Stanley Rural Community Inc v Stanley Pastoral Pty Ltd [2016] VSC 764 (12 December 2016)

Last Updated: 12 December 2016

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 06415

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ADMINISTRATIVE LAW – Application for leave to appeal on question of law – Decision of Victorian Civil and Administrative Tribunal upholding an application for review of Indigo Shire Council refusal to grant planning permit for bulk extraction of groundwater – Respondent had previously been granted a licence under s 51 of the Water Act 1989 to extract 19 megalitres of groundwater – Rights conferred upon respondent as holder of licence under Water Act were not expressly limited by any provision of the Planning and Environment Act 1987 or any planning scheme made thereunder – Application for leave to appeal dismissed – Water Act 1989 ss 1, 8, 40, 51, 53, 56, 64, 305B; Planning and Environment Act 1987 ss 1, 3, 4(1), 6(1)(b), 6(2)(b), 47(1)(a), 60(1), 77, 84B; Victorian Civil and Administrative Tribunal Act 1998 s 148.

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HIS HONOUR:

Introduction

1 The central question in the current proceedings is whether rights conferred upon Stanley Pastoral Pty Ltd (‘SPPL’), as the holder of a water licence issued pursuant to the Water Act 1989, were limited by the provisions of the Planning and Environment Act 1987 (‘P & E Act’) and the Indigo Planning Scheme (‘IPS’) made thereunder.

2 I have concluded that the rights conferred upon SPPL by a ‘take and use’ water licence issued pursuant to s 51 of the Water Act were not expressly limited by any provision of the P & E Act or the IPS. Consequently, SPPL did not require a permit to extract water the subject of the licence. This is the same conclusion that was reached by the Victorian Civil and Administrative Tribunal (‘Tribunal’) in its decision which is challenged in the current proceedings. My conclusion, however, is based upon a narrow point of construction arising under s 8 of the Water Act which does not appear to have been ventilated at first instance and which is not addressed in the Tribunal’s reasons. This consideration may bear upon the question of costs of the current proceedings.

3 On 31 October 2013, SPPL was granted two licences by the Goulburn-Murray Water Authority pursuant to s 51 and s 67 of the Water Act. First, a ‘take and use’ licence to extract 19 megalitres of groundwater per annum for industrial or commercial use, as well as domestic and stock use. Second, a licence to operate works. The licensed works were described as a drilled bore to a depth of 60 metres.[1]

4 On 6 January 2014, SPPL applied to the Indigo Shire Council for a planning permit. The proposal in respect of which a permit was sought was identified as ‘“change of use” of existing groundwater bore as a utility installation (bulk water extraction) and the development of a water transfer station’.[2] The ‘bulk water extraction’ referred to in the permit application was the 19 megalitres per annum which SPPL had been licensed to extract under the take and use licence granted on 31 October 2013. The proposed development included the upgrade of existing property access, construction of a shed to house water storage silos and associated equipment, and the construction of a water transfer station to facilitate the loading of tankers. Under the proposal, water would be transported to a bottling plant in Albury.

5 On 26 May 2015, the Indigo Shire Council resolved to refuse the application for a permit on the following grounds:

1. The proposal will result in the direct loss of high quality agricultural land.
2. The proposal is likely to adversely impact on the sustainable agricultural productivity of high quality agricultural land.
3. The proposal has the potential to reduce spring flow, stream flows and the availability of ground water for summer irrigation within the Myrtle Creek catchment.
4. The proposal will likely have an adverse impact on the biodiversity of the area through reduced spring flows and stream flows.
5. The proposal will result in an increase in the heavy vehicle traffic on local roads, which will negatively impact on tourism values.^[3]

6 SPPL applied to the Tribunal pursuant to s 77 of the P & E Act for a review of the decision of the Indigo Shire Council to refuse to grant a permit. The review proceedings were heard over five days in October 2015, with a decision delivered on 23 November 2015.[4] The Tribunal, comprised of Senior Member Wright QC and Member Sharpley, allowed the application for review. The Tribunal granted SPPL’s permit application subject to prescribed conditions set out at Appendix A of the VCAT decision.

