determine the question identified.  
45	The Minster supported this approach if the Tribunal was to decline the request to refer a question to the Court.  
46	The applicant resisted this request. She submitted it would be inappropriate for the Tribunal to ‘determine the substantive question of law that arises in this proceeding for final determination’ by way of a preliminary hearing.  
47	She also denied there is a ‘special question of law’ to be determined in the proceeding, and expressed the view that the ratio decidendi of Uren is binding on the Tribunal.  
48	I am conscious of the need to carefully consider whether the proceeding is a suitable candidate for a preliminary hearing, especially in circumstances where the answer to the question may lead to final orders being made.  I have considered the factors in Murphy v State of Victoria & Anor in my analysis of the appropriateness of this course of action below.  
49	I consider that there is a legitimate threshold issue in this proceeding.  In summary, it is: 
a.	whether a third party can seek to demonstrate non-compliance with the acoustic standard applied by condition 13 irrespective of the Minister’s satisfaction at a particular point in time; or 
b.	whether the Minister’s satisfaction that compliance with the acoustic standard has been achieved is conclusive of compliance with condition 13, at least at that point in time or potentially on an ongoing basis.  
50	The applicant’s grounds for the application expressly raise the issue of the ‘proper construction’ of the obligation in condition 13.  
51	Therefore, the question framed by the respondent goes to the substantive issue for determination of the proceeding.
52	If the Tribunal was to answer the respondent’s question affirmatively (i.e. that there is capacity for non-compliance notwithstanding Ministerial satisfaction), the applicant could progress to a main hearing to present its case on the merits and may elect to call independent evidence to demonstrate objective non-compliance with the acoustic standard. 
53	However, if the Tribunal was to conclude that Ministerial satisfaction is conclusive proof of compliance with condition 13, there is arguably no scope for the Tribunal to independently assess compliance with the acoustic standard, and no case to answer in the enforcement proceeding.  
54	This is despite the applicant’s clear request for the Tribunal to ‘scrutinise’ the respondent’s conduct, ‘test its evidence’ (if any) and to listen to her ‘lived experience’ and proposed remedy.  
55	To the extent the applicant alleges ‘conscious wrongdoing’ by the respondent and/or the Minister, it is difficult to see how this is relevant in the current enforcement proceeding where there is no platform to review the Minister’s determination.  
56	In the latter scenario, it may be appropriate for the Tribunal to summarily dismiss the application as a whole.  
57	This is precisely why such a threshold question that is capable of being determined independently of the merits should be considered at a preliminary hearing.  In my view, it is consistent with the Tribunal’s obligation under section 98(1)(d) of the VCAT Act to ‘conduct each proceeding with as little formality and technicality, and [to] determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit’.
58	I am also conscious that the answer to this question, unlike others sometimes posed as preliminary questions in Tribunal proceedings, will not depend on acoustic or other evidence as to amenity being called.  
59	It can therefore be considered separately during the course of a one day hearing before a Deputy President of the Planning and Environment Division as proposed. 
60	In my view, it is appropriate to consider and determine this threshold issue before the matter proceeds to an eight day contested hearing (as requested by parties), most likely before two members (one with planning expertise and the other with acoustic expertise). 
61	Both the respondent and the Minister agreed to the form of wording for the Tribunal to consider in a preliminary hearing, if listed.  
62	In response to my questions, Ms Tannock for the applicant conceded that the question posed to the Tribunal by the other parties would encompass the fundamental question of interest to the applicant, which is whether the decision of Uren is binding on the Tribunal in the current proceeding.  
63	I accept that a decision on this threshold question is likely to be determined in light of established principles of administrative law and statutory interpretation, informed by the reasoning of the Court in Uren to the extent applicable.  
64	However, it is yet to be determined whether its reasoning is binding on the Tribunal in the current proceeding, mainly since it is unclear whether the facts of the current proceeding are directly comparable.  
65	In these circumstances, I have listed this proceeding for a preliminary hearing and a substantive hearing (effectively in reserve).  Remaining procedural dates will be considered by the Tribunal following a determination of the preliminary question. 
66	As to main hearing dates, all parties were tentatively available for a hearing from 25 January 2025 (but not for earlier dates offered by the Tribunal), although this was not preferred by counsel for the Minister or respondent given the proximity to the summer break.  It is not unreasonable to list a matter of this type at this time of year with significant advance notice, noting the Tribunal's duty to act as efficiently as fair process allows.  
Request for a presidential member to preside 
67	The applicant requested the President of the Tribunal preside over the final hearing (if and when fixed).  
68	She considered this was appropriate to facilitate a fair hearing, especially given the perceived imbalance of power in the proceeding and the significance of the issues.  
69	Instead, the respondent had a preference for a presidential member (namely the President or a Vice President) to preside over the preliminary hearing (if not referred to the Supreme Court), but did not express a view about the main hearing (if required). 
70	The Minister did not support this request, and deferred to the conventional practises of the Planning and Environment Division to allocate appropriately qualified and experienced member/s, including a legal practitioner who would ordinarily hear and determine applications for enforcement order. 
71	As I explained, aside from this request being premature, this division of the Tribunal commonly hears cases with substantial complexity and the potential for significant effects on parties.  
72	In this instance, it would be expected that the Tribunal would be comprised to include a member with engineering or acoustic expertise to contribute additional rigour to the decision making exercise.   
73	It is not uncommon for parties to have differing resources or experience, yet all are afforded an equal right to be heard by the way Tribunal members conduct the proceeding.  I would expect no less in the current proceeding. 
74	Likewise, legal members of the Tribunal are able to assess the extent to which cases of higher authorities referred to by parties may be binding upon it on the facts of a particular case.  
75	The fact such analysis may be required does not necessarily justify a hearing before the President, neither does a preference to orchestrate a potential appeal to the Court of Appeal, as opposed to the Trial Division at first instance. 
76	It can be anticipated that the Deputy President of the Division would exercise her delegated authority under the VCAT Act to allocate a member/s to the main hearing in the ordinary way if one is required.  
Conclusion 
77	For the reasons above, I do not support the referral of a question of law to the Supreme Court in the current proceeding. 
78	Instead, I have listed the proceeding for a preliminary hearing before a Deputy President in terms framed (or at least not opposed) by the parties. 
79	I will make subsequent orders in respect of the production of documents sought from the respondent in due course.  
80	However, I note this may be premature prior to determining the preliminary question since the documents are generally sought to enable the applicant’s legal/expert team to interrogate the facility’s compliance with the relevant acoustic standard at relevant points in time. 

Dalia Cook
Member