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Neoen Australia Pty Ltd v Minister for Planning [2019] VSC 162 (14 March 2019)

Last Updated: 28 January 2020

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01039

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ADMINISTRATIVE LAW - whether the Minister is a ‘Tribunal’ within  s 2  of the  Administrative Law Act 1978  - whether deferral of a decision constitutes a decision – whether deferral of a decision is ultra vires – whether deferral of a decision is unreasonable - Planning and Environment Act 1987 -  Administrative Law Act 1978  - Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development [1993] VicRp 45; 1993 1 VR 627 - Croft v Minister for Energy and Resources [2001] VSCA 112

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HER HONOUR:

1 Neoen Australia Pty Ltd (‘Neoen’) made an application for a planning permit under the Planning and Environment Act 1987 (‘the Act’). The application relates to a proposal for a solar energy facility on land at Lemnos in the State of Victoria. Neoen initially made the application for a planning permit to the local government council on 13 October 2017. On 13 February 2018, the Minister for Planning (‘the Minister’) agreed to the local government council’s request to decide the permit application. Accordingly, the decision as to whether to grant the permit is currently with the Minister for Planning. It has been for some time.

2 On 26 September 2018, the Minister determined to defer his decision on the permit application until further work had been undertaken on the future use and management of irrigation infrastructure in the Goulburn Murray Irrigation District, and until consultation had been completed on the draft Solar Energy-Design and Development Guidelines (‘the deferral determination’). A media release was issued on 8 October 2018 notifying the public of the deferral determination.

3 The Minister recently provided Neoen with reasons for the deferral determination dated 10 February 2019. They indicate that the further work regarding the irrigation infrastructure will not be complete until April or May 2019. The draft Solar Energy-Design and Development Guidelines were open for public consultation until 1 March 2019.

4 Neoen brings this ex parte application under the  Administrative Law Act 1978  (‘the ALA’) seeking, ultimately, orders quashing the deferral determination, and an order requiring the Minister to make the decision within a certain time or a reasonable time. It relies on the affidavit of Garth Campbell Heron, affirmed on 13 March 2019 (‘the Heron affidavit’). The question for consideration in this ruling is whether Neoen has established a prima facie case to enable its application to progress forward.

5 For the following reasons, I do not consider that Neoen has met the threshold to enable this matter to progress forward. Despite the very able submissions from counsel, I am not satisfied this application comes properly within the ALA. Nor am I satisfied that Neoen has established a prima facie case.

6 Turning now to threshold issues under the ALA.

Is the respondent Minister a ‘tribunal’ within  s 2  of the ALA?

7 The ALA defines tribunal as follows:

tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice, but does not include—

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or

(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.^[1]

8 Neoen says that the Minister is a tribunal within the meaning of the ALA. It refers to Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development (‘Grollo’).^[2] In that case, Brooking J held that a power under s 20(4) of the Act should be regarded as governed in its exercise by the principles of natural justice ‘unless the Act displaces the doctrine by a clear manifestation of intention’.^[3] Ultimately, Brooking J held that the exercise of the Minister’s power to adopt and approve the planning scheme was not subject to the principles of natural justice. Here, Neoen submits that there is no clear manifestation of intention to displace the principles of natural justice and accordingly they apply. They say therefore the Minister is a tribunal under the ALA.

9 In Croft v McNamara and Croft v Minister for Energy and Resources (the Croft decisions),^[4] the plaintiff unsuccessfully submitted a tender to mine a number of blocks in the Wimmera region pursuant to the tender process instituted under the Mineral Resources Development Act 1990 (as it then was). Beach J ‘held that the Minister was not obliged to act in a judicial manner towards the applicant and accordingly was not “a tribunal” within the meaning of s 2 of the ALA. Accordingly he dismissed the proceeding.’^[5]

10 On appeal, Brooking JA stated:

We see no reason to doubt the correctness of the decision of Beach J that the Delegate of the Minister, and, for that matter, the Minister himself or herself, is not a ‘tribunal’ within the meaning of  s 2  of the  Administrative Law Act 1978 , and we see no reason to doubt the correctness of his Honour's reasons for decision. We are not left in doubt notwithstanding the additional authorities to which we have been referred by counsel and the argument put to us based on the possibility of bias - an argument not put to the judge and one which we regard as insubstantial.^[6]

11 The Croft decisions did not directly concern s 97F of the PE Act. No relevant authorities were identified in respect of the question of whether the Minister is a ‘tribunal’ for the purpose of s 97F.

12 I do not consider the principles in Grollo applicable here. This is an application under the ALA. Grollo was not. The express definition of tribunal in the ALA, referred to above, does not require a clear manifestation of intention to displace the principles of natural justice. Rather, the definition requires the person arriving at the decision, whether by express direction or not, ‘to act in a judicial manner to the extent of observing one or more of the rules of natural justice’.^[7]

13 I am not satisfied that the deferral determination is an instance where the Minister was required to act ‘in a judicial manner to the extent of observing one or more of the rules of natural justice’. Accordingly, Neoen has not established for the purposes of this application that the Minister is a ‘tribunal’ for the purposes of the ALA. That is not to say that could not be established on another occasion with the opportunity for other evidence and submissions.^[8]

14 The next issue concerns whether a decision has been made.

Did the Minister make a ‘decision’ within the meaning of section 2 of the ALA?

