1. Argus Tallow Merchants Pty Ltd (Argus) operates a fat rendering (tallow) plant and composting facility at its premises in Dandenong.
2. The development and use of the land relies partly on existing use rights (for the fat rendering) stemming from the 1960's, and partly on various planning permits issued since 1987. It is common ground that the composting facility does not enjoy the benefit of the existing use rights, and is authorised only by permit. The two uses are somewhat inter-related, with the composition of the outdoor compost windrows on the Argus land comprising approximately 90% green waste and approximately 10% organic compounds from the fat rendering.
3. The Argus land is in an Industrial 2 Zone under the Greater Dandenong Planning Scheme, and abuts land now in an Industrial 3 Zone to the north, where lighter forms of industry have established over the past few years.
4. Following complaints about odour emissions from the Argus land by owners or occupiers in Arkwright Drive in the adjacent Industrial 3 Zone, the Greater Dandenong City Council (Council) has sought to have Argus comply with Condition 23.3 in a planning permit PLN10/0091.02 issued by the Council on 15 November 2010 (2010 permit).
5. In particular, the Council alleged a contravention of Condition 23.3 of the 2010 Permit in a Planning Infringement Notice (PIN) it issued against Argus on 3 September 2014. Argus paid the fine and I was advised that there is currently no ongoing enforcement action, but Argus submits that it is under threat of further action.
6. Condition 23 provides:

The amenity of the area must not be detrimentally affected by the use or development on the land, through the:

23.1 Transport of materials, goods or commodities to or from the land.

23.2 Appearance of any works, building or materials.

23.3 Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

23.4 Presence of vermin.

23.5 Adverse behaviour of persons to or from the premises.

All to the satisfaction of the Responsible Authority.

1. The status of the 2010 permit is disputed, in terms of what it authorises and what the permit conditions can regulate. However, through this proceeding, Argus seeks to impugn only part of Condition 23 (i.e. Condition 23.3), and primarily in relation to its purported 'control' on emissions of smell.
2. Argus has sought declarations under s 149A of the Planning and Environment Act 1987 to the effect that:
   • Condition 23.3 of the 2010 permit is invalid insofar as it relates to the use of the land.
   • the standard of amenity relating to odour is substantially less in an Industrial 3 Zone than a residential area or public area forming part of the local community.
   • the Council refrain from enforcing Condition 23.3 of the 2010 permit in relation to the use of the land.

Scope of s 149A of the Planning and Environment Act 1987

1. Given the issues in this proceeding, it is relevant to note that:
   • s 149A of the Planning and Environment Act 1987 allows a specified person to apply to VCAT for a determination if a matter relates, amongst other things, to the interpretation of the planning scheme or a permit in relation to land or a particular use or development, or to existing use rights.
   • Argus is a 'specified person' able to seek a determination under s 149A, being an owner, user or developer affected by the matter.
   • pursuant to s 149A(2), VCAT may determine the matter, and may make any declaration VCAT considers appropriate and/or direct a specified body to take, or refrain from taking, action specified by VCAT.
   • the responsible authority (i.e. here, the Council) is automatically a party to a s 149A proceeding, and is a 'specified body' against whom a relevant direction can be made.
   • VCAT's power under s 149A is exercisable only by a presidential member or legal member.
2. On this last issue, VCAT was constituted for the hearing with a presidential member (DP Dwyer) and a specialist member with expertise in air quality (Member Catherine Wilson) - the latter due to the potential for technical issues about odour emissions, or related proceedings, to arise. Ultimately, the parties chose not to proceed with a full evidence-based case, and the specialist assistance was not directly required. The power under s 149A has been exercised by DP Dwyer alone, and these reasons have therefore been written in the singular person by DP Dwyer as the presiding legal member, albeit that Member Wilson technically remained part of the constituted tribunal.
3. I note from the wording of s 149A that the provision initially allows a person to seek a 'determination', with a 'declaration' being a possible outcome of the proceeding. Accordingly, although many of the principles that apply to declaratory relief remain relevant, the jurisdiction of VCAT under s 149A of the Planning and Environment Act 1987 is necessarily different to the more restricted declaration power under s 149B. That is not to say that a determination should be directed to answering an abstract or hypothetical question in relation to circumstances that have not occurred and might never happen, or if there will be no foreseeable consequence for the parties[1]. But, by its very wording, s 149A envisages that VCAT may, in appropriate cases, provide an anticipatory determination that may be partly advisory in nature, in order to resolve a bona fide dispute about how the planning scheme or a permit should be interpreted, and how it will operate, in relation to a particular development or use of land. That is not something that is ordinarily within the scope of declaratory relief[2] but, as I have said, the available relief under s 149A is more broadly stated. Despite this, the jurisdiction under s 149A is not unfettered, but it reflects parliament's intent that VCAT have a broader 'one stop shop' jurisdiction to resolve planning disputes of this nature. This is particularly the case having regard to the complexity of the planning regulatory framework, and the fact that many planning scheme provisions and permit conditions are drafted by non-lawyers and without legal precision.
4. The Council sought to have the application dismissed on a preliminary or summary basis, arguing that the application constitutes an abuse of process, that there are other more appropriate remedies, that it is inappropriate to provide an advisory opinion, and/or that the relief sought is misconceived or beyond power.
5. Given what I have said earlier, I am not convinced that the issues raised by Argus in this s 149A proceeding can be so easily dismissed. However, that is not to say that I am not sympathetic to the Council's more detailed submissions on some of these issues. I will nonetheless deal with one issue briefly upfront, as it also relates to the scope of s 149A.
6. The Council argued that Argus was 'clearly using the wrong procedure to ventilate its concerns' and that the application should be dismissed on this basis alone. The Council considered that Argus should instead seek to amend the 2010 permit under s 87 of the Planning and Environment Act 1987.
7. It is important to distinguish between the underlying jurisdiction to consider a matter under s 149A, and the discretion or utility in granting the relief sought where other possible remedies exist. The power to make a declaration in ss 149A or 149B is not ousted by the existence of alternative remedies[3], and there are several examples where the Planning and Environment Act 1987 provides more than one avenue to deal with a planning dispute. The fact that s 87 may provide a possible remedy does not, of itself, make s149A the wrong procedure. [I say 'possible' remedy because there is quite some doubt that s 87 is available, given that the development authorised by the 2010 permit has been completed].
8. Secondly, Argus is not trying to amend the 2010 permit in the sense of seeking some material change to it, or at least not at this stage. Argus just wants to know what the existing permit means in its current form, given a dispute between it and the Council as to the validity and/or effect of Condition 23.3. If Argus' interpretation is preferred, an amendment under s 87 (or, alternatively, under s 72) of the Planning and Environment Act 1987 would potentially be unnecessary.
9. As I have said, I do not discount the amendment of the 2010 permit (or other permits) as a possible process still open to Argus. I simply observe that this does not mean that s 149A is the 'wrong' procedure, and I do not consider that the matter is as simple as the Council would make out.