7 By an originating motion dated 18 December 2015, Stanley Rural Community Inc (‘SRC’) seeks leave to appeal from the Tribunal’s orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. SPPL does not oppose the grant of leave to appeal, but contends that the appeal should be dismissed.[5]

8 The Tribunal concluded that a planning permit is not required to extract groundwater. Its reasoning in support of this conclusion is set out at [38] to [44] of its decision:

The Planning and Environment Act

The matters that can be provided for in a planning scheme are set out in s. 6 Planning and Environment Act 1987 (the Act). The powers conferred by s. 6 can compendiously be described as a power to regulate or prohibit the use and development of land. This is a very broad power, and on the face of it would enable a planning scheme to impose controls over the extraction of groundwater.

Approval of a land use under a planning scheme would in the normal course embrace all activities associated with or ancillary to that use. Thus, in the absence of specific provisions planning approval for a hotel would not require additional planning permission for a liquor licence. Approval for a recreational club (place of assembly) would not require additional planning permission for gaming machines. A domestic tennis court would not need planning permission to install lights. However, in each of these instances (and indeed many others) the planning scheme has specific provision which requires planning permission for an activity, or a component, that would otherwise be embraced by the land use approval. These specific provisions are to be found in clause 52 of the planning scheme.

Specific provisions are to be found in relation to:

• satellite dishes (cl. 52.04)
• heliports (cl. 52.15)
• post boxes (cl. 52.16)
• telecommunication facilities (cl. 52.19)
• private tennis courts (cl. 52.21)
• liquor licences (cl. 52.27)
• electronic gaming machines (cl. 52.28)
• wind energy facilities (cl. 52.32)

The extraction of groundwater is a similar activity which although amenable to planning control by inclusion in the planning scheme of a specific provision requiring a permit for such extraction, the planning authorities have chosen not to be subject to such control. This is consistent with the clear Government intention that matters relating to groundwater should be dealt with under the Water Act 1989.

What is subject to planning control is the installation of the infrastructure for the collection, treatment, transmission, storage and distribution of water. The means by which the water is acquired or brought on to the land is not subject to specific control, and indeed in this case had already been approved by the relevant authority before the planning permit was sought.

The “covering the field” test derived from cases involving inconsistent State and Commonwealth legislation is of little assistance in this case. The question here is whether powers which are capable of being used to control the extraction of groundwater available to different authorities under the Water Act 1989 and the Planning and Environment Act 1987 have in fact been used.

In summary, the Water Act sets out a code for the use and control of groundwater, including procedures and protocols for obtaining licences to extract groundwater which include the opportunity for third party participation. The Planning and Environment Act 1987 empowers planning schemes to introduce a control over the extraction of groundwater but the planning authorities have chosen not to do so. This analysis leads the Tribunal to the conclusion that a planning permit is not required to extract groundwater.^[6]

9 SRC contends that the Tribunal’s conclusion that a planning permit is not required to extract groundwater involves an error of law.[7] It submits that the extraction of groundwater is part of the use of land for which a planning permit is required under cl 35.07-1 of the IPS.[8] It submits:

In this respect, the legislation governing licences for water allocations is no different from the detailed legislation that provides for specific controls and permissions over subdivision, building, heritage, environment, noise, dust, traffic and transport, liquor, sex work, gambling and many other matters including the extraction of other natural resources.

The P & E Act is the paradigm case of a State Act that is constantly operating in conjunction with other State Acts – by providing a ‘cumulative control’ over activities also regulated elsewhere, at a different level of detail and focus in the context of its own area of concern.^[9]

10 The central issue before the Tribunal and in the current proceedings involves the extent to which rights conferred pursuant to a licence granted under the Water Act may be qualified by the P & E Act and any planning scheme authorised by that Act. It is therefore necessary to consider in some detail the legislative scheme of the Water Act, the P & E Act, and the relevant provisions of the IPS.

Water Act 1989

11 The purposes of the Water Act are prescribed in section 1. These include the following purposes:

...

(b) to provide for the integrated management of all elements of the terrestrial phase of the water cycle;

(c) to promote the orderly, equitable and efficient use of water resources;

(d) to make sure that water resources are conserved and properly managed for sustainable use for the benefit of present and future Victorians;

...

(f) to eliminate inconsistencies in the treatment of surface and groundwater resources and waterways;

(g) to provide better definition of private water entitlements and the entitlements of Authorities;

...

(i) to provide recourse for persons affected by administrative decisions.

...

12 Section 51(1)(b) provides that a person may apply to the Minister for the issue of a licence to take and use groundwater.