15 Section 2 of the ALA defines decision as follows:

decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision.

16 Neoen says that a decision operating in law has been made by the Minister to determine a question affecting its rights. I reject that submission. There has been no determination of any question affecting Neoen’s rights. The question affecting its rights, namely the application for a planning permit, is yet to be made. The deferral of the determination is not a determination of the question affecting Neoen’s rights.

17 In AB v Lewis,^[9] Fullagar J held that a decision by the Secretary of the Law Institute of Victoria to notify a person that it intended to cancel their practising certificate upon a particular event occurring was not a decision under the ALA. This was because the Secretary ‘never made any right-altering decision; at most he said by the notice that he proposed to make one in the future’.^[10]

18 The learned authors of Judicial Review of Administrative Action state that the ‘test seems to be whether the putative decision effectively precludes any opportunity for reconsidering the question at stake’.^[11]

19 The deferral determination does not alter any of Neoen’s rights. The Minister is required under the Act to consider various matters with respect to permit applications. The Minister’s public notice that he intends to determine particular applications subsequent to the completion of further strategic work is not a right-altering decision, but rather the notification of procedural matters.

20 Alternatively, Neoen submits that the deferral determination is a refusal or failure to perform a duty or exercise of power to make such a decision. I reject that submission. The Minister has not refused or failed to perform his duty or exercise his power. The Minister is not required by the Act to determine permit applications within a stipulated timeframe. A deferral is not a refusal or failure to make a decision.

Is there a prima facie case for relief or remedy under s 7 of the ALA?

21 Section 7 gives the Court powers to provide relief or remedy in the nature of certiorari and mandamus (amongst other things). Here, Neoen seeks orders in the nature of certiorari to quash the deferral determination. It also seeks orders in the nature of mandamus to require the Minister to make a decision within a reasonable time or by a specified time.

22 Neoen has failed to establish a prima facie case that such orders should be made.

23 Firstly, Neoen says that there has been jurisdictional error because the deferral determination is ultra vires, that is, outside the powers of s 97F of the Act. Section 97F provides:

(1) After considering the report of the panel (if any), the planning scheme and any matters to be considered under section 60, the Minister may—

(a) grant the permit; or

(b) grant the permit subject to conditions; or

(c) refuse to grant the permit on any ground he or she thinks fit.

(2) Once the Minister has decided in favour of an application, the Minister must issue the permit to the applicant.

24 Neoen says that there is no power for the Minister to decide to defer a decision under s 97F.

25 I reject the submission that the deferral determination is ultra vires because it is not permitted by s 97F. The determination does not constitute a decision pursuant to s 97F. It is procedural. It is made in circumstances where the Minister has explicitly indicated that he intends to make a decision under s 97F and has provided an explanation for the delay in making the decision.

26 Further, the reasons for the delay in deferring the decision were given at the request of Neoen. The provision of the reasons should not now be used as a basis for saying that a decision has been made pursuant to s 97F. Plainly, no such decision has been made. Moreover, the reasons were provided under cover of a letter dated 12 February 2019 from the Department of Environment, Land, Water and Planning which states that the Minister does not accept that the deferral of his decision constitutes a ‘decision’ under the ALA.

27 Given the above, I am not satisfied that Neoen has established a prima facie case that the deferral determination is ultra vires.

28 Secondly, it is said by Neoen that the Minister has taken into account irrelevant considerations by deferring the decision until the further steps referred to above have been undertaken. However, the Minister has yet to make his substantive decision pursuant to s 97F of the Act.

29 Neoen says that s 60 of the Act does not provide for consideration of the matters upon which the Minister bases the deferral of the decision. Further, that s 97F specifically refers to s 60 as a basis for the Minister’s decision.

30 Section 97F provides that the Minister consider the ‘report of the panel (if any), the planning scheme and any matters to be considered under section 60’. It is accordingly not limited to consideration of s 60 matters but may also take into account the report of the panel and the planning scheme.

31 An irrelevant consideration is, on the authorities, a prohibited one.^[12] Whilst s 60 of the PE Act sets out some mandatory considerations, it does not prohibit the matters which the Minister has given as the basis for the deferral of his decision. Rather, s 60 sets out some wide-ranging considerations including ‘the objectives of planning in Victoria’,^[13] ‘any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development’,^[14] and ‘any significant social effects and economic effects which the responsible authority considers the use or development may have.’^[15]

32 This is consistent with the purpose of the Act, which is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.’^[16] If ‘the circumstances appear to so require’,^[17] the Minister may also consider ‘any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council’.^[18]

33 The Minister indicated that he would wait until further strategic work had been undertaken on the future use and management of irrigation infrastructure in the Goulburn Murray Irrigation District and until consultation had been completed on the draft Solar Energy-Design and Development Guidelines. Both of these matters are capable of falling in the wide-ranging factors of s 60. In particular, the objectives of planning in Victoria must be considered pursuant to s 60(1)(b). These objectives are set out in s 4. They are also wide-ranging.

