Applicant v Respondent

ADMINISTRATIVE LAW - Whether the Tribunal misconstrued and misapplied policy - Whether the Tribunal's decision was irrational or illogical or failed to give proper, genuine and realistic consideration to the merits of the case - Rees v County Court [2011] VSC 67 - Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164.

1 The applicant, Barro Group Pty Ltd ('Barro') seeks leave to appeal on five questions of law against the order of the Victorian Civil and Administrative Tribunal made on 9 June 2011 affirming the decision of the first respondent, the Brimbank City Council, to refuse a planning permit to develop and use land at Sunshine Avenue, Kealba, as a landfill for solid inert waste.

2 The land that is the subject of the permit application has an area of approximately

17 hectares and forms part of a disused basalt quarry. The balance of the quarry site has been developed as a materials handling and recycling facility and a concrete batching plant. The proposed landfill is on the eastern side of Sunshine Avenue, north-east of the intersection with Main Road East, St Albans. Residential areas are located immediately to the west of the site, on the opposite side of Sunshine Avenue, and to its north, in Orbital Drive. Given the proximity of the proposed landfill to residential areas, residents are understandably concerned about the proposal. Many of them actively opposed the grant of a permit.

3 However, Barro has already gone some distance to developing the site for the purposes of accepting solid inert waste. In 1999, the Council issued a planning permit allowing for the 'rehabilitation and end use of the land upon completion of the current extractive industry operation' (the '1999 planning permit'). In 2002, the Environment Protection Authority ('EPA') issued a Works Approval[1] for a solid inert landfill under the Environment Protection Act 1970 (Vic) (the 'EP Act'). On the basis of these approvals, Barro has prepared two cells (Cells 1A and 2A) to receive waste.

4 Further, in 2009, the proposed landfill, referred to as 'Barro Keabla', was included in the Metropolitan Landfill Schedule (the 'Landfill Schedule'), which forms Part 3 of the Metropolitan Waste and Resource Recovery Strategic Plan 2009 (the 'Strategic Plan') made under s 50B of the EP Act by the Metropolitan Waste Management Group (the 'MWMG'), which has the function of assessing the need for and planning for municipal waste management infrastructure and landfills in the metropolitan region.

5 According to the Landfill Schedule, the Barro Kealba landfill was scheduled to come on line in 2009.

6 In early 2009, a dispute arose between Barro and the Council as to whether the 1999 planning permit had lapsed. Barro contends that the 1999 planning permit remains valid, and the challenge to its validity is the subject of separate proceedings. Nonetheless, in June 2009, Barro made a new planning permit application to Council, apparently on the basis that the grant of a new planning permit with comprehensive conditions would have significant benefits over the limited controls provided in the 1999 planning permit. In August 2010, the Council refused Barro's permit application on grounds relating to community amenity (dust, odour, noise) and the lack of adequate buffers, because the geology and hydrology of the site was inappropriate for the proposed use and development, and because there were problems with the uplift of the compacted clay liner. [2] It concluded that the proposal to develop and use the site for landfill did not satisfy the requirements of the Brimbank Planning Scheme in relation to matters such as environmentally sensitive areas, noise and air, catchment planning and management, water quality, environment, waste and resource recovery.

7 On review, the Tribunal also refused the permit application, although not on the same grounds.[3]

8 Before the Tribunal, the Residents Against Sunshine Kealba Quarry Inc appeared by counsel, and led evidence and made submissions concerning the need for the proposed landfill. Mr David Maltby, a geotechnical engineer and waste management consultant, gave expert evidence on whether there was any need for a further landfill to service metropolitan Melbourne and on the process by which the Barro Kealba site came to be included in the Landfill Schedule.

9 In deciding to refuse the grant of a permit, the Tribunal referred to the evidence and submissions on the need for further landfill capacity and emphasised what it identified as the policy of 'minimising landfills'. It did not refuse the application on the environmental and amenity grounds relied upon by the Council. It found, 'in principle', that off-site amenity impacts could be managed to minimise impacts on residents to an acceptable degree[4] and that, although the proposal did not comply with requirements for buffer distances, ground water and surface water requirements, the proposed design and management regime could result in outcomes to satisfy the EPA.[5] It refused the permit because the proposal did not pass the test of providing a net community benefit and sustainable development for the benefit of present and future generations.

10 The Tribunal's consideration and determination of the permit application was governed by the requirements of the Planning & Environment Act 1987 (Vic) (the 'P&E Act') and the Brimbank Planning Scheme, and it was common ground that it was required to have regard to a suite of policies relevant to the siting and management of landfills, including:

(a) the Waste Management Policy (Siting, Design and Management of Landfills) 2004 (the 'Waste Management Policy');

(b) the Towards Zero Waste Strategy 2005 (the 'TZW Strategy');

(c) the Best Practice Environmental Management Guideline (Siting, Design, Operation and Rehabilitation of Landfills) (the 'BPEM'); and

(d) the Strategic Plan (which includes the Landfill Schedule).

11 The question arises as to how these policy documents were to be applied or considered by the Tribunal, having regard to the role and function of the MWMG and the legislative and policy framework as a whole. A central issue in the appeal is whether the Tribunal's consideration of the need for further landfill capacity and its application of the policy that it identified of 'strongly discouraging landfill development' were consistent with the legislative and policy framework for the siting and development of landfills.

12 The Tribunal proceeded on the basis that the need for additional landfill space was an appropriate consideration in a planning permit application for a new landfill. It stated that it was not required to undertake a full investigation of metropolitan landfill requirements, but should take account of landfill policy and its direction that 'strongly discouraged the establishment of new landfills'.[6]

13 Barro does not dispute that the need for a new landfill may be a relevant consideration for a responsible authority. The question is whether the legislative and policy framework impliedly limits the extent of or otherwise shapes the responsible authority's inquiry in relation to the need for a particular landfill. Barro submits that the EP Act, the Waste Management Policy and the BPEM create a comprehensive regime for the regional assessment of the need for landfills over at least a ten year period, and that it was not the Tribunal's role to go behind the Landfill Schedule and conduct its own inquiry into whether the proposed landfill was needed.

14 For its part, the Council submits that the relevant controls and statements of policy did not constrain the Tribunal in its consideration of need. To the contrary, they required need to be considered by the Tribunal. Moreover, when the Tribunal considered need, it had before it evidence in addition to the statements as to need in the Landfill Schedule. The Tribunal was therefore properly able to conclude that there was no demonstrated need for the Barro Kealba site.

15 The issue is to be resolved by reference to the Tribunal's powers when exercising the discretion to grant or refuse a planning permit and the legislative and policy framework for the siting and management of landfills.

16 For the reasons that follow, the decision of the Tribunal contains vitiating error. Barro should have leave to appeal, and its appeal should be allowed. Paragraph 3 in the Tribunal's order affirming the decision of the responsible authority and refusing permit application P733/2009 must be set aside and the proceeding remitted to the Tribunal to be determined according to law.

