East West Link (Eastern Section) Assessment Committee Request for Information under section 57(4) of the Major Transport Projects Facilitation Act 2009 Response of the Linking Melbourne Authority 11 February 2014 1 1 Introduction On 13 January 2014 the East West Link Assessment Committee (the Committee) issued a Request for information under section 57(4) of the Major Transport Projects Facilitation Act 2009 (the Request) to the Linking Melbourne Authority (LMA) as project proponent for the East West Link (Eastern Section) Project (the Project). This document complete with Appendices A - Q contains the LMA's response to the Committee's Request in accordance with the Committee's directions dated 20 January 2014. This response adopts the same headings, sub-headings and paragraph numbering as the Request by the Committee with the specific request preceding LMA's response. This response should be read in conjunction with the Comprehensive Impact Statement (CIS) prepared by LMA for the Project which contains additional detail and technical assessments on many of the matters contained in this response. The CIS is available at: www.linkingmelbourne.vic.gov.au 2 2 Terms of Reference and assessment of scope The LMA is requested to provide its opinion on the interpretation of the following: 1. Whether the Assessment Committee (AC) is constrained by the Terms of References dated 21 October 2013 (TOR) in terms of its powers, function and discretions under ss 73(4)-(5) and 236(2) of the Major Transport Projects Facilitation Act 2009 (the Act) in any way and, if so, what way? The Committee’s first question can be broken into two parts: a. First, whether terms of reference issued by the Planning Minister under section 35(b) of the Major Transport Projects Facilitation Act 2009 (Vic) (the Act) can bear upon the operation of sections 73(4), 73(5) and 236(2) of the Act; and b. Second, if the answer to the first question is yes, whether the particular Terms of Reference issued by the Planning Minister to the Committee in this instance (the Terms of Reference) do in fact constrain the Committee in any way. It is convenient, before addressing these specific matters, to first outline the relevant statutory framework within which the Committee has been established, and within which it is required to operate. The Legislative Framework Two parts of the Act are particularly relevant in this respect: a. Division 5 of Part 3 of the Act provides for the establishment of assessment committees and describes the manner in which they are to assess comprehensive impact statements prepared in respect of declared transport projects; and b. Part 8 of the Act concerns assessment committees specifically, containing (amongst other things) the administrative provisions relating to the formation and functioning of assessment committees, as well as provisions relating to the conduct of hearings by assessment committees. The critical parts of this framework for present purposes are those concerning the establishment of assessment committees and those defining the role that terms of reference play in the assessment process. The establishment of assessment committees is governed by Subdivision 2 of Division 5 of Part 3 of the Act. Section 35 of the Act provides that, after publishing the scoping directions for a comprehensive impact statement, the Planning Minister “must”: a. establish an assessment committee in accordance with Part 8 of the Act to assess the comprehensive impact statement;1 and b. “give the assessment committee the terms of reference under which it will assess the comprehensive impact statement in accordance with this division” (emphasis added).2 1 Section 35(a). 3 It is clear as a consequence that terms of reference issued by the Planning Minister under section 35 play an important role in defining the manner in which an assessment committee is to undertake its assessment of a comprehensive impact statement. Indeed, given the strict terms of section 35,3 an assessment committee has no power to undertake its assessment of a comprehensive impact statement otherwise than in accordance with such terms of reference. The provision makes clear, in addition, that the terms of reference are to influence each aspect of an assessment committee’s assessment of a comprehensive impact statement under Division 5 of Part 3 of the Act (which, relevantly for present purposes, includes sections 73(4) and 73(5) of the Act). The matters that can be the subject of direction under terms of reference are specified in section 36 of the Act. They include, but are not limited to,4 directions concerning: a. the conduct of the preliminary hearing;5 b. “the matters which the assessment committee is to consider”;6 c. the matters that may be “under consideration at a public hearing”;7 and d. the conduct of cross-examination.8 Two observations are made in