1. There are difficulties for me in deciding this proceeding in circumstances where the parties have chosen not to proceed with a full evidence-based case, nor taken me at any length through the bundles of cases and other voluminous background material filed or handed up at the hearing. This is disappointing given the nature of the underlying dispute between the parties that is very much within the jurisdiction of VCAT under s 149A(1)(a) of the Planning and Environment Act 1987 - the determination of a matter relating to the interpretation of a permit in relation to land or a particular use or development of land.
2. The folders of documents provided by the parties at the hearing did canvas a number of background matters, including the history of use of the land, and the construction of the 2010 permit and its relationship with the 1995 permit for the composting facility. There is a very real threshold dispute as to whether the 2010 permit is a permit for use and development, or development only - a matter which occupied much of the hearing. There is also a dispute about how to interpret a condition that purports to deal with a contested issue such as 'smell' in combination with many other amenity considerations that are not in dispute - a matter not well ventilated at the hearing.
3. These matters potentially affect the context in which the s 149A proceeding must be determined and how Condition 23.3 should be interpreted. It also affects the context for what may comprise the relevant planning policy in considering the validity of Condition 23.3 - for example, is it the policy relating to the contested issue of smell, or amenity more generally?
4. I have therefore considered these background matters at some length, and I will first deal with some of them in order to make relevant findings, and to provide this context. Unfortunately this is not a simple task.

1. Condition 23 in the 2010 permit is in the standard form of wording of what is often referred to as the 'general amenity condition'. It is a condition commonly applied by Councils on planning permits. VCAT's experience is that it is perhaps an over-used condition, sometimes imposed without too much thought about its relevance or implications for a given permit, or whether individual aspects of the condition are always desirable or necessary. The general amenity condition nonetheless has its role to play in the protection of amenity in appropriate circumstances[4].
2. The so-called general amenity condition, in the context in which it is used here, has its genesis in the definition of 'light industry' under the former Melbourne & Metropolitan Planning Scheme (MMPS) in the 1970's and 1980's[5]. As a means of distinguishing general, heavy or offensive industry with greater potential for amenity impact, from lighter forms of industry that could locate in a greater variety of zones or areas, 'light industry' was defined to include industry:

... in which the buildings or works thereby occupied or employed, the processes carried on, the material used or stored, machinery employed, and the transportation of materials goods and commodities to and from the premises will not cause injury to or prejudicially affect the amenity of the locality by reason of the appearance of such building, works or materials or by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, wastepaper, waste products, grit, oil, or of the presence of vermin or otherwise ...

1. A condition was often imposed to facilitate this outcome - i.e. to ensure that lighter forms of industry located closer to residential areas and other sensitive uses did operate in a manner that did not cause off-site amenity impacts.
2. As can be seen, the commonly used 'general amenity condition' embodied in Condition 23 adopts very similar wording.

1. The current VPP-based planning schemes do not define 'light industry' or 'offensive industry' and (with limited exceptions) depend less on the arbitrary classification of particular types of industry. Despite this, the Industrial 2 Zone in which the Argus land is located, by reference to its purposes, is intended to be used for manufacturing and storage facilities that, by the nature of their operations, require a separation from other industry or more sensitive uses. The purposes of the Industrial 2 Zone are:

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

To provide for manufacturing industry, the storage and distribution of goods and associated facilities in a manner which does not affect the safety and amenity of local communities.

To promote manufacturing industries and storage facilities that require a substantial threshold distance within the core of the zone.

To keep the core of the zone free of uses which are suitable for location elsewhere so as to be available for manufacturing industries and storage facilities that require a substantial threshold distance as the need for these arises.

1. The decision guidelines for a permit in the Industrial 2 Zone include (but are not limited to) the following:

The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities.

The effect that nearby industries may have on the proposed use.

1. Industrial uses with the potential for adverse amenity impact are also governed by clause 52.10, although the recommended threshold (or separation) distances in that clause are the distances between the industrial use and nearby residential or other sensitive uses rather than to other industry. I understand that, according to the Council officer report, the buffer that applied to Argus' composting operations at the time the 2010 permit was issued was considered to be 200 metres. Under clause 52.10 as it stands now, the threshold distance for a composting facility is variable, dependent on the processes to be used and the materials to be processed or stored[6].
2. By comparison, the Industrial 3 Zone, by reference to its purposes, includes its intended use as a buffer between the Industrial 2 Zone and local communities by allowing compatible industrial and associated uses, and to seek to avoid inter-industry conflict.
3. The Industrial 3 Zone includes an automatic requirement throughout the zone, substantially in the form of the 'general amenity condition'. Clause 33.03-2 of the Industrial 3 Zone provides:

A use must not adversely affect the amenity of the neighbourhood, including through the:

• Transport of materials, goods or commodities to or from the land.
• Appearance of any stored goods or materials.
• Emission of noise, artificial light, vibration, odour, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.

1. As can be seen, this clause is substantially similar to the general amenity condition, and to Condition 23 on the 2010 permit. The third dot point in Clause 33.03-2 is identical to Condition 23.3.
2. Conversely, but understandably (having regard to the zone purpose), there is no similar clause in the Industrial 2 Zone in which the Argus land is situated. The Industrial 2 Zone is not a zone where light industry is expected to locate, but a zone where industry with the potential for off-site amenity impacts is expected to locate.
3. This perhaps initially begs the question about what an Industrial 3 Zone 'light industry' or general amenity condition is doing on a permit relating to a fat rendering plant and compositing facility in the Industrial 2 Zone.

1. I have referred already to 'sensitive' land uses, or similar phrases that apply (for example) to 'residential areas or other uses which are sensitive to industrial off-site effects'. The term is used in many planning documents and policies.
2. Insofar as I am aware, the planning scheme does not however define what a 'sensitive' land use is. Ministerial Direction No. 1, and departmental practice notes, define a 'sensitive use' as being 'a use for residential, child-care centre, pre-school centre or primary school', although that is done in the context of potentially contaminated land.
3. For industrial land uses with adverse amenity potential, the EPA's 'Recommended Separation Distances for Industrial Residual Air Emissions (EPA Publication 1518, March 2013)', upon which clause 52.10 of the planning scheme is based, defines a 'sensitive land-use' as 'any land uses which require a particular focus on protecting the beneficial uses of the air environment relating to human health and well-being, local amenity and aesthetic enjoyment, for example residential premises, child-care centres, pre-schools, primary schools, education centres or informal outdoor recreation sites'. The version of this publication in force at the time the 2010 permit was granted referred to 'residential areas and zones (whether occupied or not), hospitals, schools, caravan parks and other similar uses involving the presence of individual people for extended periods, except in the course of their employment or for recreation' (my underlining).
4. Clause 52.10 of the planning scheme itself appears to address the issue in a more spatial context by referring to the areas or uses that might warrant protection - comprising 'land (not a road) in a residential zone, Business 5 Zone, Capital City Zone, or Docklands Zone, land used for a hospital or an education centre or land in a public acquisition overlay to be acquired for a hospital or an education centre.'
5. For the provisions and policies that I am required to consider in this proceeding, I have considered references to 'sensitive' land use in this general context. Importantly, there is no relevant planning scheme provision or planning policy that equates factories, warehouses or light industrial uses as a 'sensitive land use'.