17 In its draft notice of appeal dated 5 July 2011, Barro identified the following questions of law:

(1) Did the Tribunal err in its consideration of 'need' in the light of a proper construction of the statutory regime established for the scheduling of landfills created by the EP Act and the Waste Management Policy?

(2) Did the Tribunal err in failing to give Barro natural justice by failing to bring to its attention the Tribunal's intention to rely on the TZW Strategy as to need or as a source of 'landfill policy' in circumstances where that document was not relied upon for those purposes by any party and was not the subject of submission in that regard?

(3) Did the Tribunal err in misconstruing the role, status and scope of the TZW Strategy by relying on it for support for the proposition that 'policy about need' recommends against the development of new landfills?

(4) Was the Tribunal's order so unreasonable as to be an order that no reasonable tribunal could reach?

(5) Was the Tribunal's order irrational, illogical and not based on findings or inferences supported by logical grounds?

(6) Did the Tribunal fail to give proper, genuine and realistic consideration to the merits of the case?

18 The question of law based on Wednesbury[7] unreasonableness was not pursued at trial.

19 A number of grounds of appeal supported each question of law. In substance, Barro contends that:

(1) The Tribunal misunderstood the statutory and policy regime for the determination of need for landfills;

(2) The Tribunal misconceived the TZW Strategy, insofar as it identified the goal of the Strategy as being the minimisation of landfills;

(3) The Tribunal failed to give Barro notice of its construction of the TZW Strategy and its construction of the statutory and policy regime for the determination of need, failed to give Barro the opportunity to make submissions on those matters and denied it natural justice;

(4) The Tribunal failed to give proper, genuine and realistic consideration to:

(a) the statutory and regulatory regime established for the determination of whether there is a need for a particular landfill; and

(b) the net community benefit and the balancing of factors relevant to its decision;

(5) The Tribunal's decision is irrational, illogical and not based on findings or inferences supported by logical grounds, in that the Tribunal found there were no amenity or environmental reasons to refuse the permit and did not balance those matters against its finding that there is a policy to minimise landfills, which finding was in turn made on the basis of statements which do not support the conclusions stated by the Tribunal.

20 Before considering the competing submissions on the grounds of appeal, it is necessary to set out in some detail the legislative and policy framework in which the Tribunal's decision regarding the use and development of the land for landfill was required to be made.

21 The P&E Act confers on the Tribunal jurisdiction to review the exercise of the planning discretion by the responsible authority, including a decision to refuse the grant of a planning permit,[8] and establishes the parameters for the conduct of the review.

22 Section 84B of the P&E Act specifies the matters to which the Tribunal must have regard when exercising its discretion. These include the relevant planning scheme[9] and, importantly, any relevant State environment protection policy.[10] Section 84B(2)(e) requires the Tribunal to take account of and give effect to any relevant State environment protection policy. The Waste Management Policy is one such policy.[11]

23 The State Planning Provisions include a policy for 'waste and resource recovery.' The objective of cl 19.03-5 of the Brimbank Planning Scheme is to 'avoid, minimise and generate less waste to reduce damage to the environment caused by waste, pollution, land degradation and unsustainable waste practices.' Clause 19.03-5 says little about landfill siting and management. Nonetheless, it requires consideration in planning for waste and resource recovery to be given, relevantly, to the TZW Strategy, the Waste Management Policy, the BEPM and the Strategy Plan. What this means, as Barro pointed out in its submissions, is that the relevant policy documents guide the Tribunal's decision-making, but do not bind it. It is a matter for the Tribunal as to the weight to be given to these documents. The qualification to this general position is the requirement to 'give effect to' the Waste Management Policy in s 84B(2)(e) of the P&E Act.

24 Moreover, in giving effect to the Waste Management Policy, the Tribunal was required to have regard to the legislative arrangements for landfill siting and management, including the scheme for the preparation of the Strategic Plan and Landfill Schedule in the EP Act, and to the relevant environment protection principles, such as the wastes hierarchy, contained in the EP Act.

25 The EP Act makes specific provision for landfill planning and siting, and provides the context in which the policies relating to landfill siting in the Waste Management Policy and the BEPM are to be understood. Part IX of the EP Act provides for the formation of waste management groups and the preparation of waste management plans.

26 The Strategic Plan is made pursuant to the provisions of Part IX of the EP Act. The objective of the Strategic Plan is to provide a long term vision for the management and reduction of waste in metropolitan Melbourne, to identify short term and long term waste infrastructure needs and schedule the development of landfill sites.[12] Section 50B of the EP Act provides for the Strategic Plan to be made up of three parts: the Metropolitan Plan, the Municipal Solid Waste Infrastructure Schedule and the Landfill Schedule.

27 Pursuant to s 50BA, the purpose of the Metropolitan Plan is to set the strategic framework for the management of all solid waste in metropolitan Melbourne. Among other things, the Metropolitan Plan must:

(a) include an analysis of the long-term trends for the generation, management and reduction of municipal solid waste, construction and demolition waste and commercial and industrial waste;

(b) identify future waste volumes and processing needs;

(c) include a strategic analysis of existing infrastructure and services for waste management and resource recovery of materials and energy; and

(d) identify options for waste minimisation and resource recovery, waste collection and transport and waste disposal and provide a social and economic assessment of the options identified.

28 In this context, s 50BC requires the landfill schedule to identify the location and sequence for the filling and operation of landfill sites. It must:

(a) specify the proposed sequence for the filling of available landfill sites for at least the next ten years;

(b) include a program for replacing and rehabilitating existing landfill sites;

(c) list the intended or likely date of closure of each landfill site; and

(d) identify options for future landfill capacity.[13]

29 A landfill schedule prepared pursuant to the requirements of the EP Act is therefore directed to identifying present and future need for landfill in the relevant region.

30 The role and function of the relevant waste management group, the MWMG,[14] is set out in Division 2AC of Part IX of the EP Act. The objectives of the MWMG are to plan, coordinate and facilitate metropolitan councils' procurement of waste management and resource recovery services.[15] Its functions include assessing the need for and planning for municipal waste management infrastructure and landfills in metropolitan Melbourne.[16]

31 The EP Act therefore contemplates that a regional/metropolitan body with a regional/metropolitan perspective will identify and establish a sequence for the filling and operation of landfill sites in the region/metropolitan area based on the anticipated need for landfill over the longer term. This is an exercise that requires the regional/metropolitan body to carefully consider the need for landfill capacity in the future and the means of best accommodating the need identified.

32 The EP Act also provides for the issuing of works approvals for scheduled premises, including premises where waste is to be deposited. Section 19B(3)(a)(iii) requires the EPA to refer an application for a works approval to the responsible authority administering the planning scheme that applies to the relevant land; s 19B(4A) requires the responsible authority to inform the EPA whether the proposed works are allowed or prohibited by the planning scheme, whether a permit is required or has been issued or is under consideration. Section 19B(7A) provides that if a permit is required but has not been issued, any works approval must be issued subject to the condition that it does not come into effect until a copy of the permit is served on the EPA by the applicant.