respect of this provision: a. First, that terms of reference issued by the Planning Minister are in no way limited to procedural or administrative matters, and can properly operate to define the matters that an assessment committee can consider in assessing a comprehensive impact statement. b. Second, that the Act draws a distinction between the matters that an assessment committee must consider in assessing a comprehensive impact statement, and the matters that may be considered at a public hearing conducted in accordance with Subdivision 7 of Division 5 of Part 3 of the Act. Indeed, it is clear that the Act expressly contemplates that the scope of matters that can be the subject of consideration at the public hearing can, depending on the terms of reference, be more confined than those that must be taken into account by an assessment committee in making its ultimate recommendation to the Planning Minister. As will be discussed in greater detail below, this is what has occurred here with respect to the Terms of Reference. 2 Section 35(b). 3 In particular the use of the word “will” in the context of the obligation on the part of an assessment committee to assess the comprehensive impact statement in accordance with the terms of reference. 4 Section 36(2) makes clear that the list of non-exhaustive matters identified in section 36(1) does not limit what may be included in the terms of reference given to an assessment committee. 5 Section 36(1)(a). 6 Section 36(1)(b). 7 Section 36(1)(ba). 8 Section 36(1)(c). 4 Further, terms of reference are relevant not only to the role of an assessment committee. The Act makes clear that they also determine the matters that can be validly made in public submissions concerning a comprehensive impact statement. Indeed, section 52(3)(e) provides that a submission is not properly made unless it “is within the scope of the terms of reference of the assessment committee”. The Terms of Reference and Sections 73(4), 73(5), and 236(2) of the Act The first part of the Committee’s question relates specifically to the interaction between Terms of Reference and sections 73(4), 73(5), and 236(2) of the Act. Sections 73(4) and 73(5) concern the matters that an assessment committee must have regard to in making an assessment committee recommendation. These matters include: a. the project proposal;9 b. the CIS;10 c. all properly made submissions;11 d. any issues raised in meetings and correspondence referred to in consultations undertaken pursuant to section 56 of the Act, a preliminary hearing, or a formal public hearing;12 e. the comments of the persons that were consulted in accordance with a direction of the Planning Minister;13 f. any consultation with or advice received from an applicable law decision maker;14 and g. every applicable law relevant to the declared project including the applicable law criteria under that law.15 An assessment committee may, in addition, have regard to “any other matter the committee considers relevant”.16 The fact that these matters do not expressly include any terms of reference issued by the Planning Minister does not mean that an assessment committee’s assessment of a comprehensive impact statement can proceed without regard to those terms of reference. On the contrary, for those reasons set out above, terms of reference are expressly intended to define, and / or confine, the scope of an assessment committee’s powers and obligations under the entirety of Division 5 of Part 3 of the Act (which includes sections 73(4) and 73(5)).17 Sections 73(4) and 73(5) of the Act must accordingly be read in conjunction with, and subject to, the matters specified in any terms of reference. This is made clear by section 73(2) which provides that an assessment committee “must not” make an assessment committee recommendation that is “inconsistent with the committee’s terms of reference”. 9 Section 73(4)(a). 10 Section 73(4)(b). 11 Section 73(4)(c). 12 Section 73(4)(d). 13 Section 73(4)(e). 14 Section 73(4)(f). 15 Section 73(4)(g). 16 Section 74(5). 17 Section 35(b). 5 It follows that the Act, when properly construed, requires that an assessment committee: a. must conduct its assessment of a comprehensive impact statement in accordance with any directions contained within its terms of reference; b. must, in doing so, have regard to those matters identified in sections 73(4) and 73(5); and c. must not make an assessment committee recommendation that is inconsistent with its terms of reference. The matters specified in section 73(4) and 73(5) cannot operate to expand or modify the scope of any terms of reference. Where section 74(5) provides that an assessment committee can have regard to “any other matter the committee considers relevant” in making its recommendation, those additional matters must be matters that fall within the scope of the terms of reference.