13 Section 53 provides:

(1) In considering an application under section 51, the Minister must have regard to the following matters–

(a) the report of any panel appointed under section 50;

(ab) any advice and comments received within the period of 30 days referred to in section 51C(1);

(b) the matters mentioned in paragraphs (b) to (m) of section 40(1).

...

14 Section 40(1)(b)-(m) provides:

40 Matters to be taken into account

(1) ...

(b) the existing and projected availability of water in the area;

(ba) the permissible consumptive volume, if any, for the area;

(c) the existing and projected quality of water in the area;

(d) any adverse effect that the allocation or use of water under the entitlement is likely to have on—

(i) existing authorised uses of water; or

(ii) a waterway or an aquifer; or

(iii) the drainage regime within the meaning of section 12(1); or

(iv) the maintenance of the environmental water reserve in accordance with the environmental water reserve objective;

(e) any water to which the applicant is already entitled;

...

(g) the need to protect the environment, including the riverine and riparian environment;

...

(i) the conservation policy of the government;

(j) government policies concerning the preferred allocation or use of water resources;

(ja) whether the proposed source of water is within a heritage river area or natural catchment area within the meaning of the Heritage Rivers Act 1992 and whether there is any restriction on the use of the area under that Act;

(k) if appropriate, the proper management of the waterway and its surrounds or of the aquifer;

(l) the purposes for which the water is to be used;

(m) the needs of other potential applicants.

...

15 Section 56(1) prescribes the conditions that a licence issued under s 51 will be subject to:

56 Conditions of licence

(1) A licence issued under section 51 is subject to—

(a) any conditions that are prescribed or fixed by the Minister relating to—

(i) the protection of a waterway or an aquifer; or

(ii) the purposes for which the water may be used; or

(iii) in the case of a licence issued under section 51, the maximum amounts of water which may be taken in particular periods or circumstances; or

(iv) in the case of a licence issued under section 51, payment for the amount of water used; or

(v) the protection of the environment, including the riverine and riparian environment; or

(va) the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or

(vi) the conservation policy of the Government; or

(vii) the efficient use of water resources; or

(viii) if appropriate, the proper management of the waterway and its surrounds or of the aquifer; or

(ix) the drainage regime within the meaning of section 12(1); or

(x) the manner in which the licensee is to compensate any person whose existing authorised use of water may be adversely and materially affected by the allocation or use of water under the licence; or

(xi) the protection or control of in-stream uses; or

(xii) in the case of a licence issued under section 51, the installation and use of measuring devices or pumps; and

(xiii) notification of change of ownership of land on which water is taken under a registration licence; and

...

(c) any other conditions that the Minister thinks fit and specifies in the licence.

...

16 Section 64(1)(b) provides that a person whose interests are affected by a decision may apply to the Tribunal for a review of the decision by the Minister under s 55(1) to approve an application under s 51.

17 Section 305B sets out the matters that the Tribunal must take into account in any review proceedings. It provides:

305B Matters Tribunal must take into account in review proceedings

In determining an application under this Act for review of a decision (other than an application for review under section 266(6)) the Victorian Civil and Administrative Tribunal must—

(a) take into account any relevant planning scheme; and

(b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not, as at the date the application is determined, approved by the Minister or the planning authority; and

take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970.

18 No application for review was made in respect of the licence which was granted by the Goulburn-Murray Water Authority on 31 October 2013.[10] Thus, when SPPL made an application to the Indigo Shire Council for a permit, the licence which it had been granted was subject to s 8 of the Water Act. Section 8(4)(a) provides:

(4) A person has the right to use–

(a) water taken or received by that person in accordance with a licence or other authority issued to that person under this Act or any corresponding previous enactment.

Section 8(6) provides:

(6) A right conferred by this section is limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in—

(a) this Act, any regulations or by-laws under this Act, or any permission, authority or agreement made under this Act; or

(b) any other Act or in any permission or authority granted under any other Act; or

(c) the conditions of a licence issued under this Act; or

(d) the prescriptions contained in an approved management plan drawn up under Division 3 of Part 3 for a water supply protection area.

Planning and Environment Act 1987

19 Section 1 of the Act provides that its purpose ‘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’.

20 Section 4(1) prescribes the objectives of planning in Victoria. These include:

(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;

...

21 Section 6(1)(b) provides that a planning scheme for an area:

may make any provision which relates to the use, development, protection or conservation of any land in the area.

22 Section 6(2)(b) provides that a planning scheme may:

regulate or prohibit the use or development of any land.