33 The Waste Management Policy was made pursuant to Part III of the EP Act. It is a waste management policy declared by the Governor in Council under s 16A of the EP Act and a State environment protection policy for the purposes of s 16 of the EP Act. Section 84B(2)(e) of the P&E Act requires the Tribunal to have regard to and to give effect to any relevant State environment protection policy.

34 The Waste Management Policy requires municipal councils, planning authorities, responsible authorities and others to pursue the objectives and apply the principles and intent of the Policy when making decisions and formulating strategies, plans and programs that may affect existing or proposed landfill sites in Victoria.[17] Pursuant to cl 10(5), waste management groups are to ensure regional plans are consistent with and assist the implementation of the Waste Management Policy, including minimising the development and use of landfills.

35 The Waste Management Policy is replete with objectives, principles and intentions. A key objective is to drive more efficient use of resources through the whole lifecycle of goods and services. Landfills represent the least preferred waste management option. As a general principle, the disposal of waste to landfill must be minimised. However, landfills will be required for the foreseeable future to manage wastes that cannot currently be recycled or re-used. Future landfill development should therefore be minimised, taking into account the policy principles.[18]

36 Policy principles include 'shared responsibility' for the protection of the environment by all levels of government and industry, business, communities and the people of Victoria[19] and a waste management hierarchy which has 'avoidance' at the top and 'disposal' at the very bottom.[20] Pursuant to cl 9, the development and use of landfills for the management of waste in Victoria is to be minimised, consistent with policy principles[21] and solid industrial waste management plans, regional waste management plans and municipal strategic statements are to be consistent with each other, particularly with regard to the planning for and siting of landfills.[22]

37 Clause 11 concerns 'Strategic Land Use Planning'. It states:

(1) All persons involved in the planning and siting of landfills must comply with the provisions of each relevant regional waste management plan and any SIWMP.[23]

(2) Each planning scheme amendment or any review of a municipal strategic statement by a planning authority must be consistent with the policy, any SIWMP, and each relevant regional waste management plan, especially with regard to landfill siting and scheduling.

(3) In considering a planning permit application in relation to an existing or proposed landfill site, responsible authorities must make decisions consistent with the policy and the BPEM, especially with regard to landfill site selection.

38 Accordingly, both the Council and the Tribunal were required by cl 11(3) to exercise the planning discretion with respect to Barro's permit application consistently with the Waste Management Policy and the BEPM.

39 Clause 12 of the Waste Management Policy, which concerns waste management planning, is expressed to apply to regional waste management groups. It requires, among other things, that in developing a schedule for the proposed sequence for filling of available landfill sites, each regional waste management group consider the potential to use available airspace in surrounding regions. Clause 13, which concerns landfill site selection and sets out the siting considerations for landfill contained in the BEPM, is expressed to apply only to regional management groups. Those siting considerations are to be taken into account in what the Policy describes as 'the strategic planning and siting of prospective landfills' by regional waste management groups.

40 The siting considerations are central to the approach taken by the Tribunal to the question of need. They are described fully in the context of the BEPM.

41 The original BPEM was published in October 2001. It was re-issued in 2010, and that is the version to which the Tribunal had regard.

42 The BEPM describes its 'audience' as landfill operators, planning authorities, regulators, waste management groups, local government and private operators managing the rehabilitation of closed sites and the broader community. Although the audience does not include responsible authorities, the Waste Management Policy requires responsible authorities to make decisions that are 'consistent with' the BEPM.[24]

43 For present purposes, the relevant part of the BEPM is Part 5, which describes 'best practice siting considerations', the objective of which is 'to establish the means and criteria for identifying and ranking those sites for locating a proposed landfill'.

Part 5 contemplates than an investigation of sites for landfill will be conducted by the regional waste management group during the development of the regional waste management plan and that such investigation will be undertaken in two steps: first, the broad identification of candidate sites for a new landfill from a wider range of all possible sites; secondly, the ranking of candidate sites in terms of their preference for use as landfill. The investigation by the regional waste management group is therefore to result in a ranking of preferred waste disposal sites within and adjacent to the region. The development of new landfills should occur in accordance with this ranking and it should be used in the development of planning strategies for municipalities within the region.

44 It will be observed that in this way the BEPM picks up and builds upon the regional structure for landfill assessment and development in the EP Act.

45 The hierarchy of aspects to be considered in landfill siting (including 'community needs') is contained in Part 5.1 of the BEPM. The hierarchy is to be considered 'when screening for candidate landfill sites'. That screening or investigation involves, as has been noted, preparing a list of all possible sites and, once a list of candidate sites has been derived from a list of all possible landfill sites, ranking them to indicate the preferred order of development.

46 The hierarchy of 'aspects' for the screening of candidate landfill sites is as follows:

47 'Community needs' is not defined. However, the BEPM discusses each of the matters listed in the siting hierarchy under separate headings. Thus, in the 2010 BEPM, cl 5.1.1 deals with 'Community needs'. It states:

Regional Waste Management Groups are responsible for providing a framework for the orderly development of waste management facilities for both the public and private sectors, and ensure that a reliable system of waste management, including landfill space, is maintained within the region.

The community expects the amenity and safety aspects of a landfill to be addressed during the operation and post-closure period. This should be considered at a very early stage, and where necessary, particular care should be used to construct bunds for visual screening, noise barriers and landscaping and to ensure that landfill is designed and managed taking into account environmental and safety outcomes.

It is also important to liaise with the community very early in the planning stage. Communities will have different needs, abilities and interests in participating in decisions about the siting, design, operation and rehabilitation of landfills. Effective and early engagement enables identification of the issues that are important to the local community and environment that affect siting, design and operation of the landfill.

Engagement also unlocks the significant amount of local knowledge, often providing insights into how better environmental outcomes may be achieved. There may be community driven reasons why one site may be selected above others. Full community engagement is expected for any project that may have an impact on the community ...

48 'Community needs' therefore embraces a number of different needs flowing from the community's expectation that there will be a framework for the orderly development of waste management facilities and a reliable system of waste management, and that amenity and safety aspects will be addressed in landfill siting.[26] Noise barriers and landscaping are referred to in the latter context. The community need for safety and amenity, as opposed to the larger, strategic issue of the regional need for landfill space, is plainly encompassed in the criterion of 'community needs' in the BEPM. Apart from the early reference to the need to maintain 'a reliable system of waste management', there is no further reference to the need for landfill space per se. 'Community needs' is therefore a somewhat vague siting criterion that seems to be largely directed to community amenity and safety, and community consultation.

49 The 2001 BEPM commences with a sentence that does not appear in the 2010 version:

A landfill should not be located where it is not needed for the disposal of a community's waste.

50 In my view, the absence of this statement in the 2010 BEPM reflects the fact that 'need' of this kind is to be assessed on a regional rather than community basis. The waste disposal needs of 'a' community do not dictate the siting of landfill in that community.

