VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P302/2022
permit application no. PL-SP/05/0548/B

Applicants	Philip Hawker, Venita Dridan & Others	

Respondent	Stockyard Hill Wind Farm Pty Ltd	
other	Pyrenees Shire Council	
	Minister for Planning	
SUBJECT LAND	Stockyard Hill Wind Farm
STOCKYARD HILL  VIC  3373	
hearing	Practice Day Hearing	
date of hearing	21 April 2022	
DATE OF ORDER	22 April 2022	
citation	Hawker v Pyrenees SC [2022] VCAT 442	
Order
PARTIES TO PROCEEDING
1	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, the following person is joined as a party to the proceeding:
Minister for Planning.
ACTIONS PRIOR TO NOTICE
Amended application for enforcement order 
2	By 29 April 2022 the applicants must file with the Tribunal and serve on all parties an amended version of the application for enforcement order dated 16 March 2022 that:
(a)	reflects the applicants’ changed position and only refers to the alleged breaches that the applicants are now pursuing; and
(b)	contains clear and precise details:
(i)	explaining the contravention/s alleged;
(ii)	explaining the reasons why the Applicants contend the contravention/s have occurred;
(iii)	identifying any questions of law that might need to be determined by the Tribunal; and
(iv)	explaining the enforcement orders sought.
Order to amend under section 127
3	By 6 May 2022, any party who objects to the Tribunal making an order on the papers pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 granting leave to amend the application for enforcement order to the version provided in accordance with order 2 (above), must provide written submissions to the Tribunal regarding the party’s objection. In the event that no objections, or no responses, are received by 6 May 2022, the Tribunal intends to make an order on the papers amending the enforcement order application. 
Notice: what the Pyrenees Shire Council must do
4	The Pyrenees Shire Council is directed to liaise with the applicants to assist in the ascertainment of the addresses of all landowners affected by planning permit PL‑SP/05/0548/B so that by no later than 18 May 2022 the applicants are in possession of a list of all landowners for the purposes of the applicants giving notice of this application.
HEARINGS
5	This application is listed for a practice day hearing and a hearing as detailed below.
The hearings will be at 55 King Street, Melbourne.
If there is any change to these details, the Tribunal will notify you.

Practice Day Hearing:	
Date 	15 July 2022	
Start time	For details of the start time, please refer to the Tribunal’s website (www.vcat.vic.gov.au/todays-hearings) after 5.00pm on the day before the hearing	
Duration 	2 hours	
Conduct	Online	