1. The Argus land is in what was originally the Dandenong Offensive Industrial Zone (DOIZ) - one of only two such zones where offensive industry was able to establish in or near Melbourne. Under the former MMPS, an 'offensive industry' was, by its nature, an industry that may cause discharges regarded as offensive to persons or operations on nearby land.
2. A tallow factory and fat rendering plant was established on the Argus land in the 1960's. It would have been characterised as offensive industry under the MMPS - particularly for its potential odour impacts. That aspect of the use of the land by Argus is in any event protected by existing use rights, although this proceeding does not require me to characterise the exact extent of the use that that has the benefit of such rights. A permit was also issued in 1987 in relation to the fat rendering plant. In any event, changing industrial standards, environmental licensing requirements, and modern equipment have over time enabled some of the older offensive industries to reduce or remove their off-site impacts.
3. I will refer to specific permits shortly, but simply note at this point that, in 1995, Argus obtained a planning permit and EPA approval to also develop and use its land as a composting facility.
4. The DOIZ remained important as a zone for industry requiring separation from other uses. With the advent of the VPP-based Greater Dandenong Planning Scheme in 1999, the DOIZ became zoned Industrial 2 - a zone with a similar purpose. There are many strategic planning documents, not least the panel and advisory committee report for the then 'Greater Dandenong - New Format Planning Scheme' in 1998, which recognise the importance of this zone for established heavy industries in Dandenong. The 'state significance' of the Industrial 2 Zone in Dandenong is recognised in the current Municipal Strategic Statement in the Greater Dandenong Planning Scheme[7], as well as in the State Planning Policy Framework[8].
5. The Argus land historically had the benefit of a large buffer to its immediate north, provided via Melbourne Water's Dandenong Treatment Plant. When that plant was decommissioned, Argus apparently attempted to purchase part of the land, but was unsuccessful. The Council instead re-zoned the land to an Industrial 3 Zone, and it has since been progressively subdivided and developed by others with a variety of businesses, factoryettes, warehouses, and 'light' industrial uses, as well as a local cafe. The Argus land now has a hard and immediate boundary to these new uses, with the concomitant potential for adverse amenity impacts from the Argus land - particularly through odour.
6. There is thus a classic planning conflict created by changes on adjacent land, and not entirely (if at all) of Argus' own making. A question arises as to whether this history is relevant to the validity or interpretation of Condition 23.3, or the threatened action by the Council that Argus seeks to circumvent through this proceeding.

History of planning permits for the Argus land

1. I have already mentioned that the Argus land enjoys existing use rights for the fat rendering use established in the 1960's. It is common ground that the composting facility does not enjoy the benefit of those existing use rights, and is authorised only by permit.
2. Several planning permits have issued for the Argus land since 1987.
3. Permit 2684 was issued on 7 December 1987 under the then MMPS 'to extend an existing factory to be used for the purpose of fat rendering'. There is a potential ambiguity about whether this is only a buildings and works permit, or authorises use as well, given the pre-existing use rights for fat rendering. I am not required to decide that issue, but nothing materially turns on this. The permit conditions primarily relate to development matters. The fat rendering is authorised by existing use rights, or a combination of those existing use rights and the 1987 permit. The 1987 permit did not contain a general amenity condition.
4. There are then two permits that are primarily relevant to this proceeding:
   • Permit 95/313 was issued on 4 September 1995 for 'use and development of the land for the purpose of a composting facility in conjunction with existing fat rendering use in accordance with attached approved plans' (1995 permit).
   • Permit PLN10/0091.02, originally issued on 15 November 2010 with Version 2 incorporating amendments through to 15 July 2013, for 'buildings and works comprising the construction of windrows, additional tanks and weighbridge and the display of advertising signage associated with an existing use on the site (composting facility)' (2010 permit)
5. Two other permits were provided to me, 97/545 and 96/109, both issued for buildings and works. According to Argus, these were never materially acted upon, and have lapsed. The footings were apparently laid for one permitted building, but it was never constructed.
6. The ambit and operation of the 1995 permit is of potential relevance to the 2010 permit and Condition 23.3. I note the following:
   • the 1995 permit is the first to authorise the use for the compositing facility, as well as certain buildings and works. It contains a number of conditions about the use, although (subject to what is set out below) none refer directly to odour.
   • the 1995 permit contains a limited general amenity condition. Condition 3 includes provision that: 'The use hereby permitted must not affect the amenity of the locality by ... emissions from the site or in any other way'. Unlike the 2010 permit, this does not refer expressly to smell, but it refers to emissions generally and would thus include odour emissions. It does not contain the words that occur in some general amenity conditions, to the effect that the condition must be met 'to the satisfaction of the responsible authority'. Any affect on amenity would therefore need to be objectively considered.
   • the 1995 permit requires all EPA requirements to be met.
   • the 1995 permit refers to attached approved plans. Apparently, neither Argus nor the Council have been able to locate those 'attached' plans, and none were provided to me.
7. Argus does not contest the fact that the Condition 3 on the 1995 permit could, in appropriate circumstances, be used to enforce and control odour emissions that affect the amenity of the locality, given that the 1995 permit relates to the use of the land.
8. I will deal separately with the 2010 permit later in this discussion. As will be apparent already, part of the dispute revolves around whether Condition 23.3 can or should be enforced as a 'use' condition on what Argus contends is a limited buildings and works permit, or whether the correct condition for enforcement (if any) of the 'use' is the general amenity condition on the 1995 permit.

Inter-relationship with EPA regulatory framework

1. The 1995 permit, which first authorised the composting facility, evidences a clear inter-relationship with the EPA regulatory framework. In this regard:
   • the Argus land had been the subject of an EPA waste discharge licence EI 37 issued on 20 October 1989. Amongst other things, that licence dealt expressly with odour emissions - presumably then in relation to the fat rendering.
   • on 21 March 1995, the EPA issued a research, development and demonstration approval RD 25622 for compositing on the Argus land, subject to the grant of a planning permit - presumably the 1995 permit that issued later that year. The EPA approval contained conditions expressly dealing with odour emissions, including the express application of the conditions in the EPA licence EI 37, and provision for how non-compliance or unacceptable odour should be dealt with.
   • on 19 March 1997, the EPA amended licence EI 37. It included a Condition 3(b) that 'odours offensive to the senses of human beings shall not be discharged beyond the boundaries of the site'. It also included some amended layout plans. The EPA licence EI 37 was further amended on 2 May 2005 (with additional odour controls) and on 19 October 2010.
   • on 16 February 2000, the EPA issued a works approval for the composting facility. As part of this process, an initial Environment Management Plan (EMP) was prepared for Argus by the Geo-Eng Group in 1999 dealing, amongst other things, with odour management. The EMP was updated by Meinhardt in 2010 and refers to the EPA regulatory regime, including the State Environment Protection Policies (SEPPs) for Ambient Air Quality and Ambient Air Management, as well as other EPA guidelines for composting and recycling facilities - e.g. AS 4454-2003 and EPA publication 508.
2. The 2010 permit also evidences an inter-relationship with the EPA regulatory framework. I note that a further updated EMP was endorsed by the Council on 28 September 2011 as an 'approved plan' under the 2010 permit.
3. I have already referred to the EPA's 'Recommended Separation Distances for Industrial Residual Air Emissions (EPA Publication 1518, March 2013)' in the context of what might comprise a 'sensitive land use'. There are a number of other parts of that publication that are worthy of mention as being relevant to the interrelationship between the use of the Argus land and the EPA regulatory framework:
   • the publication itself provides a commentary on the interrelationship between the EPA regulatory framework and the planning framework under the Planning and Environment Act 1987, and the role of a responsible authority (here, the Council) in a section headed 'Policy Basis' (Section 5). I mention this because of the later discussion on the relevance of policy to a determination of the validity of a permit condition.
   • the publication sets out why separation distances are needed (Section 6). There is a recognition that, whilst State environment protection policy is to ultimately eliminate industrial air emissions from premises, even with good pollution control technology in practice, there may still be occasional or unintended emissions that must be anticipated and allowed for - including, for example, equipment failure, accidents and abnormal weather conditions.
   • the publication recognises the "agent of change" principle (Section 9), whereby the proponent of a land-use change seeking to reduce a recommended separation distance (including a planning authority or responsible authority) takes responsibility for demonstrating that the change is appropriate.
   • the publication recognises the potential problems of interface land uses and inter-industry conflict (Section 10). To avoid inter-industry conflict, interface land uses that should be located within a recommended separation distance are stated to be those that do not themselves generate off-site amenity impacts, 'nor warrant protection from them'.
4. The EPA has recently released guidelines on composting - 'Designing, constructing and operating composting facilities (EPA Publication 1588, March 2015)'. The parties did not refer to this publication. The guidelines do not provide a single recommended separation distance for a composting facility due to the variety of materials that can be composted and the processes used. However, recommended distances shown in the examples in the publication vary between 300 metres and more than 2000 metres. Argus' operations would fit somewhere within this range. Under the EPA framework in force at the time the 2010 permit was granted, the recommended separation distance for a composting facility was 500 metres.
5. Again, these matters are indicative of the tensions that underscore this proceeding, with the planning conflict created by changes on adjacent land, within a recommended separation distances under both the planning and environmental regulatory frameworks, and that are not entirely (if at all) of Argus' own making. As mentioned elsewhere in these reasons, the EPA policy on Industrial Residual Air Emissions (albeit an earlier version of the publication then in force), and the recommended separation distance that then existed, was an important consideration in the Council officer report when the 2010 permit was granted.