Objectives

(1) The objectives of planning in Victoria are—

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co‑ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(fa) to facilitate the provision of affordable housing in Victoria;

(g) to balance the present and future interests of all Victorians.

(2) The objectives of the planning framework established by this Act are—

(a) to ensure sound, strategic planning and co‑ordinated action at State, regional and municipal levels;

(b) to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;

(c) to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;

(d) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;

(e) to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;

(f) to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;

(g) to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely review of decisions without unnecessary formality;

(k) to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;

(l) to provide for compensation when land is set aside for public purposes and in other circumstances.

34 Given the above, I am not satisfied that Neoen has established a prima facie case that the Minister has taken into account irrelevant considerations.

35 Thirdly, Neoen says that the outcome of the determination is unreasonable. It says that it lacks intelligible justification. It says that it is unreasonable to refashion the strategic work after the application. It says that the Minister has sufficient information because of information gained through the application and hearing process and because of the existing strategic framework. Moreover, there are no economic effects associated with the proposal because there is no impact on water infrastructure, amongst other things. Therefore, Neoen say that there is no need to defer the decision on that basis.

36 I accept Neoen’s submission that a decision may be unreasonable because of its outcome. In Minister for Immigration v SZVFW, Nettle J stated:

Nor is the abuse of statutory power limited to a decision which may be described as ‘manifestly unreasonable’, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused – where, for instance, there is no ‘evident and intelligible justification’ for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, ‘[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”’.^[19]

37 A decision may be unreasonable if there is no evident and intelligible justification for it. However, unreasonableness is a ‘stringent test’. In Minister for Immigration v SZVFW, Kiefel CJ stated:

In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.^[20]

38 Even accepting Neoen’s submission that there is no impact financially on water infrastructure, I am not satisfied that the Minister’s determination to defer his decision until the further strategic work and consultation has been undertaken and completed, is, prima facie, unreasonable. As discussed above, s 60, which incorporates the planning objectives in s 4, is a wide-ranging one.

39 Further, I reject Neoen’s submission that the Minister acted unreasonably by refashioning the strategic work after the application. The application is yet to be determined. It appears that the Minister sought to consider the strategic work prior to making his decision.

40 Given the above, I am not satisfied that Neoen has established it has a prima facie case for the relief it seeks.

Cost of delay

41 The Heron affidavit evidences that the costs of a 12 month delay to Neoen’s solar project is approximately $25.4 million in lost revenue. Given that, had I accepted submissions by Neoen, I would not have refused the application on the basis there is no matter of substantial importance involved.^[21] However, given the findings above, that issue is a moot one.

Conclusion

42 I will make orders dismissing Neoen’s application.

^[1]  Administrative Law Act  (Vic)  s 2  (‘the ALA’).

^[2] [1993] VicRp 45; 1993 1 VR 627 (‘Grollo’).

^[3] Ibid 637.

^[4] Croft v McNamara & ors [1999] VSC 495; Croft v Minister for Energy and Resources [2000] VSC 171.

^[5] Croft v Minister for Energy and Resources [2000] VSC 171 [12] referring to Croft v McNamara & ors [1999] VSC 495. Gillard J reached the same conclusion: [28].

^[6] Croft v Broad [2001] VSCA 112 [1] (citations omitted).

^[7] The ALA (n 1)  s 2. 

^[8] See, for instance, Antoniou v Roper (1990) 70 LGRA 351, 371 where Murphy J held that the Minister was a ‘tribunal’ under the ALA in relation to the exercise of powers to dispense with notice pursuant to s 20(4) of the Act (as it then was). This case was referred to in Grollo and not followed, as it required the Minister to act in accordance with the requirements of natural justice under the Act.

^[9] [1980] VicRp 18; [1980] VR 151.

^[10] Ibid 153.

^[11] Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6^th ed, 2017) 38 [2.50].

^[12] Sinclair v Tripodis Constructions Pty Ltd [2013] VSC 722 [21]. See generally Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6^th ed, 2017) 281-282 [5.30].

^[13] Planning and Environment Act 1987 (Vic) (‘the Act’) s 60(1)(b).

^[14] Ibid s 60(1)(e)

^[15] Ibid s 60(1)(f).

^[16] Ibid s 1.

^[17] Ibid s 60(1)(a).

^[18] Ibid s 60(1A)(g).

^[19] [2018] HCA 30; (2018) 92 ALJR 713, 733 [82].

^[20] Ibid, 720 [10] (citations omitted).

^[21] ALA (n 1) s 4(2).