Hearing:	
Date and time
	28 & 29 September 2022
10.00 am – 4.30 pm	
Conduct	Online platform	
The details of the online platform will be provided to the parties before the hearing.
Notice: what the applicants must do
6	By 25 May 2022 the applicants must give the following documents to the persons who are named in the application as respondents and to the owner and the occupier of the land (if they are not the applicant or already named as respondents or affected persons) and to the Minister for Planning:
•	a copy of the application and all attachments; and
•	any other material given to the Tribunal; and
•	a copy of this order; and
•	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
•	a letter which must:
o	explain that an application for enforcement order has been lodged and the Tribunal requires the documents to be given to any respondents, the owner and the occupier of the land;
o	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 15 June 2022 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
o	specify the dates and times of the practice day hearing and hearing contained in Order 1.
7	By 25 May 2022 the applicants must give the following documents to the persons who are named in the application as affected persons (if any):
•	a copy of the application and all attachments; and
•	any other material given to the Tribunal; and
•	a copy of this order; and 
•	a blank Statement of Grounds by an affected person – enforcement form (available at https://www.vcat.vic.gov.au/sites/default/files/2020-07/statement-of-grounds-form-affected-person.pdf); and
•	a letter which must:
o	explain that an application for enforcement order has been lodged and the Tribunal requires the documents to be given to any person who may be affected by the alleged contravention or the making of an enforcement order;
o	explain that if the affected person wishes to be heard or to make a written submission in respect of the application for enforcement order, they must lodge a statement of grounds detailing their submission with the Tribunal by 15 June 2022 and that the Tribunal will consider the nature of their involvement in the proceedings at the practice day hearing; and
o	specify the dates and times of the practice day hearing and hearing contained in Order 1.
8	By 1 June 2022 the applicant must give to the Tribunal:
•	a completed statement of service; and
•	a list of names and addresses of all persons and authorities to whom the documents were given; and 
•	a sample of the letter sent with the documents. 
If a statement of service is not given to the Tribunal by 1 June 2022, this application may be struck out without further notice. No reminder will be sent.
9	As 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.
What must the responsible authority do?
10	By 15 June 2022 the responsible authority must give the information required by the Tribunal’s Practice Notice PNPE2 – Information from Decision Makers (PNPE2) to the Tribunal, unless this material has already been given in another related proceeding.  The responsible authority must give a copy of the completed table of Practice Note PNPE2 to the applicant.  The attachments do not need to be given to the applicant.
11	Where the responsible authority is not the applicant, by 15 June 2022 the responsible authority must give a copy of its statement of grounds to the Tribunal, the applicant, any respondent and any affected person.
What must a respondent, owner or occupier do?
12	If you are a respondent, owner or occupier or the Minister for Planning and you want to object to or state your position on the making of the enforcement order sought by the applicants, you must give a copy of your statement of grounds to the Tribunal, the applicants and the responsible authority by 15 June 2022.  
What must an affected person do?
13	If you are an affected person and you want the Tribunal to consider your position on the application for enforcement order: 
•	you must give a copy of your statement of grounds to the Tribunal applicants and the responsible authority by 15 June 2022.  
•	if you also want to appear and present a submission at the hearing you must indicate this in your statement of grounds form and attend the next scheduled hearing so that the Tribunal can consider your role in the proceeding.  (Note: you must also pay a fee.  Information regarding fees is available at www.vcat.vic.gov.au/fees.)
Request for proposed orders
14	By 22 June 2022 any party seeking that the Tribunal make any orders (including final orders) prior to the final hearing of this proceeding must file with the Tribunal and serve on all other parties such request for proposed orders accompanied by written justification for the making of same.
Administrative mention
15	The proceeding is adjourned for administrative mention on 29 June 2022. By that date each party must advise the Tribunal in writing:
•	whether the matter is resolved or is proceeding to a hearing;
•	whether the practice day hearing scheduled for 15 July 2022 is required, should be converted to a preliminary hearing or should be vacated;
•	whether the listed duration of the practice day hearing scheduled for 15 July 2022 will be sufficient;
•	if that party is ready for a hearing and that party’s estimate of the duration of the final hearing; and
•	if a further mention is requested.
No attendance is necessary.
Practice day hearing  
16	The purpose of the Practice Day Hearing is:
•	To consider whether to grant the application for enforcement order, if no statement of grounds has been lodged with the Tribunal by 15 June 2022 objecting to the application;
•	To give directions about the future conduct of the proceeding, if the application for enforcement order is not determined at the Practice Day Hearing; and
•	To consider any request from a party received in accordance with order 14 (above) for any orders to be made in relation to the proceeding.
Hearing
Witness statements and submissions 
17	No later than 20 business days before the hearing, the applicants must provide the Tribunal and all parties with:
•	a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
•	a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided.  All expert witness statements must be prepared in accordance with Practice Note – PNVCAT2 Expert Evidence.  
18	No later than 15 business days before the hearing, the respondent and any other party must provide the Tribunal and all parties with:
•	a list of all of the lay and expert witnesses that they intend to call or make available to give evidence at the hearing; and
•	a witness statement from each lay or expert witness that they intend to rely on at the hearing, not yet provided.  All expert witness statements must be prepared in accordance with Practice Note – PNVCAT2 Expert Evidence.  
19	No later than 10 business days before the hearing, the applicants must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au 
20	No later than 5 business days before the hearing, all other parties must provide an electronic copy of their submissions and associated material (such as supporting documentation and case law) to the Tribunal and all parties.  The copy for the Tribunal must be sent to admin@vcat.vic.gov.au
Requests for procedural orders
21	Any request for procedural orders from the Tribunal must be made in writing and a copy must be given to all parties.
Tribunal Book
22	No later than 5 business days before the hearing, the applicants must provide a Tribunal Book to the Tribunal and all parties.  One electronic copy and one colour, paper copy of the Tribunal Book must be provided to the Tribunal.  The electronic copy for the Tribunal must be sent to admin@vcat.vic.gov.au
Information on the content and format requirements of the Tribunal Book is available at www.vcat.vic.gov.au 

Susan Whitney
Member			

Appearances
For Philip Hawker, Venita Dridan & Others	Mr Joel Fetter of counsel instructed by Ms Dominica Tannock, solicitor, of DST Legal.	
For Pyrenees Shire Council	Ms Maria Marshall, solicitor, of Maddocks.	
For Minister for Planning	Ms Caryn van Proctor of counsel instructed by Ms Samantha Megenis, solicitor, of Department of Environment, Land, Water and Planning.	
For Stockyard Hill Wind Farm Pty Ltd	Ms Alexandra Guild of counsel instructed by Ms Jillian Button, solicitor, of Allens.	