1. There is occasionally an issue about the level of demarcation or overlap between the EPA and a Council in dealing with issues such as odour. The key specialist standards, SEPP's and licensing are mainly the province of the EPA. There is perhaps a reluctance by some Councils in recent times (and by VCAT) to impose conditions on planning permits that are intended to create the Council as a quasi-enforcement body for environmental discharges and emissions that are more traditionally within the regulatory sphere of the EPA, or at least not without good reason[9]. However, this is certainly not to say that a Council has no role in the protection of local amenity - particularly for a development or use also the subject of a planning permit. Moreover, the1995 permit and the 2010 permit must still be given a proper construction according to their terms.
2. Save for one matter, I was not provided with any material by either party about the on-going extent of any actual odour emissions or complaints. I do not know whether the odour emissions that are alleged to be occurring are systemic and significant, or whether they are 'unintended emissions' for the purpose of the policies relating to industrial residual air emissions - for example, occasional emissions arising in particular adverse weather conditions. The parties had apparently agreed that the proceeding should be based on a proper construction of the permit, rather than by reference to any particular alleged breach.
3. Argus did provide me with a copy of a recent EPA inspection report, for an inspection of the Argus land on 13 July 2015 in response to an odour pollution report. The EPA observed a rancid odour downwind, outside of the northern boundary of the Argus land (i.e. in premises on Arkwright Drive now in an Industrial 3 Zone), and noted it to be not overpowering but clearly distinguishable. No direction was given or remedial action required, but the EPA indicated it '... will conduct further inspections to provide additional technical guidance'.
4. As I have mentioned, the EPA licence condition for the Argus land is that 'odours offensive to the senses of human beings' shall not be discharged beyond the boundaries of the site. In relation to this:
   • the EPA licence condition would also have been applied prior to development within the recommended separation distance;
   • there is nothing in the EPA inspection report that indicates that the EPA licence condition is being breached, or that the odours are regarded as 'offensive to the senses of human beings';
   • neither party addressed me on whether a detrimental affect to the amenity of the area (under Condition 23.3) in planning terms equates to whether the odour is 'offensive to the senses of human beings', or is based on a different and perhaps lower threshold test.
5. Argus also referred me to s 30 of the Environment Protection Act 1970, which provides that a licence holder is not liable to penalty under the Act if the licence holder proves that it did not emit odours which are offensive to human beings in a residential area or in a public open space area adjacent to a residential area. Argus argued that the EPA was thus focussed on the impacts from odour from industry to nearby residential and sensitive uses, rather than odour emissions within the industrial area and to the Industrial 3 Zone.
6. I do not know of the EPA's view on any of this, nor how this sits with the EPA licence condition that applies to the Argus land.
7. As I have earlier mentioned, Argus included in its pleadings a reference to a Planning Infringement Notice (PIN) issued by the Council on 3 September 2014 regarding the emission of smell detrimentally affecting the amenity of the area, in alleged contravention of Condition 23.3 of the 2010 permit. I was not furnished with a copy of the PIN. Argus believes that the Council chose to enforce Condition 23.3 of the 2010 permit rather than the general amenity condition in the 1995 permit, either because it (the Council) believes the 1995 permit has been superseded by the 2010 permit, or because it considers the amenity standard in Condition 23.3 'to the satisfaction of the Council' is easier to enforce. Either way, Argus considers the Council's reliance on Condition 23.3 is flawed.
8. Despite this, Argus has paid the PIN penalty and that offence is expiated. There is thus no on-going prosecution or enforcement at present. Argus contends that it wants Condition 23.3 interpreted by VCAT (as a specialist tribunal in planning and environment matters) in the absence of a specific prosecution or enforcement, to avoid ongoing debate and uncertainty.

Proper construction of the 2010 permit - what does it allow?