51 The Landfill Schedule was prepared by the MWMG and forms part of the Strategic Plan. It covers a ten year period to 2017-18, but is subject to four yearly review. To determine the sites for the period under consideration, the MWMG assessed the projected need for landfill in the metropolitan area and compared it to the capacity of the sites then scheduled for development. It also identified options for future landfill capacity in accordance with the requirements of the EP Act.[27]

52 The Landfill Schedule analyses landfill capacity on the basis of historical regional trends, cross-regional disposal and air space consumption projections, and future landfill needs. It compares the projected volume of wastes to landfill to available air space to derive landfill life expectancy, and considers the issue of transportation in scheduling and ranking sites. The Schedule does not provide one or more putrescible or solid inert landfills in each of the former regions to guarantee security of air space or 'one for one' replacement for landfill sites. The sites that have been included in the Schedule are said to be sufficient to meet the demand for landfill space in the metropolitan region.

53 The Landfill Schedule records that the MWMG evaluated air space availability compared to filling rates, developing various scenarios, and concluded that even a conservative waste reduction scenario did not indicate the need for any additional landfill sites. The Schedule anticipates that a number of existing sites will close during the next ten years, but that there will be adequate air space available at the other scheduled sites to cater for the waste disposal needs of metropolitan Melbourne. Although the Landfill Schedule does not include any new sites, the EP Act requires the identification of options for future landfill capacity. In this context, the Schedule notes that there is substantial air space capacity in the north and west of Melbourne for many decades, but that potential sites must be identified so that appropriate land use planning can protect options for landfill where it is required.

54 Appendix N comprises a sequencing of scheduled landfill sites for different types of waste in the south east and the north and west. The Barro Kealba site is included in the scheduled sites for the north and west area for solid inert landfill. It is fourth in line, scheduled to come on line in 2009. At the time the Schedule was prepared, the first two of the four scheduled landfills in the same category were due to cease operating in 2012. A note for the Barro Kealba site states that works approval has issued and that the issue of a licence is subject to meeting works approval requirements.

55 In its overview, the Landfill Schedule refers to the objective in the Waste Management Policy that the development and use of landfills for the management of waste in Victoria be minimised and makes the following comment:

This requirement of the policy means that those scheduled landfills that are not currently operating should not come into operation until the closure or imminent closure of existing operating landfills in their relevant subregion has created a demonstrable need for new landfill space.[28]

56 Further on, the same idea is expressed in slightly different terms as follows:

Consistent with the Waste Management Policy (Siting, Design and Management of Landfills), works approvals and licences allowing the development of new landfills (or new cells of existing landfills) should not be granted until the closure or imminent closure of existing operating landfills in their relevant subregion has created a demonstrable need for new landfill space.[29]

57 In respect of two non-operational scheduled sites, including Barro Kealba, the Schedule states:

The Barro Kealba solid inert landfill site, which was scheduled in the 1997 Western Regional Waste Management Plan, has been included as a scheduled site in this Schedule. It had a works approval issued in 2002 and the owners will apply for a licence in the near future.

The SBI Cranbourne site was included in the previous Schedule. Inclusion in the Schedule does not mean that a site is guaranteed to become a landfill. The Schedule identifies potential sites that have been through the first stage of a multi-staged screening process.[30]

58 The Landfill Schedule has been formulated on the basis that the Barro Kealba site has works approval and will shortly become the subject of an application for a licence to operate as landfill. However, the Schedule also contemplates further assessment of the need for a scheduled but non-operational site to become operational, at least by reference to the SBI Cranbourne site. The screening process for landfill sites is described as 'multi-staged'.

59 The TZW Strategy was published in 2005. It establishes 'goals' and 'directions' for Victoria's solid waste management and resource recovery framework and sets State-wide objectives and targets aimed at minimising the amount of waste generated and maximising opportunities for re-using materials. It contains a range of initiatives for this purpose.[31] The Strategy focuses on the recycling and recovery of waste and a diversion of waste from landfill, and contemplates that landfill sites will become repositories for largely inert materials from which resources have been recovered.

60 However, among other things, the TZW Strategy recognises that:

(a) Under even the most optimistic waste reduction scenarios, landfills will be required for many years to come;

(b) Well managed landfills can be used to rehabilitate former quarries where environmental and social risks can be reduced to meet community standards;

(c) It is desirable to have fewer, well located and managed landfills, rather than many smaller ones which would not be commercially viable if they had to meet the standards required to protect the environment and the community; and

(d) In most areas of Victoria, existing sites provide sufficient capacity for at least the next ten to twenty years, but in some regions there is a shortage of suitable space.

61 Moreover, the Strategy anticipates that increasing landfill costs and growth in recycling will result in a net reduction in the amount of waste going to landfill and that this will help to prolong the life of current landfills.

Did the Tribunal err on question of the need for landfill?

62 It is Barro's contention that, given the framework established by the EP Act, the Waste Management Policy and the BPEM, it was not for the Tribunal to 'go behind' the Landfill Schedule and determine that there was not, in fact, a need for the Barro Kealba landfill. That is not to say that a responsible authority may not consider the question of need on a permit application. However, that question is to be approached having regard to the findings and conclusions of the relevant regional waste management group in the relevant landfill schedule.

63 According to Barro, the effect of cls 11, 12 and 13 of the Waste Management Policy is that, in preparing a waste management plan, regard is to be had to any relevant provisions of the planning scheme, as well as the views of the local council. However, once the waste management plan has been finalised and a landfill schedule is in place, the planning regime is to assist in the implementation of the regime for the siting and scheduling of landfills established by the Waste Management Policy, the BPEM, and the waste management plans. By requiring the responsible authority to make planning permit decisions for proposed landfills that are consistent with the relevant waste management plan and the BPEM, cl 11(3) of the Waste Management Policy calls up the regime created by the Policy and the BPEM, in which control over the siting and scheduling of landfills is vested in waste management groups (in this case, the MWMG).

64 The Tribunal held that because of the policy of minimising landfills and because 'community needs' is the first aspect in the hierarchy for siting landfills in the BEPM, lack of need for a landfill could be a ground for refusing a permit.[32] It therefore embarked upon a consideration of the need for the Barro Kealba landfill. It had regard to evidence as to the need for additional landfill capacity in the metropolitan region (Mr Maltby) and the nature of the assessment that was undertaken of the need for the Barro Kealba landfill in the preparation of the Landfill Schedule (Mr McIntosh and Mr Maltby), and to what the Schedule itself revealed about landfill capacity in the metropolitan area.[33]

65 The existence of the Works Approval appears to have significantly influenced the approach taken by the Tribunal to the question of need. It stated that in other circumstances it might accept the proposition that the issue of a works approval in accordance with the relevant regional waste management plan was sufficient to establish demonstrable need for the landfill and that there was no justification for a responsible authority reviewing landfill siting once a works approval had been given, but not in this case.[34]

66 In considering the question of need, the Tribunal -

(a) made reference to evidence given by Mr McIntosh and Mr Maltby that sites with works approvals were not reviewed before being included in the Strategic Plan;[35]

(b) observed that the inclusion of the Barro Kealba site in the Strategic Plan appeared logical, given that a planning permit and works approval for it were in place when the Strategic Plan was being prepared;[36]

(c) reproduced passages from the Strategic Plan which it said showed a 'consistent theme of the lack of need for the development of more landfills';[37]

(d) set out a summary of the evidence of Mr Maltby (for the residents) concerning the copious air space available for landfill in Melbourne relative to actual demand and the target amounts of waste set out in the TZW Strategy and thereby recorded the evidence that:[38]

(i) the airspace available for landfill in Melbourne is likely to increase, as the three largest landfills are co-located with basalt quarries;

(ii) in addition, the Maddingly Brown Coal landfill outside the metropolitan region is available and has 10 million cubic meters not included in the Strategy Plan;

(ii) with ongoing quarrying, reserves will continue to increase, giving Melbourne more than 100 years of landfill space.