Help and support
Information for all parties is available at the Tribunal’s website www.vcat.vic.gov.au

For information about what happens after you make your application, visit
www.vcat.vic.gov.au/afterapplyplanning

For information about responding to an application visit www.vcat.vic.gov.au/respondplanning

If you are not able to access the website, contact the Tribunal on 1300 01 8228 Monday to Friday 9.00am to 4.30pm to request a paper copy.

To find out about the Tribunal’s support services such as interpreters, disability support and security, visit www.vcat.vic.gov.au/support

reasons
1	The practice day hearing scheduled in the Tribunal’s order dated 8 April 2022 was for the following purposes:
•	to give directions about the future conduct of the proceeding;
•	to clarify whether the responsible authority is Pyrenees Shire Council as stated in the application, or whether it is the Minister for Planning (’Minister’); and
•	to determine who should be given notice of the proceeding.
2	Prior to the practice day hearing, the Tribunal received submissions in relation to these matters along with proposed procedural orders. 
3	Discussions during the practice day hearing provided further clarification as to the Applicants’ position regarding the alleged breaches of planning permit PL-SP/05/0548/B (‘Permit’). 
4	Having considered the submissions put, I regard the appropriate next step is for the Applicants to resubmit the application for enforcement order so that the revised version reflects the Applicants’ changed position and only refers to the alleged breaches that the Applicants are now pursuing. The revised application for enforcement order form should contain clear and precise details regarding the contraventions alleged, the reasons why the Applicants contend the contraventions have occurred and the identification of any questions of law that might need to be determined by the Tribunal. Revised proposed enforcement orders should also be stated.
5	The following comments are made on the basis of what was said at the practice day hearing; I acknowledge that, depending on the content of the revised application for enforcement order, other matters might be raised.  
6	Having heard from the Applicants at the practice day hearing, I understand that the revised application for enforcement order will contain an allegation that the Respondent has not complied with clause 3.7 of the ‘Stockyard Hill Wind Farm Noise Compliance Test Plan S3425.2C5, January 2018’ (‘NCTP’). The NCTP was endorsed by the Minister pursuant to condition 26 of the Permit on 17 May 2018 and forms part of the Permit.
7	Clause 3.7 of the NCTP includes the following requirement:
Between commissioning of first turbine and commissioning of final turbine 
The near field testing at a single turbine will commence within 5 months of the commissioning of the first turbine. The near field testing at one additional turbine will be repeated every 6 months from the date of the previous near field test until all turbines are commissioned. A preliminary report will be prepared and provided to the Minister within 1 month of each of the near field tests. These preliminary reports will indicate any potential concerns regarding achieving the criteria at residences based on the measured sound power levels.
8	I understand the Applicants’ allegation to be that whilst a ‘preliminary report’ has been prepared and provided to the Minister, that such report did not fulfil the requirements of clause 3.7. This is based on what the Applicants interpret is required by clause 3.7. I understand that the Applicants contend that the preliminary report provided pursuant to clause 3.7 should have included additional information regarding the testing that occurred pursuant to the Permit. To this end, the Applicants seek for the Respondent to provide them with a copy of the document entitled “Acoustic Analysis of Wind Turbine Generator 18 (Sonus Report S3425.2C17, February 2022)” (‘Number 18 Report’), which they say should have been provided to the Minister pursuant to clause 3.7 of the NCTP.
9	I understand that the Respondent holds a different view as to what is required by clause 3.7.
10	The question of whether the preliminary report that has been provided to the Minister satisfies the requirements of clause 3.7 is central to whether there has been a breach of the Permit, which itself is integral to whether an enforcement order should be issued by the Tribunal. This is something that the Tribunal will need to determine based on the preliminary report that has been provided to the Minister. 
11	Having heard from the Applicants as to the importance they place upon the Number 18 Report, if the Respondent wishes to provide the Number 18 Report to the Applicants it may elect to do so. However, at this stage, and contrary to the request made by the Applicants, I will not direct the Respondent to provide the Applicants with a copy of the Number 18 Report.
12	Order 14 of the orders I have made provides the opportunity for any party who seeks the Tribunal to make certain proposed orders, including final orders disposing of this proceeding, to file and serve such proposed orders accompanied by written justification by a specified date. This order is intended to address the matters contained in the draft proposed orders prepared by the Respondent and by the Applicant. Such proposed orders are then to be addressed at the scheduled practice day hearing, noting that the administrative mention enables the parties to indicate whether that practice day hearing is required or should be converted to a preliminary hearing.
13	The orders I have made also require notice to be given to the landowners. Pursuant to section 115 of the Planning and Environment Act 1987, the owners and occupiers of the land the subject of the enforcement order application are entitled to notice of the application. I was taken to various provisions that might be relied upon to modify or waive the notice requirement and also discussed the ways in which notice might be effected. 
14	I acknowledge that the nature of the alleged breach (as I understand it) is within the control of the Respondent and is not something with which the landowners would necessarily be involved. I also acknowledge the likely high number of landowners of the subject land. Notwithstanding these matters, I do not think that it would be in the interests of justice to waive compliance with the requirement to give notice to the landowners because if an enforcement order was issued by the Tribunal this would affect their land and might also affect the operation or continuation of the wind farm, and their interest in the continued operation of the wind farm.
15	I turned my mind to the other possible forms of notice that might be directed, however, in the circumstances before me I think that direct notice to the landowners is the most reliable way to ensure that those persons are made aware of the application for enforcement order. I have directed that the Pyrenees Shire Council liaise with the Applicants to assist the Applicants in determining whether the addresses contained in the title searches that they have already obtained are the current addresses for the landowners; I envisage that the Council’s rate records might assist in this respect.
16	Finally, I have ordered that the Minister be a party to this proceeding. I acknowledge that the parties agree that the Pyrenees Shire Council is the Responsible Authority for the purposes of the Permit and for the breaches alleged and seemingly remaining in issue. As such, the Minister is not, at this stage, the Responsible Authority. However, the Tribunal has a broad power under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) to join a person as a party to a proceeding. Pursuant to that power, I have determined that it would be desirable at this stage for the Minister to be a party to this proceeding, having regard to the integral part that the Minister played in the issuing of the Permit, the Minister’s approval of the NCTP and his role in determining whether various things have been done to the satisfaction of the Minister. I say this notwithstanding that the provision of the preliminary report under clause 3.7 is not expressed to be something that needs to be done to the satisfaction of the Minister. It may well be that in the future, when the revised application for enforcement order is lodged and statements of grounds are received from parties, the Tribunal considers that the Minister is no longer a necessary party to the proceeding, at which time an order could be made under section 60A of the VCAT Act removing the Minister as a party. This is a matter for the Tribunal to determine at that time.