23 ‘Use’ is defined in s 3(1) as follows:

use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed.

24 Section 47(1)(a) provides:

(1) If a planning scheme requires a permit to be obtained for a use or development of land or in any of the circumstances mentioned in section 6A(2) or for any combination of use, development and any of those circumstances, the application for the permit must—

(a) be made to the responsible authority in accordance with the regulations.

...

25 Section 60(1) provides that before deciding on an application, the responsible authority must consider:

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria; and

(c) all objections and other submissions which it has received and which have not been withdrawn; and

(d) any decision and comments of a referral authority which it has received; and

(e) 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; and

(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.

26 Section 77 provides that an applicant for a permit ‘may apply to the Tribunal for review of a decision by a responsible authority to refuse to grant the permit’.

27 Section 84B(1) provides:

(1) In determining an application for review under this Act, the Tribunal must—

(a) take account of any matter which the person or body in respect of whose decision the application for review is made—

(i) properly took account of in making its decision; or

(ii) was required to take account of in making its decision; and

(b) have regard to any matter which the person or body in respect of whose decision the application for review is made—

(i) properly had regard to in making its decision; or

(ii) is required to have regard to in making its decision.

Indigo Planning Scheme

28 The land in respect of which SPPL sought a planning permit is within a farming zone for the purposes of the IPS. The purpose of the farming zone is prescribed by cl 35.07 of the IPS. The prescribed purpose includes:

To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of land for agriculture.

29 Clause 35.07–1 prescribes a table of uses. Section 1 of the table prescribes uses for which a permit is not required. Section 2 prescribes uses for which a permit is required, and s 3 prescribes prohibited uses. The uses for which a permit is required under s 2 include:

• Utility installation (other than Minor utility installation and Telecommunications facility)
• Any other use not in Section 1 or 3.

30 ‘Utility installation’ is defined in cl 74 as including land used:

(c) to collect, treat, transmit, store, or distribute water.

Were the rights conferred upon SPPL under the take and use licence qualified by the P & E Act and/or IPS?

31 When SPPL applied for a planning permit in January 2014 it was the holder of a take and use licence which had been granted under s 51 of the Water Act. SPPL was licensed to extract 19 megalitres of groundwater for a range of uses, including commercial uses. No appeal in respect of the grant of the licence had been instituted. At the time it lodged its application in January 2014, SPPL had a statutory right conferred by s 8(4)(a) of the Water Act to use water taken in accordance with the licence. Relevantly, that statutory right was subject to s 8(6)(b), namely, it was limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in any other Act or in any permission or authority granted under any other Act.

32 The P & E Act and the IPS fall within the terms of s 8(6)(b). The central issue in the present proceedings is whether the right conferred upon SPPL by the take and use licence to extract 19 megalitres of groundwater per annum for uses, including commercial use, was expressly (and not merely impliedly) limited by the terms of the P & E Act and/or the IPS. Critical to the resolution of this issue is the meaning of the phrase ‘expressly (and not merely impliedly)’ in s 8(6).

33 Where the word ‘expressly’ is used in a statute, it can be construed in two alternate ways. First, it may serve ‘to emphasize the generality of the main provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests’.[11] When used in this way:

...it is not necessary that that thing should be specially mentioned; it is sufficient that it is directly covered by the language however broad the language may be which covers it so long as the applicability arises directly from the language used and not by inference therefrom.^[12]

34 Second, ‘expressly’ may be used as an antonym of ‘impliedly’.[13] When used in this way it has a broader operation, requiring an explicit reference to the relevant subject matter. An example of this broader approach is provided by Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic),[14] where the High Court considered the meaning of s 17(2) of the Supreme Court Act 1986. That section provides that ‘unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge’. The plurality stated:

Section 17(2) contemplates ‘express’ provision otherwise. There are legislative provisions in which ‘expressly’ is not used as an antonym of ‘impliedly’ but ‘merely serves to emphasise the generality of [one] provision by making clear that no case is outside that provision unless that is the necessary result of the operation of another enactment according to the intention it manifests’. It may greatly be doubted, however, that ‘expressly’ should be understood as being used in s 17(2) in this way. Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge.^[15]

35 The reasoning in Roy Morgan Research is apposite in the present case. The terms of s 8(6) of the Water Act put beyond doubt that ‘expressly’ is used as an antonym of ‘impliedly’. Consequently, absent explicit words in the P & E Act and/or the IPS qualifying the rights conferred by the take and use licence, SPPL did not require a permit to extract the water the subject of that licence.