67 Having thus described Mr Maltby's evidence, the Tribunal said:

Despite Mr Gobbo's contention to the contrary, the need for the development of additional landfilling space is an appropriate consideration as part of a planning permit application for a new landfill. It does not mean that we have to undertake a full investigation of metropolitan landfill requirements, rather that we have to take account of landfill policy and its direction that strongly discourages the establishment of new landfills.[39]

68 Barro rightly points out that the Tribunal did not actually make any findings as to need. It appears from the foregoing passage that the Tribunal proceeded to determine the matter before it on the basis a policy direction that involves discouraging the establishment of new landfills. However, such a policy, while not expressly referring to need, must be taken to require consideration of need: new landfills are discouraged in the sense that they should only be permitted if they are needed to satisfy demand.

69 In submissions that were also adopted by the residents, the Council argued that a responsible authority is not constrained in its consideration of need for a new landfill site by the views or conclusions of a waste management group. The State planning policy framework[40] provides for the siting and management of waste disposal and resource recovery facilities to occur in accordance with the Waste Management Policy. Policy guidelines also direct planning authorities to consider as relevant a number of documents, including the TZW Strategy.

70 According to the Council, the Waste Management Policy envisages that a responsible authority will consider a proposal for a new landfill in the context of strategic land use planning. If it was to be constrained in the broad range of considerations normally relevant to strategic land use planning, the Waste Management Policy would have so provided. Further, cl 11(2) of the Waste Management Policy requires planning schemes to be amended to reflect waste management plans. The Brimbank Planning Scheme, in its present form, requires a permit for landfill and, as a result, all relevant matters must be considered.

71 As to the BPEM, the Council submits that although the siting considerations in cl 5.1 of the BEPM are to be applied by the waste management group when it identifies and ranks sites, the BPEM also requires the siting considerations to be implemented by planning authorities in their planning for current or future landfill sites. Regional waste management groups are required to evaluate existing and prospective landfill sites by taking into account a range of siting considerations, including landfill type, buffer distances, flora and fauna, infrastructure and land ownership. These are matters that would generally also be considered by a responsible authority on a permit application.

72 The Council and the residents submit that the identification of a particular role for the waste management groups does not limit the force or effect of the Waste Management Policy or its implementation by responsible authorities. Waste management groups are to have a regional perspective. The planning scheme directs responsible authorities to have regard to and be guided by that perspective. However, there is nothing in the Waste Management Policy or any regime which predetermines the exercise of the decision-maker's discretion under the P&E Act. Accordingly, although it is the specific task of the waste management group to apply the siting hierarchy, each council must also apply the hierarchy when considering an application for planning approval for a new landfill site. As the siting considerations in the BEPM are not limited to 'community needs', there is no logical reason why the framework should preclude the responsible authority considering need when it is able to consider the other aspects in the BEPM siting hierarchy.

73 As to the Landfill Schedule itself, it is submitted that it is clear from the terms of the Landfill Schedule that:

(a) need is an important consideration in determining whether a site is to be identified for operation as landfill;

(b) listing of a site in Appendix N is not determinative of whether there is a need for that site to operate as a landfill;

(c) even if a site is listed in Appendix N, it is still necessary to investigate whether there is a need for the site before allowing it to operate as a landfill.

74 According to the Council and residents, the Schedule identifies potential sites that have been through the first stage of a multi-staged screening process. It makes clear that a proper application of the Waste Management Policy requires an investigation before a new site commences operation. While that investigation would normally be done before a works approval issues, the Barro Kealba site's inclusion in the Landfill Schedule was not the subject of review due to its particular history.

75 The Council and residents say further that it is clear from the Landfill Schedule itself that, among the scheduled sites, those that are not yet operating are not required to meet demand during the period of the document. An analysis of the supply of landfill air space and the demand for that space shows that after ten years, without allowing for any reduction in the annual volume of waste generated, there will still be well over ten years' supply of air space for solid inert waste and for putrescible waste in the region. They point, in particular, to statements in the Landfill Schedule[41] to the effect that adequate air space is available at other scheduled sites, notwithstanding some closures, to cater for the waste disposal needs of metropolitan Melbourne and that works approvals and licences allowing the development of new landfills (or new cells of existing landfills) should not be granted until the closure or imminent closure of existing operating landfills has created a demonstrable need for new landfill space.

76 It is uncontroversial that the Tribunal was required to make its decision in a manner that was consistent with the Waste Management Policy and the BEPM. Failure to do so would constitute an error of law, notwithstanding the broad nature of the planning discretion.

77 It is also clear that the EP Act, the Waste Management Policy and the BEPM contemplate that the need for landfill development will be determined on a regional basis, and that the identification and sequencing of sites will be carried out by a regional waste management group (or, in this case, MWMG) based on the predicted need for landfill space in the region in the future. Such need is not to be determined on a municipality by municipality basis. Indeed, the regional waste management group can look to other regions to satisfy the demand for landfill space generated in the region with which it is concerned.

78 The regional and cross-regional nature of the inquiry into the need for landfill is reinforced in the BEPM, which contains a section directed to establishing the means and criteria for identifying and ranking sites for landfill by regional waste management groups (or, in this case, MWMG). The 'screening' referred to in Part 5.1 of the BEPM, which requires consideration of the aspects in the siting hierarchy, including 'community needs', is a job that is to be carried out by a regional waste management group.

79 The purpose and nature of this task is described in the BEPM. The section headed 'Community needs' commences with statements that regional waste management groups are responsible for providing a framework for the orderly development of waste management facilities for both public and private sectors and that they are intended to provide a reliable system of waste management, including landfill air space, within the region. It follows that the responsibility for ensuring that the community's need for landfill is met rests with regional waste management groups (or, in this case, the MWMG). It is not the responsibility of any local council to ensure that the regional need for landfill can be satisfied.

80 Accordingly, the requirement in the Waste Management Policy for responsible authorities to make decisions in relation to landfill siting consistently with the Policy and the BEPM requires such decisions to be made consistently with the fact that both the Waste Management Policy and BEPM contemplate that assessment of the need for landfill development will be carried out on a regional basis by regional waste management groups or the MWMG, as appropriate.