Susan Whitney
Member

PLANNING AND ENVIRONMENT LIST
STATEMENT OF SERVICE
To be completed by or for the Applicant

Subject Land	Stockyard Hill Wind Farm, STOCKYARD HILL  VIC  3373	VCAT Ref: P302/2022	

I, ………………………………………………………….……………..(Print full name)
of ………………………………………………………………………..(Print name of firm, if relevant)
…………………………………………………………………………..(Print address)
………………………………………………………………………….. 
STATE to the Victorian Civil and Administrative Tribunal (VCAT) that:

1.	On …………………………… (date of service) I served a copy of the application and all attachments and other material filed with the Tribunal and a copy of the initiating order on the responsible authority (where not the applicant).

2.	On …………………………… (date of service) I served the following documents on each of the persons specified below by post*/by email*/in person*. (*delete whichever does not apply)

Documents served:
•	a cover letter;
•	a copy of the application and all attachments and other material filed with the Tribunal;
•	a copy of the VCAT initiating order;
•	a blank statement of grounds form, cover letter and all other information required to be provided by VCAT’s initiating order. 

Persons served: (tick as appropriate)
	respondents named in the application for enforcement order	
	person who may be affected by the application named in the application	

3.	I attach copies of the following documents.
Documents attached: (tick as appropriate)
	list of names and addresses of all persons or authorities served 	
	copy of sample cover letter sent with documents served	

I understand that knowingly giving false or misleading information to VCAT may result in imprisonment or fine (section 136 of the Victorian Civil and Administrative Tribunal Act1998).

Signature ……………………………………………………………Date………………………………..