VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
vcat reference No. P11104/2021
LICENCE Applciation No. LH1591377/1597826

planning and environment List

catchwords
Application for review under section 83(1)(a) of the Water Act 1989.  Licence sought for dam on waterway.  Applicant seeking to amend proposal.  Whether amendment should be allowed or the application be withdrawn or proceeding struck out for want of prosecution 
		
APPLICANT	Anthony Kelly	
Decision maker	Southern Rural Water - Maffra	
Referral AuthoritY	Department of Environment, Land, Water, & Planning	
Hearing	Practice Day Hearing	
Date of Hearing	9 December 2021	
Date of Order	10 Decembe 2021	
Citation	Kelly v Southern Rural Water [2021] VCAT 1497	
Joining of referral authority
1	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 the Department of Environment, Land, Water and Planning is joined as a party (referral authority) to proceeding P11104/2021.
Administrative mention
2	The proceeding is listed for administrative mention on 16 December 2021. On or before that date Mr Kelly must advise the Tribunal and the other parties in writing:
•	whether he will withdraw the application for review under section 74 of the Victorian Civil and Administrative Tribunal Act 1998, or
•	seek a practice day hearing to contest an order of the Tribunal to strike the proceeding out for want of prosecution under section 76 of the Victorian Civil and Administrative Tribunal Act 1998. 
•	If seeking to contest a strike out, on what grounds he rely on.
3	Southern Rural Water and the Department of Environment, Land, Water, & Planning have leave of the Tribunal to respond in writing to the administrative mention response filed by Mr Kelly.  Their written responses must be received by no later than 22 December 2021.  

Ian Potts
Senior Member			
Appearances
For the Anthony Kelly	Mr Colin Findlay of CAF Consulting Services with Mr Anthony Kelly in person.	
For the Souhern Rural Water	Mr Trevor McDevitt, Manager Applications, Southern Rural Water.	
For the Department of Environment, Land, Water and Planning	Mr Geoff Brooks, Program Manager Planning and Approvals	