81 However, a responsible authority is not precluded from considering the various aspects in the BEPM siting hierarchy, including 'community needs'. As discussed, 'community needs' does appear to encompass, but is not exhausted by, the need for landfill space to meet regional demand. The need for additional landfill may be the subject of consideration by the responsible authority, but such consideration must have regard to the legislative and policy framework that confers on regional waste management groups the responsibility for identifying the location and sequence for the filling and operation of landfill sites.

82 As a result, the starting point for any consideration by a responsible authority of the need for a particular landfill development should be the sequencing in the landfill schedule, which reflects the conclusions reached by the relevant waste management group about the need for landfill development in the region over the period of the waste management plan. It would not be consistent with the Waste Management Policy or the BEPM, and it would be to fail to give effect to the Waste Management Policy, for a responsible authority to ignore the identification and ranking of landfill sites in a landfill schedule and to simply substitute its own assessment of the regional need for the landfill in question.

83 In their submissions to the Court, the Council and the residents argued that the Tribunal's determination to refuse a permit was amply supported by information in the Landfill Schedule and the evidence given by Mr Maltby. They contended that information in the Landfill Schedule and the evidence of Mr Maltby allowed the Tribunal to reach conclusions about the need for a further operating landfill. Senior counsel for the Council submitted that it was open to the Tribunal to conclude that there was more than one hundred years' airspace available before demand would catch up.[42] He told the Court:

Now when you go through this document [the Schedule] itself it clearly demonstrates that there is no [demonstrable need for new landfill airspace] and will not be for the life of the Schedule, the ten years, and certainly when you look at the document and then you apply the evidence of Mr Maltby, it's readily apparent on its face that there won't be a need for a long period of time.[43]

84 This was submitted to be so, even with the closure of the Bulla and TPI sites that precede Barro Kealba in the relevant part of the Landfill Schedule, because there is so much airspace available at the sites in Schedule N that accept putrescible waste.[44] The submissions on behalf of the residents were to similar effect.

85 Furthermore, according to the Council and residents, the only reason that the Barro Kealba site was included in the Landfill Schedule was because of its 'historical migration'[45] from an earlier landfill schedule or because it already had a works approval. Senior counsel for the Council told the Court:

We then know that based on the Schedule itself, and the fact that they [the MWMG] looked at 41 other sites and didn't put any of them in there because they came to the conclusion that there was no such need, then the only reason that this site is being included is because of the pre-existing history of the site.[46]

86 It is the case, as both the Council and the residents pointed out, that the Landfill Schedule itself states that a scheduled site will not necessarily become an operating landfill and that the scheduling of a site is not determinative of the need for it to become operational at any given time. The Landfill Schedule recognises that, given the policy of minimising landfills, 'demonstrable need' should be established before a works approval or a licence is granted. Hence, the Landfill Schedule refers to a 'multi-stage screening process' and contemplates that the EPA will make an assessment of whether there is a 'demonstrable need' for the landfill when considering giving works approval or a licence to a scheduled but non-operational site.

87 In this case, there will be no opportunity for the EPA to make such an assessment upon a works approval application. It is not clear whether such an assessment could be made in relation to the foreshadowed licence application. It was submitted that the Barro Kealba site is in an anomalous position by reason of its peculiar history of obtaining approvals. The Tribunal plainly took the view that in the particular circumstances of the permit application, it should do what the EPA might otherwise have done, and assess whether there was any need for the landfill in question.

88 In the circumstances, the Tribunal was not precluded from considering whether there was a 'demonstrable need' for the Barro Kealba site to become an operational landfill. However, it does not appear to me that the Tribunal carried out such an assessment. The Tribunal made no reference to the sequencing of landfill developments in the relevant category over time. It did not mention rates of filling or the closure of the landfills in the relevant category or whether the anticipated sequencing was occurring on schedule. Principally, on the question of need, the Tribunal appeared to focus on the evidence of Mr Maltby about the amount of available airspace in and around Melbourne generally.

89 To the extent that the Tribunal's decision to refuse the permit was based on there being no need for the proposed Barro Kealba landfill because there is, simply put, plenty of airspace for landfill in and around Melbourne, the Tribunal has 'gone behind' the Strategy Plan and has disregarded the sequencing of sites for which the Landfill Schedule provides in accordance with s 50BC(2)(a) of the EP Act. This approach carries with it the conclusion, in effect, that the MWMG did not do what it was required to by the EP Act, the Waste Management Policy and the BEPM and that the Barro Kealba site should not have been included in the Schedule in the first place. A decision made on this basis would not be consistent with the Waste Management Policy or the BEPM as required by the Waste Management Policy. This constitutes an error of law.

90 This is so, notwithstanding the evidence that the MWMG did not specifically carry out an assessment of need for the Barro Kealba site. It is unclear exactly what such an exercise would entail. In my view, however, the very nature of the sequencing in the Landfill Schedule shows the MWMG to have had regard to the position of the Barro Kealba site in the context of existing landfills and future options for landfill development in the region. The Schedule anticipates that the Barro Kealba site will come into operation in 2009 and that other sites in the relevant part of the Schedule will close at different times. The Tribunal should not have proceeded on the basis that there had been no consideration of the need for the Barro Kealba site by the MWMG.

91 There remains the question, however, as to whether the Tribunal's foray into the question of regional need resulted in its determination being affected by material error. The Tribunal stated that the need for the development of additional landfill space was an appropriate consideration for it, but that it was not required to make a full investigation of metropolitan landfill requirements; rather, it was required to take account of landfill policy that 'strongly discourages' the establishment of new landfills.[47] As a result, the Tribunal did not purport to investigate metropolitan landfill requirements in any real sense. The Tribunal's consideration of need was at best cursory: it referred briefly to certain findings in the Landfill Schedule as to the need to schedule further sites and to the evidence of Mr Maltby as to available airspace in and around Melbourne.[48] It then shifted gear and moved to consider and apply a policy direction which, it said, 'strongly discouraged' the establishment of new landfills.[49]

92 The Tribunal's consideration of need did not approach the type of consideration required to be undertaken by the MWMG in formulating the Landfill Schedule. The Tribunal did not undertake a full assessment of landfill need on a regional basis. To that extent, it might be said that it did not substitute its own findings on need for those of the MWMG. As senior counsel for Barro pointed out, the Tribunal made no express findings in relation to need at all. It relied on the policy of minimising landfills, which it incorrectly described as a policy to 'strongly discourage' landfill development, to conclude that the proposal did not pass the test of providing a net community benefit and sustainable development for the benefit of present and future generations.

93 However, the Tribunal's inquiry into 'need', albeit limited in scope, involved a material error of law, because its application of policy involved an implicit finding that there was no need for any further landfill development in the metropolitan area. The application of the policy on which it purported to rely depended on the Tribunal being satisfied that there was no need for the Barro Kealba site to be developed for landfill.