1. I have until now referred to the 2010 permit in relatively general terms. As I have said, the status of the 2010 permit is disputed, in terms of what it authorises and what the permit conditions can regulate. The parties spent much of the hearing debating this issue. It is therefore necessary that I make some findings about the proper construction of the 2010 permit.
2. In the initial section of the 2010 permit headed "The Permit Allows" (often known as the 'permit preamble'), the permit expressly allows 'buildings and works comprising the construction of windrows, additional tanks and weighbridge and the display of advertising signage associated with an existing use on the site (composting facility)'.
3. The display of advertising signage encompasses a use of land[10]. That aspect of the 2010 permit is not in dispute, nor is the signage relevant to the odour complaints or the operation of Condition 23.3 in relation to 'smell'. Save where necessary, I do not therefore deal further with the signage.
4. Read in isolation, the balance of the preamble to the 2010 permit appears to relate to development, rather than use. It authorises specific new buildings and works associated with the pre-existing use of the composting facility. It appears to be authorising the construction of the windrows, the additional tanks, and a weighbridge. The use of the word 'additional', in relation to the tanks, adds weight to the view that the 2010 permit is authorising new and additional buildings and works, albeit that some of these 'new' works had already been constructed and were receiving retrospective approval through the 2010 permit.
5. Despite this, the Council contends that the 2010 permit represents a consolidation of previous permits for the Argus land and/or is an omnibus permit, and that the 2010 permit regulates the overall development and use of the land.
6. A planning permit must be construed as it stands, in light of the surrounding circumstances. If the permit is unclear or ambiguous, VCAT is entitled to look at the application material and relevant extraneous documents as an aid to construction[11]. I am not necessarily convinced, given what I have just said, that the 2010 permit is at all unclear or ambiguous in what it authorises. However, to the extent the Council contends otherwise, I have considered the surrounding circumstances and relevant extraneous documents including the application material.
7. The Council relies for its contentions on a number of matters that I will deal with in turn.
8. First, the Council's advocate asserts that the words 'associated with an existing use ...' in the permit preamble are intended to signify that the permit is also a permit for 'use', rather than just relating to development. I do not consider that this follows logically or grammatically. Indeed, the opposite is the case. The plain wording is to allow certain buildings and works, and signage. The words 'associated with an existing use on the site (composting facility)' are helpfully added to give context, rather than to authorise something different or extra. The words indicate that the buildings and works relate to the existing composting use (perhaps to differentiate it from the existing fat rendering use), or simply to acknowledge that the 'use' is already existing and authorised and requires no additional permission.
9. Indeed, the Council officer report prepared for the 2010 permit application demonstrates that the interpretation now asserted by the Council's advocate was not the basis upon which the permit was granted. As will be seen further below, the report clearly acknowledges the proposal as being for buildings and works, and for signage. The report acknowledges that there was no change sought to the already established use.
10. Secondly, the Council contends, at least implicitly, that the operation of the windrows necessarily involves their 'use' and that the 2010 permit therefore authorises this use, and can regulate this use. Having regard to the 1995 permit authorising the use of the land as a composting facility, and relevant EPA authorisations, this does not follow. The 2010 permit expressly refers to the 'construction' of the windrows, rather than the on-going operation of these windrows. The application material includes reference to the EPA requirement that green waste, windrow and product storage areas must be constructed on an impervious clay base, and that the windrows must be bunded. The 'construction' authorised by the 2010 permit refers to the works involved with the 25 windrows in terms of their positioning on-site, the impervious or clay bases, bunding, drainage etc. The day-to-day stockpiling or aerating of compost within the windrows after their construction is not part of that 'construction', but part of the separately and pre-authorised use and EPA licensing of the land as a composting facility.
11. Indeed, this is again borne out in the application material for the 2010 permit. The Council had issued a 'further information request' seeking, amongst other things, that Argus clarify whether the use differed to that approved under the 1995 permit. The reply dated 20 April 2010, from Argus' consultants was that "The site is still currently used as a composting facility. The use of the land has not changed from that approved under Permit 95/313". The reply also attached a copy of the EPA waste discharge licence and referred to relevant requirements about windrow construction.
12. Thirdly, the Council relies on parts of the permit application material. In particular, there are two comments made by Argus' consultants, Meinhardt, in a report dated 15 February 2010 accompanying the permit application. These are (with my underlining) that:
    • Meinhardt 'has prepared this report in support of an application for a planning permit for the on-going use and development of land for a composting and blending waste treatment facility ...'; and
    • after referring to the 1995 permit, and the further permits issued in 1996 and 1997, 'This application is required to bring the entire site up to date with current ... EPA requirements ... and to combine all approvals above into the one application'.
13. Considered in isolation, these comments would support the Council contention that the 2010 permit was to be a consolidated omnibus permit that included use. But they are only two comments within a detailed permit application process that contains many documents and comments expressing a different position. These include the following:
    • the cover letter to the Council, also dated 15 February 2010 and from Meinhardt, indicates that the planning permit application is 'for buildings and works associated with a composting and blending waste treatment facility, and advertising signage'. There is no reference to use.
    • the formal permit application form lodged with the Council refers to the proposal in identical terms - i.e. for building and works ...
    • despite the Meinhardt report referring to 'on-going use', the immediately following text in the report refers only to 'the proposed development ...'. Read in context, the reference to 'combining all approvals' can be seen to relate to the buildings and works on-site, given some approved buildings and works (particularly under the 1996 and 1997 permits) were not constructed, and other works had been constructed without a permit.
    • more particularly, at page 17 of the Meinhardt report, the issue is put largely beyond doubt where it is stated : ' ... a permit is not required for the use of the land as this has already been established with the use on site originally approved in 1995 (Planning Permit Reference 95/313) and Argus has been in operation since 1964. Pursuant to clause 33.02-4, a permit is required to construct a building or construct or carry out works ...'
    • through the Council's further information request, and Meinhardt's reply on 20 April 2010, it was clarified that the application was for specific buildings and works (and the signage), that the use had not changed from that authorised under the 1995 Permit, and that 'the main permit which is still current and associated to the use and development of the site is [the 1995 Permit]'.
    • Meinhardt also indicated in this reply that it was submitting the application 'to consolidate all previous applications into one permit ... and also to incorporate any buildings and works which were not previously included.' This was said to be because several planning permits currently existed for the site, including the 1996 and 1997 permits that related to buildings and works that had never been constructed.
14. There is perhaps a degree of inconsistency in some of the application material. I am nonetheless satisfied that the permit application was made by Argus' consultants in good faith, but perhaps without an eye to the finer legal nuances of the language being used. I am satisfied, however, that the consultants making the application well understood that the relevant permit trigger under the Greater Dandenong Planning Scheme that they were responding to (other than for the signage) was for buildings and works rather than use. I find that the permit application (other than for the signage) was in fact an application for buildings and works, and not for use.
15. More importantly, the 2010 permit that was actually granted can be similarly characterised by reference to the application material. The 2010 permit was granted by the Council, under delegation, after considering and expressly agreeing with a detailed officer report and recommendation. The Council's advocate was unable to take me to any material in that officer report to support its view that the application material, read in context, should lead to a conclusion that the 2010 permit was granted for use as well as development, or that it was an omnibus permit that incorporated and superseded the 1995 permit. Indeed, to the contrary, that report:
    • notes the application as being for specified buildings and works, and signage. It does not refer anywhere to an application for a permit for use.
    • reflects the applicant's material largely as I have described above, including reference to the 1995 permit being still current in relation to the use.
    • refers to the only relevant permit triggers being under cl 33.02-4 of the planning scheme relating to buildings and works, and cl 52.05-8 relating to signage. The report notes at page 6 that, although a permit trigger exists for an industrial land use : 'The land use is established and the applicant is not seeking to alter use'.
    • comprehensively assesses the application against the relevant decision guidelines and policy for buildings and works under cl 33.02-4 of the planning scheme.
    • contains only a small section of the report (less than half a page within a 26-page report) dealing with 'use'. This does not assess the application as seeking permission for use, but acknowledges the establishment of the use under the 1995 permit, and earlier existing use rights, and the consistency of the existing use and development with state and local planning policies.
    • in relation to this section dealing with use, refers to state planning policy for air quality, including an aim to ensure separation between uses that have the potential to reduce amenity and sensitive uses (i.e. residential use and public open space). In this regard, the report notes that 'recommended buffer distances for Industrial Residual Air Emissions (EPA 1990) can be satisfied given the appropriate site location within the Industrial 2 Zone'.
16. Fourthly, the Council seeks to make something out of Argus (prior to the hearing or the filing of submissions) having amended paragraph 7 of its grounds. Argus had initially pleaded that its use was a Section 1 use in the Industrial 2 Zone and did not require a permit. That was clearly wrong, and was not supported by Argus' own permit application material and the permit history to which I have referred. When this was pointed out (indeed, by the Council), Argus amended paragraph 7 of its ground to instead plead:

The use of the Land for the purpose of 'fat rendering' and 'composting facility' is allowed by planning permit 2684 (issued 7 December 1997) and planning permit 95/313 (issued 4 September 1995), respectively, and clause 63 of Greater Dandenong Planning Scheme.