Reasons
1	The purposes of the practice day conducted on 9 December 2021 (December hearing) were set out in my order of 7 September 2021 (September order).  That order followed the conduct of practice day hearing on 3 September 2021 (September hearing).  The September hearing was to deal with an adjournment request made by Mr Kelly.  Remarks set out in the September order explain the circumstances of this application, the adjournment request and why the December hearing was listed.  I rely on those remarks as background to this order.  
2	The purposes of the December hearing included amongst other matters:
•	To hear from Mr Kelly about whether the proposed dam the subject of the licence application to Southern Rural Water and now the review application required the completion of a Cultural Heritage Management Plan (CHMP) under the Aboriginal Heritage Act 2006 and associated regulations.
•	To consider the statement of contentions provided by parties in the proceeding and make orders about the future conduct of the proceeding.
3	Southern Rural Water and the Department of Environment, Land, Water and Planning (Department) filed contentions in response to the September order.  
4	Mr Kelly filed a three page email that sets out that in response to advice about Aboriginal cultural heritage he is now electing to pursue what is variously described as ‘an amended proposal’, ‘revised amended proposal’ or ‘new proposal’.  The email provides an overview of how Mr Kelly now proposes to construct a ‘smaller scale gully dam’ within the waterway to divert water to an off-stream storage of 400ML capacity.  Various reasons of merit are set out in the email to support the ‘amended proposal’.  
5	The email goes on to set out how Mr Kelly would like to seek the views of the Southern Rural Water, the Department, and another authority about this proposal before the December hearing.  No written responses were made in respect to this request.
6	In the hearing I invited a response from Southern Rural Water and the Department.  The Department stated, correctly in my view, that its role was to assist Southern Rural Water and now the Tribunal on review, by providing advice in its areas of expertise and responsibility, being biodiversity impacts.  Mr Brookes advised that the Department had commenced reviewing a biodiversity impact assessment commissioned by Mr Kelly for the original proposal that is the subject of the review application.  Its position was neutral in response to the amended proposal.
7	Southern Rural Water considers Mr Kelly’s ‘amended proposal’ to be a fresh application.  If this proposal was before it as the original decision maker, Mr McDevitt explained that Southern Rural Water would require withdrawal of the original application and to start a new application afresh. This would involve new application material, payment of fees, giving of notice, a new assessment by Southern Rural Water and a new decision.  Mr McDevitt also outlined that some of the original issues of merit would be required to be dealt with under this application, but nevertheless it was, in the authority’s view, a fresh application.   
8	I set out in the hearing that as a preliminary position, I agree with Southern Rural Water’s position and that the future conduct of the proceeding before the Tribunal is therefore in serious question.  I gave reasons for this and I now set out these for the record.  
9	The first matter of concern about Mr Kelly’s proposal is the role of the Tribunal.  I explained and repeat here that in its review role the Tribunal has two functions. One is to conduct a fair, efficient and expeditious conduct of proceedings to bring resolutions to dispute. To do so VCAT has in place necessary processes developed under in accordance with powers under the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) and enabling enactments.  The other role is to make the correct and preferable decision about the application on the merits of a case while standing in the shoes of the original decision maker.  
10	In this proceeding:
•	The Tribunal is engaged through a review process set out under the Water Act 1989 (Water Act) in conjunction with powers under the VCAT Act.   Neither of these acts provides an explicit pathway for the amendment of an application for a works licence at first instance when the application is before Southern Rural Water, or on review before VCAT.
•	The decision of DP Bisucci in Rubicon Station Pty Ltd v Goulburn Murray Water (Rubicon) holds that the Tribunal has the power to consider amendments to section 64 and 83 Water Act review proceedings.  However, DP Bisucci also observed that exercising such a power is subject to the facts and circumstances of the particular case before VCAT and as such is at the discretion of VCAT.  
•	Relevant matters that might be considered before exercising such discretion include ‘the timing of the amendment, the nature of the amendments sought including whether such amendments transform the original application, and the extent of notice (if any) required’.
11	I agree with and adopt the position of the Tribunal in Rubicon, and have considered the facts and circumstances in this proceeding, which are:
•	The September hearing was conducted because Mr Kelly sought an adjournment of the proceeding to complete hydrological and environmental impact studies, and as it transpired in the September hearing, to consult further with referral authorities and Southern Rural Water.  I note here that one of the reasons Southern Rural Water refused the works licence application was that it believed it needed these reports and Mr Kelly had failed to provide them.  
•	The September order set out process for giving notice of the application and to allow time for the studies to be completed and address the matter of whether a CHMP was required.
•	Mr Kelly’s position for pursuing his ‘amended proposal’ has the effect of abandoning the original dam proposal that was the subject of the decision now under appeal.  The amendment proposes a concept of two new dams (diversion and off-steam storage) with an outline of the design that is subject to further detailing and a finalised location, and winter fill / diversion arrangements.  
•	At the very least, Mr Kelly will need to commission a revised biodiversity impact assessment to address the revised proposal but also finalise some other details of the new proposal’s design.  
•	Mr Kelly indicates that he will seek clarification from Southern Rural water about diversion limits and offers to hold discussions about trading water to address over allocations, while at the same time not conceding that this is a reason to refuse the original or present proposal.  
12	It is clear to me that the extent of the changes under the ‘amended proposal’ requires a fresh decision from Southern Rural Water.  I also agree with Southern Rural Water’s position that this would require a replication of the application process, involving consultation with relevant referral authorities, notice to other water users in the catchment who may be affected by the ‘amended proposal’ and a reconsideration by Southern Rural Water of matters required under the Water Act.  
13	On reflection I am also of the view that the information provided on behalf of Mr Kelly clearly indicates that there are a number of consultative steps he would like to take in respect to the merits of his ‘amended proposal’ with the relevant authorities.  These consultative steps may give rise to further amendments and revisions to the ‘amended proposal’.  This gives rise to a question about how firm the present ‘amended proposal’ is.  Further, while VCAT processes facilitate mediative steps, that process is not for consulting with parties at first instance. The mediative steps are intended to resolve disputes. So to is the overall application and hearing process.  
14	I also stated in the hearing and repeat here that providing notice and allow fulsome consideration of the application by Southern Rural Water and others would mean resetting new dates and extending the time to finalise the proceeding if it were to proceed to a hearing.  This would extend this application well into 2022, while having first been made in June of this year.  There would likely be no advantage in VCAT’s timing over that of a fresh application being made to Southern Rural Water.  
15	Ultimately however it is my conclusion that what Mr Kelly is proposing by way of amending his proposal is to have VCAT make a decision about a new proposal.  The (perhaps unintended) consequence of this is that it would have VCAT replicate the role of the decision maker in processing a fresh proposal.  That is not the role of VCAT in a review application.  
16	For these reasons I informed the parties that my view is that Mr Kelly’s amended proposal should be dealt with by a fresh application with Southern Rural Water, and if not satisfied with the outcomes of that application seek review of Southern Rural Water’s decision in respect to that proposal.  
17	As this was not a matter foreshadowed before the December hearing, I have given Mr Kelly time to consider his position.  Given my preliminary position and that of Southern Rural Water, as set out in these reasons, he may apply to withdraw his application for review under section 74 of the VCAT Act. If he wishes to contest this preliminary position and a strike out of the matter under section 76 of the VCAT Act he must file reasons as to why he would do so with an opportunity for the other parties to respond.  

Ian Potts
Senior Member