Other grounds: natural justice, inadequate consideration, irrationality or illogicality

95 The remaining grounds of appeal concern the Tribunal's construction of the TZW Strategy and whether it was a policy of 'minimising landfills' (Grounds 2 and 3), and the process by which the policy of 'minimising landfills' was applied by the Tribunal to refuse the permit application (Grounds 4 and 5).

96 Barro contends, in substance, that the misconstruction and misuse of the policy of 'minimising landfills', in particular by reference to the TZW Strategy, resulted in a decision for which there was no proper basis in law or in fact. According to Barro, the Tribunal's reliance on the said policy, particularly in the absence of any factual findings on the issue of need, gave rise to a decision that was illogical or irrational and did not reflect the proper, real and genuine consideration of relevant matters, especially the benefits of the proposal.

97 Barro submits that the Tribunal's reasons show that it found there was no reason to refuse the application on amenity or environmental grounds, but it determined that it was entitled to determine the application on the basis of need, and more particularly policy about need. In this regard, Barro complains about the way in which the Tribunal limited its discussion about the policy of reducing the number of landfills to passages from the TZW Strategy. It says that the Tribunal's observation that it was probable that, had the original application for a planning permit been submitted after the release of the TZW strategy, then the site would not have been developed, shows the Tribunal's belief that the TZW Strategy was a 'game changer', which meant that the previously acceptable development of the site as a landfill was now no longer acceptable.

98 According to Barro, in relying on the TZW Strategy as the key to a policy of reducing landfills and, in turn, relying on that policy to overwhelm its findings that there were no environmental or amenity grounds to refuse the permit, the Tribunal reached a conclusion that was without logic or foundation. Moreover, it submits that that it was denied natural justice, in that it was not given the opportunity to be heard on whether the TZW Strategy promoted the policy of 'minimising landfills'.

99 I disagree that the TZW Strategy was a 'game changer' for the Tribunal. The Tribunal referred to the TZW Strategy, noting that it was released after the issue of the 1999 planning permit and the Works Approval, and speculated that the original application for a planning permit would not have been approved after the release of the TZW Strategy. It set out sections of the TZW Strategy relating to the objectives of the landfill levy (discouraging the disposal of waste to landfill and supporting the development of infrastructure to replace landfill) and to the investigation of potential landfill bans for certain types of waste, including specific types of solid inert waste.[50]

100 To the extent that Barro's complaints are based on the Tribunal's use of the TZW Strategy, they are not made out. The TZW Strategy was one of a number of policy documents referred to by the Tribunal. It was not, in my view, a 'game changer' for the Tribunal. I regard the speculation by the Tribunal that a permit would not have been granted for the Barro Kealba site after the introduction of the TZW Strategy as just that - a speculative comment thrown in as afterthought. I consider it likely that the Tribunal would have reached the same conclusion about the importance of the policy of minimising landfills and the impact of that policy on the Tribunal's determination of the permit application would have been the same had the TZW Strategy not been referred to.

101 Moreover, it was open, in my view, for the Tribunal to characterise the TZW Strategy as promoting the policy of minimising landfills. While the principal direction of the Strategy is to reduce the disposal of waste to landfill and to encourage other more sustainable ways of dealing with waste, the minimisation of landfills forms part of this package.

102 It follows that there has been no want of procedural fairness in relation to the Tribunal's interpretation and application of the TZW Strategy.

103 Grounds 2 and 3, which relate to the Tribunal's use of the TZW Strategy, are not made out.

Did the Tribunal err in law by misconstruing policy?

104 Barro accepts that it is policy to 'minimise landfills'. However, it contends that the policy objective and policy intent of minimising the development and use of landfills must be consistent with the policy principles in the Waste Management Policy, including the waste hierarchy set out in cl 8(8),[51] which includes 'disposal', albeit as the least preferable form of management. According to Barro, the policy of minimisation of landfills is in fact an outcome of the minimisation of the disposal of waste and the maximisation of the recovery of resources. A secondary aspect is the rationalisation and regionalisation of landfills to encourage the closure of small, local, badly sited and managed landfills and their replacement with fewer, large regional landfills sited and managed in accordance with modern standards.

105 I agree with Barro that to decide a permit application for a landfill development on the basis of a broad policy direction to 'minimise landfills' (whether on the basis of the TZW Strategy or otherwise) involves a misreading and misapplication of policy, including, significantly, the Waste Management Policy (which the Tribunal was bound to give effect to). While it is apparent from the policy framework for waste management that it is policy to minimise the disposal of waste to landfill (and thereby to 'minimise landfills'), the Waste Management Policy recognises that landfills will be needed into the future to take waste that cannot be managed by other means. The policy is not to 'discourage' the development of landfills per se, but to facilitate the development of more efficient and environmentally sensitive landfills to the extent that they continue to be required. The EP Act, the Waste Management Policy and the BEPM each assign to the regional waste management group (or, in this case, the MWMG) the task of 'minimising landfills' by the mechanism of strategically assessing on a regional basis the future need for this method of disposal and scheduling those sites that are best placed to cater for demand having regard to the siting criteria. Clause 10(5) of the Waste Management Policy expressly requires regional waste management groups (and therefore the MWMG) to ensure that their plans are consistent with and assist in the implementation of policy, including minimising the development and use of landfills. The Barro Kealba site was scheduled in accordance with that requirement.

106 In its emphasis on strongly discouraging the development of landfills, the Tribunal has reduced complex policy - the promotion of measures to encourage re-use, recycling, recovery and treatment of waste rather than its disposal and hence to reduce waste disposal to landfill - to a simplistic 'one size fits all' mandate: to strongly discourage landfills. Such a reductive reasoning process could be applied to refuse any and all landfill development in the future, irrespective of the merits of a particular proposal. This would be the case even if the proposal satisfied the objective of 'minimising landfills' by facilitating the closure of other sites.

107 Barro contends that the misinterpretation of policy by the Tribunal resulted in a decision that was illogical or irrational and should be set aside on that basis. It relies on this ground rather than on Wednesbury unreasonableness.

108 In my view, the availability of the illogical or irrational ground remains somewhat uncertain where the provision conferring the decision-making power does not require the decision-maker reach a state of satisfaction about a specified matter. Justice Cavanough has very helpfully reviewed the current status of the illogical or irrational ground in Rees v County Court.[52] His Honour referred to the recent decision of the High Court of Australia in Minister for Immigration and Citizenship v SZDMS,[53] in which Gummow and Kiefel JJ appeared to hold that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, whereas according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker.[54] Certainly, on the second of these approaches, the decision of the Tribunal could not be characterised as illogical or irrational.