36 There is no provision in the P & E Act which, in explicit terms, qualifies the rights conferred upon the holder of the licence granted under s 51 of the Water Act. Mr Robinson, who appeared for SRC, submitted that the IPS does expressly limit the rights conferred upon SPPL by the take and use licence. He submitted that the extraction of 19 megalitres of groundwater fell within the catch-all ‘any other use’ provision in s 2 of cl 35.07 for which a permit was required.[16]

37 If the word ‘expressly’ was used in s 8(6) in the first sense referred to above; ie not as an antonym to ‘impliedly’, this submission would have considerable force. Prima facie, a necessary result of the operation of cl 35.07-1 of the IPS is that a permit is required for the bulk extraction of groundwater. However, the terms of s 8(6) clearly manifest an intention that ‘expressly’ is used in the broader sense as an antonym to ‘impliedly’. Consistent with the reasoning of the High Court in Roy Morgan Research, in those circumstances, an intention to limit the rights conferred upon SPPL as the holder of a licence issued under s 51 of the Water Act requires explicit words. It is not satisfied by reason of the bulk extraction of water falling within the definition of utility installation or the innominate category ‘any other use’.

38 The operation of ss 8(4) and (6) of the Water Act, combined with the absence of any express provision in the P & E Act and/or IPS qualifying the rights conferred upon SPPL by the take and use licence, is fatal to SRC’s appeal. This conclusion renders it unnecessary for me to express any concluded view as to whether the bulk extraction of 19 megalitres of water would, absent s 8(6), constitute a use of land requiring a permit. Nevertheless, for the sake of completeness, I shall record my findings in relation to this issue.

39 Mr Tweedie SC, who appeared with Ms Peppler for SPPL, submitted that the phrase ‘use of land’, which is defined in s 3(1) of the P & E Act, means a ‘real and substantial purpose’.[17] He also submitted that s 6(2)(b) of the P & E Act permits the regulation of activities which are associated with the real and substantial purpose.[18] He submitted that s 6(2)(b) is the legislative foundation of cl 52 of the IPS which requires planning permission for specific activities such as the installation of satellite dishes (cl. 52.04), heliports (cl.52.15), and post boxes (cl.52.16).[19]

40 I have no hesitation in concluding that SPPL’s proposal for the bulk extraction for 19 megalitres of water was the real and substantial purpose of its use of the land. The extraction of the water was the primary use of land. The construction of storage and transfer facilities were ancillary to this primary purpose. Absent ss 8(4) and (6) of the Water Act, SPPL would have been required to obtain a permit for the bulk extraction of the water. First, the pumping of groundwater via a bore into storage tanks is a use of land to collect water. It therefore falls within the definition of utility installation in cl 74 of the IPS and is a matter prescribed by s 2 of cl 35.07–1 as requiring a permit. Alternatively, if the collection of water by pumping groundwater into tanks via a bore is not a utility installation, it would nevertheless be ‘any other use’ not otherwise provided for in s 1 or 3 of cl 35.07–1.

41 The legislative schemes provided for by the Water Act and the P & E Act are not mutually exclusive.[20] So much is clear from the terms of s 305B of the Water Act. That section provides that when hearing an application for review of a decision under the Water Act, the Tribunal must take into account any relevant planning scheme. Section 305B supports the conclusion that the provisions of the Water Act are qualified by any relevant planning scheme.

42 In so far as there is inconsistency between provisions of the Water Act and any relevant planning scheme, it must be reconciled by determining ‘which is the leading provision and which the subordinate provision, and which must give way to the other’.[21] To the extent that there is inconsistency between ss 8(4) and (6) of the Water Act and cl 35.07– 1 of the IPS, this is resolved by reading cl 35.07– 1 as subordinate to ss 8(4) and (6).