1. The Council's advocate contends in his written submissions[12] that Argus is now relying upon Permit 2684 and/or existing use rights, with the effect that it (Argus) is essentially now asserting that the whole 2010 permit is void. The Council also contends that Argus misconceives the operation of clause 63, and that an existing use can become subject to the restrictions of more recent permits. Save for something I will say later about the ability to attach use conditions to a development permit, I believe that it is actually the Council that misconceives the situation created through the amended ground.
2. As will be self-evident from my earlier background discussion, I consider that the amended paragraph 7 is factually correct. Moreover, Argus has never in this proceeding, and does not now, contend that the entire 2010 permit is void. It contends that it is a permit for buildings and works, and signage, and not for the 'use' of the composting facility. It seeks to impugn part of one permit condition, and not the whole permit. Implicitly, it accepts that the permit is valid in its authorisation of the specific buildings and works, and signage, referred to in the permit preamble.
3. Furthermore, the amended paragraph 7 uses the word 'respectively' after referring to the two earlier permits. It thus clearly references the 1995 permit as the basis for the authorisation of the 'use' of the compositing facility, rather than the 1997 permit and existing use rights for fat rendering. To the extent existing use rights and clause 63 are potentially now placed in issue by the Council:
   • Argus does not expressly rely on existing use rights as a basis for contesting Condition 23.3 in this proceeding. Moreover, in its reply to the further information request in 2010, Meinhardt had confirmed that the relevant use was authorised by the 1995 permit, and added: 'The requirements of Clause 63 (Existing Uses) are therefore not relevant to this application'. The Council did not assess the permit application under clause 63, but simply acknowledged that certain fat rendering activities had existing use rights.
   • paragraph 7 of Argus' amended grounds simply provides the factual background for the broader history of permitted or authorised use of the land, including the fat rendering. The 2010 permit is however for 'buildings and works ... associated with an existing use (composting facility)', rather than the fat rendering. The Council's focus on existing use rights is confusing in this context.
   • even if clause 63 applies, Argus' actions are entirely consistent with clause 63.05 in that the existing use rights that are established (albeit only for the fat rendering) can only continue without a permit for that existing use if a permit is granted for buildings and works. That has occurred through the 2010 permit.
   • it is established planning law that an existing use right may be continued and intensified, even with additional amenity impacts, provided the purpose of the use does not change. Clause 63.05 seeks to prevent further damage to amenity through a change in activities beyond an established use right, but the Council does not here allege any such change in any activity. To relevant purpose of use here is the composting facility, and that use has not changed from that approved under the 1995 permit.
4. Fifthly, the Council relies upon conditions in the 2010 permit pertaining to use (primarily condition 2 requiring an updated EMP) as establishing that the 2010 permit is at least partly for use. This does not follow, for reasons including the following:
   • the conditions on a permit do not enlarge what is actually permitted in the permit preamble. The conditions should be read by reference to what the permit actually allows, rather than the reverse.
   • the fact that there may be conditions on the permit that partly relate to the use does not, of itself, make it a 'use' permit. A permit for buildings and works may, in certain circumstances, contain a condition that relates to the use of those buildings and works provided the condition meets the usual tests for a valid permit condition.
   • read carefully, condition 2 (requiring an updated EMP) is actually expressed as a condition precedent to the endorsement of plans for the buildings and works. Given what the permit actually allows, the condition has been drafted ambiguously by the Council, and I accept that it does purport to require that the use must be conducted in accordance with the EMP. I am not required to resolve that ambiguity save to note that the original EMP has its origins in the EPA licensing process, and clearly references the EPA regulatory regime for odour emissions. The EMP thus has a broader non-planning function. It does not provide within it any role for the Council. There is nonetheless an arguable nexus between the buildings and works permitted in the 2010 permit (including construction of the windrows) and aspects of the EMP, and Argus does not appear to contend otherwise nor resile from the EMP.
5. Sixthly, the Council implicitly contends, by reference to all of the above that the Council and Argus, or at least the Council alone, intended that the 2010 permit be an omnibus permit that also covered 'use'. Generally, however, intent is irrelevant to the construction of a permit (as opposed, say, to the construction of a contract where intent is relevant). As I have said, the permit must be construed according to its terms, with reference to relevant extraneous documents such as the application material only where the permit is ambiguous or unclear.
6. In reality, I suspect that none of Argus, its consultant Meinhardt, or the Council thought too carefully about the language that was being used in the application material or the permit conditions. There are occasional inconsistencies and inelegant drafting in these documents. This is unfortunate, but perhaps not unexpected in documents prepared in an iterative planning process by non-lawyers. I have to make the best of what is in front of me. In that regard, I think it important to return to the permit triggers identified in 2010 by both the applicant and the Council by reference to the Greater Dandenong Planning Scheme, the application itself, and to the permit preamble. These all refer to a permit being sought, and a permit being granted, for specified buildings and works, and for signage, and not for any use other than the signage.
7. Argus did not need a permit for use. It already held a permit authorising the use. The view I have reached is thus also consistent with authority to similar effect, where a court held that an application for a permit purporting to be only for development should not be construed as being also for use, where the applicant already had a permit for use and did not require a further permit for use[13].
8. It follows from all of the above that the Council has not satisfied me that the 2010 permit is (other than for the signage) a 'use' permit, nor is it a consolidated or omnibus permit that includes use having regard to the background matters I have outlined. Conversely, Argus has satisfied me that, properly characterised, the 2010 permit is a permit for the specified buildings and works that it expressly authorises. It is not a permit for the use of the composting facility. That authorisation is found in the 1995 permit, which continues in force.
9. As a final comment on these matters, I might note that there are occasions when a permit is granted on the basis that it becomes an omnibus permit that supersedes prior permits. However, in my experience, that ordinarily occurs with some express reference in the omnibus permit or, alternatively, with a condition precedent requiring the cancellation or abandonment of pre-existing permits or entitlements. No such evidence exists here.
10. In my view, the Council has misconceived the nature of this proceeding by focussing on whether the 2010 permit is one for 'use' or 'development'. It has pursued a consequential argument that, if the 2010 permit is a permit for the use of the composting facility, the condition 23.3 relating to that use is valid. This is presumably on the basis of a direct nexus that would then arguably exist between the condition and the use permission granted. As will be seen, that is not the correct test nor, given my findings about the 2010 permit, has the Council in my view even got to first base with that approach.

1. Given this background and relevant findings, I now turn to the three specific matters raised by Argus in its s 149A application.

The validity of Condition 23.3 of the 2010 permit

1. The first declaration sought by Argus is that Condition 23.3 of the 2010 permit is invalid insofar as it relates to the use of the land. I have earlier set out the relevant part of this condition.
2. Argus essentially claims that the 2010 permit is only for development (other than for the signage), and that Condition 23.3 is not valid, or cannot be validly enforced, by the Council to control odour emissions from a use that is authorised by another permit - i.e. the 1995 permit for the composting facility. Argus also claims, by reference to the usual test for the validity of a permit condition, that the relevant part of Condition 23.3 is not reasonably capable of being regarded as related to the implementation of a relevant planning policy.
3. The Council contended that Argus could not belatedly seek to strike down the condition as invalid, having accepted the benefit of the permit (in terms of undertaking the development and/or use authorised by the permit), and having not sought to review the condition under s 80 of the Planning and Environment Act 1987 when the permit first issued. These are matters that may be relevant to the discretion to grant the relief sought, but I do not consider that Argus is in some way estopped on this basis from raising the issue of validity. More particularly, it is only because of the way the Council is now seeking to interpret and enforce the permit condition that Argus has sought to bring the matter before VCAT.

What is the test for the validity of a permit condition?

1. It is necessary to distinguish between the validity of a permit condition, and its reasonableness or appropriateness as a matter of planning merit.
2. It will be apparent from some of the background material I have discussed earlier in these reasons that I believe there would have at least been a legitimate debate to be had about the planning merits of Condition 23.3 being imposed on a permit for an industry with the potential for off-site amenity impacts in an Industrial 2 Zone, had the condition been reviewed under s 80 of the Planning and Environment Act 1987 on such basis. Moreover, there may still be a legitimate debate to be had about the changed circumstances, and whether that condition is still appropriate (or whether the permit should be amended) having regard to the sale, rezoning and development of what had previously been the buffer to the north of the Argus land. I have not formed any concluded view on those issues of planning merit. They are not matters that fall within my jurisdiction under s 149A. Argus may need to embark on a process under ss 72 or 87 of the Planning and Environment Act 1987 (if available) to amend the permit if it wants to pursue those matters.
3. However, the question of the validity of the condition is different.
4. In Stogdale v Stonnington City Council & Ors[14], Osborn J stated:

[36] The test of the validity of a planning permit condition is that which was propounded by Harris J in 271 William Street Pty Ltd v City of Melbourne[15], namely: is the condition reasonably capable of being related to the implementation of planning policy when the scope of such policy is ascertained from the relevant planning legislation and the relevant planning scheme? As Ashley J held in Crichton v Moorabbin[16] this test remains the test under the Planning and Environment Act 1987.

