Cumming v Minister for Planning

COURT OR TRIBUNAL

Supreme Court of Victoria - Court of Appeal

DATE FILED (OR FIRST HEARING DATE)

15/06/2020

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Wind farm

REVIEW TYPE

Judicial Review

SUMMARY

PLANNING AND ENVIRONMENT – Appeal – Judicial review – Wind farm –Environmental effects assessment – Ministerial call in of permit application – Panel report – Brolga habitat protection buffers – Wind turbines – Decision to grant permit on conditions – Whether Minister denied applicants procedural fairness by not disclosing letter received from respondent after panel hearing – Whether Minister failed to consider amended planning scheme – Whether permit missing mandatory conditions invalid – Whether slip rule could be used to correct permit to impose missing mandatory conditions – Whether Minister’s assessment under Environment Effects Act 1978 unreasonable, irrational or illogical having regard to Brolga habitat model – No denial of procedural fairness in granting permit after receipt of letter without giving objectors further opportunity to be heard – No failure to consider amended planning scheme provisions – Failure to include mandatory noise monitoring conditions did not render permit wholly invalid – Open to correct permit by substituting mandatory conditions pursuant to s 71 of the Planning and Environment Act 1987 – Minister’s assessment of EES open and not shown to be unreasonable – Planning and Environment Act 1987 ss 71, 72, 87, 97B, 97E, 97F, 97I, 97J; Environment Effects Act 1978 ss 8, 9 – Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; South Australia v O’Shea (1987) 163 CLR 378 – Leave granted – Appeal dismissed.

CASE DOCUMENTS

Cumming v Minister for Planning [2020] VSCA 208