109 In my view, in applying policy in the manner described, the Tribunal has not reached a conclusion that is illogical or irrational so much as failed to exercise its discretion by giving proper, genuine and realistic consideration to the merits of the permit application. In Khan v Minister for Immigration and Ethnic Affairs,[55] Gummow J held that the improper exercise of power for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) included the exercise of discretionary power in accordance with a rule or policy, without regard to the particular merits of the case. An administrative decision maker is required to give 'proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy'.[56] In Minister for Immigration and Citizenship v SZJSS,[57] the High Court endorsed the principle that the decision-maker was obliged to give 'proper, genuine and realistic consideration to the merits of the case', but stressed that in judicial review, the court should not allow the principle to encourage 'a slide into impermissible merits review'.[58]

110 Barro complains that as a result of the way in which it applied the policy of minimising landfills, the Tribunal failed to address the question of net community benefit and to engage in the balancing of factors relevant to that exercise. It contends that although the Tribunal concluded that the proposal did not provide a net community benefit, there is nothing in the reasons that shows the Tribunal to have undertaken the necessary balancing process, and there is no discussion as to why the proposal is not an acceptable planning outcome. The Tribunal did not refer to the factors that Barro submitted ought to be weighed in the balance to establish whether the landfill proposal produced a net community benefit; rather, it proceeded on the basis that the policy (as found) to minimise landfills 'trumped' all other matters.

111 In my view, this ground of appeal is made out. A careful reading of the Tribunal's reasons for decision shows that it treated the policy of minimising landfills as a matter that overrode all other considerations. The Council and residents valiantly attempted to identify passages in the Tribunal's reasons that dealt with the matters that could be expected to be weighed in the balance in the consideration of net community benefit for the landfill development in question. They pointed out that the Tribunal made reference to the fact that the permit application provided an opportunity to impose modern operating conditions on the landfill and to the final use of the site as a golf course. The Council analysed the various items of community benefit put forward by Barro's town planning witness, Mr Govenlock, and submitted that many of them were subsumed in the consideration of need and that others were taken into account by the Tribunal in its consideration of amenity impacts.

112 However, I am not persuaded that the Tribunal engaged in an assessment of net community benefit by balancing competing considerations, including the benefits of the proposal. In spelling out what it understood to be the overriding policy in respect of the establishment of new landfills and in briefly referring to evidence of the copious airspace available in and around Melbourne, the Tribunal proceeded on the basis that the policy (and the assumed underlying lack of need) 'trumped' all other considerations. That process of reasoning would produce the same result in any case involving landfill development in metropolitan Melbourne, regardless of the merits of the particular proposal.

113 The Tribunal's resort to the policy of minimising landfills resulted in a failure to carry out the statutory task assigned to it. It did not give proper, genuine and realistic consideration to whether the grant of a permit to develop the Barro Kealba site as landfill would or could give rise to a net community benefit.

114 As Barro submitted, the policy of cooperatively and strategically planning for the development and use of landfills on a regional basis would be undermined if a single responsible authority was empowered to refuse a permit for a landfill simply on the basis of a broad policy of reducing landfill numbers. The Waste Management Policy recognises that there will be a need for landfilling into the foreseeable future and that the policy direction to reduce the number of landfills requires future landfill siting to be developed strategically on a regional basis.

115 The ground of appeal based on the Tribunal's failure to give proper, genuine and realistic consideration to whether the proposal gave rise to a net community benefit is made out. The error is a vitiating error in that it materially affected the Tribunal's determination of the permit application.

116 The legislative and policy regime for the siting of landfills with which the Tribunal was required to grapple is complex. Some of the language in the policy documents is uncertain, in my view, and apt to lead to confusion as to who is responsible for what.

117 Despite its best efforts, I am persuaded that the Tribunal erred in its consideration of 'community needs' and that it applied policy in a manner that resulted in a failure to give proper, genuine and realistic consideration to the merits of the proposal.

118 Grounds 1 and 4(b) are made out. Barro must be granted leave to appeal, the appeal allowed, and the Tribunal's order set aside. The proceeding will be remitted to the Tribunal to be determined according to law.

[2] Revised Grounds dated February 2011.

[3] Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099 ('Reasons').

[7] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[8] Planning and Environment Act 1987 (Vic), s 77.

[9] Planning and Environment Act 1987 (Vic), 84B(2)(a).

[10] Planning and Environment Act 1987 (Vic), 84B(2)(e).

[11] The Waste Management Policy (Siting, Design and Management of Landfills) dated 14 December 2004 is deemed to be a State Environment Policy by reason of s 16A(3) of the Planning and Environment Act 1987 (Vic).

[12] Planning and Environment Act 1987 (Vic), s 50B(2).

[13] It must not be inconsistent with any relevant State environment protection policy, waste management strategy or solid industrial waste management plan.

[14] Section 50 of the Environment Protection Act 1970 (Vic) provides for the establishment of the MWMG as the successor to a number of regional waste management groups.

[15] Environment Protection Act 1970 (Vic) s 50AC.

[16] Environment Protection Act 1970 (Vic), s 50AD(h).

[17] Waste Management Policy (Siting, Design and Management of Landfills) dated 14 December 2004 cl 10.

[23] Solid industrial waste management plan.

[25] With the exception of 'alternative potential uses', the 2001 BEPM contained the same aspects but in a slightly different order.

[26] The 2001 BEPM specified that a landfill should not be located where it was not needed for the disposal of the community's waste and provided that waste management groups were responsible for providing a framework for the orderly development of waste management facilities for both public and private sectors, to ensure that a reliable system of waste management, including landfill air space, was maintained within a region.

[27] Appendix M contains a flowchart for the scheduling process. The first step involves assessing volumes of waste to landfill, collating airspace at scheduled sites and considering transport issues. This enables the assessment of new sites for the period under consideration.

[28] Metropolitan Waste and Resource Recovery Strategic Plan, Part 3 - Metropolitan Landfill Schedule [1.2.1].

[31] The outcomes expected to contribute to the zero waste vision include a substantial reduction in the amount of waste generated, significant improvements in the design, manufacture, consumption and disposal of goods, progress in resource recovery technologies, services and infrastructure, consumers making more sustainable purchasing decisions, industry and business being rewarded for innovation in design, manufacture and re-use of materials and products and the improvement in recycling and efficiency in resource use.

[41] Metropolitan Waste and Resource Recovery Strategic Plan, Part 3 - Metropolitan Landfill Schedule [4.1].

1. [42] Barro Group Pty Ltd v Brimbank City Council (Supreme Court of Victoria, Emerton J, 1 and 2 February) Transcript 134.28 ('Transcript').

[51] Also referred to in s1I of the Environment Protection Act 1970 (Vic).

[52] [2011] VSC 67 [22] - [23].

[53] [2010] HCA 16; (2010) 240 CLR 611.

[54] Rees v County Court [2011] VSC 67, [22] - [23].

[55] [1987] FCA 457; (1987) 14 ALD 291.

[57] [2010] HCA 48; (2010) 243 CLR 164.

[58] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, 175-6 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) citing Swift v SAS Trustee Corporation [2010] NSWCA 182, [45] (Basten JA with Allsop P agreeing). See also the reservations expressed by the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Athonypillai [2001] FCA 274; (2001) 106 FCR 426.