43 If ‘expressly’ in s 8(6) of the Water Act was not used as an antonym to ‘impliedly’, I would have concluded that the provisions of the IPS do qualify the rights conferred by the Water Act. Applying a narrow construction of ‘expressly’, an intention to limit the rights conferred upon the holder of a water licence arises directly from the definition of utility installation, or alternatively, the ‘any other use’ category in s 2 of cl 35.07–1. However, ‘expressly’ in s 8(6) is used as an antonym of ‘impliedly’ and must be construed broadly. The effect of ss 8(4) and (6) of the Water Act is that the rights conferred upon the holder of a licence granted under that Act will only be qualified by a planning scheme which contains provisions which explicitly limit the rights arising under the Water Act. The permit requirements under the P & E Act and IPS are subject to, and subordinate to, ss 8(4) and (6).[22] Consequently, absent explicit words limiting the rights conferred upon a licence holder, the provisions of the IPS which would otherwise require a permit for the bulk extraction of water must be deemed not to apply in circumstances where a licence for extraction of water has been granted.[23]

Conclusion

44 Sections 8(4) and (6) of the Water Act are fatal to SRC’s application for leave to appeal. The application must be dismissed. Although there is no reference to ss 8(4) and (6) in the decision of the Tribunal, the operation of these provisions supports the Tribunal’s ultimate conclusion that SPPL did not require a planning permit for the bulk extraction of water.

45 I shall provide the parties with an opportunity to make submissions on the question of costs. I have reviewed the written submissions which were filed before the Tribunal.[24] There is no reference in SPPL’s written submissions to ss 8(4) and (6) of the Water Act. No party appears to have addressed the critical issue of the meaning of the phrase ‘expressly (and not merely impliedly)’ in s 8(6). My conclusion that this phrase requires explicit language qualifying the rights conferred on the holder of a water licence is a key component of my reasons. If no submissions were advanced before the Tribunal regarding the operation of ss 8(4) and (6), a question arises as to whether this has any bearing upon the costs of the current proceedings.[25]

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^[1] See licences annexed to Exhibit B: Affidavit of Edwin Tyrie affirmed 20 April 2016, “ET1”.

^[2] Ibid ‘Application for Planning Permit’.

^[3] Exhibit A: Bundle of documents authored by Indigo Shire Council related to the permit application process, PP14-0001, utility installation (water extraction) Cue Springs Road, Stanley, ‘Indigo Shire Council ordinary council minutes – 26 May 2015’, 58.

^[4] Stanley Pastoral Pty Ltd v Indigo Shire Council [2015] VCAT 1822.

^[5] 'Outline of Submissions on behalf of Stanley Pastoral Pty Ltd' dated 29 July 2016, [4].

^[6] Stanley Pastoral Pty Ltd v Indigo Shire Council [2015] VCAT 1822, [38]–[44].

^[7] 'Outline of Submissions on behalf of the Applicant' dated 23 May 2016, [172].

^[8] Transcript of Proceedings, Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (Supreme Court of Victoria, S CI 2015 06415, McDonald J, 10 November 2016) T48 LL11–18.

^[9] 'Outline of Submissions on behalf of the Applicant' dated 23 May 2016, [102]–[103].

^[10] The Goulburn-Murray Water Authority was exercising a power of delegation from the Minister pursuant to s 306(2) of the Water Act 1989.

^[11] Rose v Hvric (1963) 108 CLR 353, 358.

^[12] Shanmugam v Commissioner for Registration of Indian and Pakistani Residents [1962] AC 515, 527 (Lord Radcliffe).

^[13] See Rose v Hvric (1963) 108 CLR 353, 358.

^[14] [2001] HCA 49; (2001) 207 CLR 72 (‘Roy Morgan Research’).

^[15] Ibid [11] (citations omitted).

^[16] Transcript of Proceedings, Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (Supreme Court of Victoria, S CI 2015 06415, McDonald J, 14 November 2016) T215 L29 – T216 L22.

^[17] Ibid T124 LL10–15.

^[18] Ibid T156 LL14–24.

^[19] Ibid T154 L31 – T156 L24.

^[20] See Transcript of Proceedings, Stanley Rural Community Inc v Stanley Pastoral Pty Ltd (Supreme Court of Victoria, S CI 2015 06415, McDonald J, 10 November 2016) T85 LL22–24.

^[21] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70] (citations omitted).

^[22] See Butler v A-G (Vic) [1961] HCA 32; (1961) 106 CLR 268, 276.

^[23] See Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1, 14.

^[24] Exhibit B: Affidavit of Edwin Tyrie affirmed 20 April 2016, “ET10”– “ET13”.

^[25] See JGM Nominees Pty Ltd v Tulip Investments Pty Ltd (2013) 46 VR 709, [59]; Armstrong v Boulton [1990] VicRp 20; [1990] VR 215, 223; Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; (2015) 322 ALR 180, [89].