[38] In the 271 William Street case Harris J referred to and applied the test stated by the High Court in Allen Commercial Construction Pty Ltd v The Council of the Municipality of North Sydney[17] in the judgment of Walsh J at p.499 (with whom Barwick CJ, Menzies and Windeyer JJ agreed):

"In accordance with a well-recognised rule, section 40(1) (i.e. of the North Sydney Planning Scheme Ordinance) ought to be understood ... not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised as ascertained from a consideration of the Scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd v Buckingham County Council (1961) AC 636 at p684, as being 'the implementation of planning policy', provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained."

1. The test for the validity of a permit condition is therefore is that stated by the High Court in Allen Constructions, and as described and applied in Victoria in cases such as 271 William Street.
2. There has been a tendency in some decisions of VCAT and its predecessors[18] to apply an additional or alternative test; namely the English test stated in Pyx Granite Co. Ltd v Ministry for Housing and Local Government[19]. The Pyx Granite test is that, to be valid, a permit condition must fairly and reasonably relate to the permitted development or use, and that there must be a real connection between the permission granted and the limitation placed upon it. This is a narrower test. Confusion has perhaps arisen because this test has found some past favour with the courts - e.g. in Protean (Holdings) Ltd v Environment Protection Authority[20]. That decision referred to the test in Allen Constructions (and the decision in 271 William Street), but then preferred the more general test in Pyx Granite. Protean Holdings is also perhaps interesting for its facts. It was held that an EPA licence authorising emissions from two chimney stacks could not be used to validly impose a condition about the general use of the balance of the premises. Protean Holdings is however a decision about an EPA licence condition rather than a planning permit condition.
3. Whilst the parties before me did not delve too far into this issue, there was an element of confusion in the way each put its case. At one level, in this proceeding, Argus is alleging that Condition 23.3 is invalid on the basis that it is simply a 'use' condition on a 'buildings and works' permit, and that the condition does not fairly relate to the permission granted. The Council also attempted to approach the matter in a similar way, contending that the 2010 permit was a 'use' permit, with the Condition 23.3 contended to be valid because it related to that use. I have earlier construed the 2010 permit as primarily a buildings and works permit. But in either event, the attempt to apply a Pyx Granite test by default in this proceeding is in error.
4. In Stogdale[21], Osborn J also distinguished between two distinct principles - one relating to the grant of the permit, and the second relating to conditions on the permit.
5. The first principle is that the purposes by which a permit may be granted or refused are constrained by reference to specific provisions of the planning scheme or a particular control, despite the broad terms and general considerations in the Act and scheme - sometimes referred to as the 'National Trust principle'.[22] In VNPA Inc. v Southern Grampians SC[23], Morris J had stated that the scope of relevant considerations in the exercise of a discretion under a planning scheme provision is to be ascertained by reference to the purpose for which the discretion has been conferred, rather than to broader policy considerations stemming from clause 65 of the planning scheme or s 60 of the Planning and Environment Act 1987.
6. The second principle, relating to permit conditions, is different. The relevant power of a responsible authority to impose a condition is very broadly stated in s 62(2); namely that "The responsible authority may include any other condition that it thinks fit ...". In Stogdale, Osborn J noted that, unlike the first principle that constrains the purposes by which a permit may be granted, this second principle potentially amplifies the purpose relevant to the consequential power to impose conditions. This second principle allows reference to the implementation of planning policy, under the wider test in Allen Constructions. The decision in Stogdale clearly adopts this wider test, and makes no reference to Pyx Granite.
7. As in Stogdale, it is the second principle that is relevant in this proceeding.
8. In Melbourne Water Corporation v Domus Design Pty Ltd[24], Gillard J confirmed the position even more forcefully, expressly stating that the narrower English test in Pyx Granite was not a test for the validity of a permit condition in Australia, and that the only Australian test was the wider test in Allen Constructions.
9. Whatever other views may exist on this question, the decisions in Stogdale and Domus must be taken to represent the current position in Victoria, by which VCAT is bound. Unfortunately, as I have indicated, neither party in this case dealt particularly well with this issue, albeit that Argus at least, in part of its written submissions at the hearing[25], correctly identified the test for validity with specific reference to Domus.
10. The test of the validity of a planning permit condition is therefore, adopting the express words in Stogdale, whether the condition is reasonably capable of being related to the implementation of planning policy when the scope of such policy is ascertained from the relevant planning legislation and the relevant planning scheme. To this should be added the corollary in Domus that, where the power to impose a condition is expressed in general terms, a consideration of relevant planning policy may 'not necessarily be confined to planning legislation and schemes'. That potentially brings into consideration relevant planning policy derived from other sources, although that will be a rare situation given the framework that now exists with state and local planning policy frameworks within planning schemes. It does however raise the potential for complementary legislation to be considered where it has a bearing on planning policy - here, perhaps, the overlapping EPA regulatory regime.
11. Indeed, the SPPF set out in the planning scheme (and which is clearly part of the relevant planning policy to be considered) expressly refers to and/or adopts parts of the EPA regulatory regime, including relevant SEPPs and the publications and policies on industrial residual air emissions to which I have referred - see for example clause 13.04 of the SPPF.
12. It is perhaps also worth noting that, in Stogdale, Osborn J emphasised that whether a condition is reasonably capable of being related to the implementation of planning policy in the relevant sense will remain a question of fact in each case[26].
13. The decision in 271 William Street is a good example of just how broad the answer to this question may be in an individual case when the test in Allen Constructions is applied (i.e. without the additional Pyx Granite test). A condition requiring provision of a splay corner was held to be valid having regard to a Council planning policy to facilitate pedestrian movement, despite it being acknowledged that the requirement for the splay was not directly generated by the use and development authorised by the permit. The development simply provided an occasion for the incidental implementation of the policy[27]. Whilst one may be initially surprised by this decision, it reinforces the position that the validity of a condition, and the merits or nexus or reasonableness of a condition, are potentially quite different concepts.
14. Under s 80 of the Planning and Environment Act 1987, there is a separate and time-limited power to review the merits or reasonableness of a condition[28]. In the present case, Argus had not sought to review Condition 23.3 within that time. It cannot use an attack on the validity of the condition under s 149A as a belated 'back door' attack on the merits of the condition.
15. One consequence of the wider test in Allen Constructions is that it partly removes from the debate the often controversial issue of the extent to which a 'use' condition can or should be placed on a 'buildings and works' permit - at least in relation to the 'validity' of the condition. Even from a broader planning merits perspective, it is now generally accepted that a 'use' condition may, in appropriate circumstances, be placed on a development permit. It is certainly not invalid, of itself, on such basis. Having said that, the proper characterisation of the permit may still be relevant to its enforcement.
16. It is true that Argus seeks a declaration that 'Condition 23.3' of the 2010 permit is invalid '... insofar as it relates to the use' of the land. Argus is attacking only part of a permit condition, and only in relation to use rather than development. Argus is essentially seeking to impugn the operational validity or enforceability of the condition in a particular way, given its view that the Council is seeking to interpret and enforce the permit condition in an unintended and wrong manner. However, although Argus is seeking an outcome that differentiates between use and development, its submissions at least purport to do so by reference to the proper test for validity.

1. Here, Condition 23 was imposed by the Council on the 2010 permit under the general power in s 62(2) of the Planning and Environment Act 1987 - i.e. any condition that it thinks fit.
2. In Domus, it was said that, in order to determine the validity of a condition imposed in a planning matter where the power to impose a condition is expressed in general terms, VCAT is required to undertake a step by step process by[29]:
   • identifying and stating the terms of the condition.
   • considering and determining the relevant planning policy by considering all relevant legislation dealing with the topic, which would not necessarily be confined to planning legislation and planning schemes.
   • considering and determining whether the condition was reasonably capable of being related to the implementation of that planning policy.
3. I have already undertaken Step 1 in identifying and setting out the condition. I will deal later with the fact that Argus only seeks to impugn part of a condition - i.e. Condition 23.3.
4. In its written submissions at the hearing, Argus purported to deal with the relevant planning scheme provisions and policy, albeit in a general manner. At the hearing, the Council did not address the test in Domus at all, nor deal with the relevant planning scheme provisions and policy.
5. Part of the relevant planning policy is evident in the background discussion above, and some of the findings I have made. However, only some of the background and findings pertain directly to the question of validity of the permit condition, and whether the condition is reasonably capable of being related to the implementation of planning policy when the scope of such policy is ascertained from the relevant planning legislation and the relevant planning scheme.
6. The Council's folder of documents contained reference to an officer report that did, in turn, refer to various planning scheme provisions and policy, but the Council did not take me to that material at the hearing either. Indeed, the Council's folder also contained a number of errors; for example, by mistakenly including the Council's tourism policy rather than its industry policy.
7. I was therefore placed in some difficulty in properly responding to the approach proposed in Step 2 in Domus. Accordingly, by interim order dated 27 August 2015, I set out these concerns and required further submissions from the parties with an opportunity for replies. This process, and the consideration of the responses, has taken some time.

1. In considering the question of validity, I agree with Argus that the relevant planning policy will generally be that existing at the time the 2010 permit was issued. [I say 'generally' because it is conceivable that some permit conditions may, in context, need to be interpreted prospectively. The parties made no submissions about this in relation to Condition 23.3, and I form no concluded view about this.]
2. I note that, in most of the cases, including Stogdale and Domus, the reference to the relevant planning policy uses the word 'policy' in the singular. I do not consider much turns on that. However, it potentially begs the question as to whether the relevant planning policy should be ascertained after balancing a number of potentially competing policies, or whether it is sufficient if there is a single policy amongst many that provides the basis for the validity of the condition.
3. I agree with the Council's supplementary submission that there is some danger in attempting to balance competing policies as part of this task, as this would introduce potential issues of weight and merits and discretion into the task of determining a question of validity. However, it may be that a specific policy will be more relevant than a general parenthood statement, in determining the 'relevant' planning policy for the purpose of applying the test for validity. Subject to this, I prefer the view that it would be sufficient to meet the test for validity if the permit condition is justified by one or more relevant planning policies, even if there are other planning policies that might not be said to directly support the condition.
4. Indeed, the decision in 271 William Street, to which I have referred, is an example of this. The court there relied upon a single but specific Council policy to facilitate pedestrian movement, despite it being acknowledged that the requirement for a splay was not generated by the use and development authorised by the permit, and without discussing other planning policies that may have been relevant to that use and development.
5. In its supplementary submission, the Council then contended that it is sufficient if the condition is justified by one or more objectives of the Planning and Environment Act 1987, irrespective of whether there is a related relevant policy in the planning scheme[30]. The Council placed great weight on the objectives of planning set out in s 4(1) of the Act, including the objectives 'to provide for the fair, orderly, economic and sustainable use, and development of land' and 'to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria'. [The items in italics were emphasised by the Council.] The Council also referred to eight of the objectives of the planning framework set out in s 4(2) of the Act, including the objectives 'to ensure sound, strategic planning and coordinated action at state, regional and municipal levels', 'to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes' and 'to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities'.
6. Surprisingly, the Council omitted mentioning the objective of the planning framework set out in s 4(2)(b) of the Act, namely the objective:

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

1. I consider that the Council has misconceived the test for validity in seeking to tie the validity of the condition almost exclusively to the very broad and general objectives of planning under the Planning and Environment Act 1987, and to contend that this is the case irrespective of whether there is a related relevant policy in the planning scheme. If that were the case, then it is hard to envisage any permit condition being held to be invalid. It also runs contrary to the precise terms in which the test has been expressed by the courts.
2. In my opinion, there is a difference between the general 'objectives' of planning, and the 'relevant planning policy' that is to be ascertained by reference to the relevant legislation and planning scheme. Section 4(2)(b) of the Planning and Environment Act 1987 implicitly recognises this, and provides that it is the planning scheme that is the principal way of setting out relevant planning policies. Anyone familiar with the VPP-based planning schemes in Victoria understands that the very detailed state and local planning policy framework contained in each planning scheme is a fundamental component of the Victorian planning system, and comprises the essential (and relevant) planning policy that guides the exercise of discretion in planning decision making. This is also confirmed in the stated purposes of both the SPPF and LPPF[31].
3. It follows that I do not accept the Council argument that the broad objectives of planning in the Act alone reflect what might comprise the relevant planning policy, or are sufficient alone to justify Condition 23.3 in this case. I consider it appropriate, in the context of this case, to ascertain the relevant planning policy primarily by reference to the state and local planning policy framework in the Greater Dandenong Planning Scheme, albeit that I would be satisfied if there was one identifiable and relevant planning policy in support of the condition, and even if there are other planning policies that might not be said to directly support the condition.
4. I turn then to these policies.
5. Through their submissions, the parties referred me variously to SPPF clauses from the period around 2010, all inserted into the SPPF on 20 September 2010[32], and in force when the 2010 permit was granted in November 2010. For example:
   • clause 13.04-2 relating to Air Quality. There is an objective to assist the protection and improvement of air quality generally, but this seeks to ensure, wherever possible, that there is a suitable separation between uses that reduce amenity and sensitive land uses. The policy itself is to consider this having regard to the EPA's SEPP (Air Quality), and the 'Recommended Buffer Distances for Industrial Residual Air Emissions (EPA, 1990)[33].
   • clause 17.02 relating to Industry. This contains an objective in clause 17.02-1 to ensure the availability of land for industry, including strategies to protect industrial activity in industrial zones from the encroachment of unplanned commercial, residential and other sensitive uses which would adversely affect industry viability.
   • there is a specific objective in clause 17.02-2 to protect industrial land of state significance, referring specifically to the land in Dandenong South (i.e. the Industrial 2 Zone land) as well as similar land in Campbellfield/Thomastown, and Laverton North. The strategies acknowledge the need to protect this land from inappropriate development, and to maintain adequate buffer distances from sensitive or incompatible uses.
   • clause 19.03-5, acknowledges the importance of waste and resource recovery (which includes recycling and composting) with the need to establish new sites, and to ensure adequate buffers are protected and maintained.
6. Another aid to considering what was the relevant planning policy at the time is the officer report prepared in relation to the grant of the 2010 permit. It sets out at quite some length (at pages 7 to 15) an examination of relevant parts of the SPPF and LPPF and other Council material, including a discussion of matters relating to sustainability and built form.
7. The officer report comments expressly that 'the existing use and development is consistent with the local and state policies identified in the Greater Dandenong Planning Scheme'. It notes the SPPF for air quality, including an aim to ensure separation between uses that have the potential to reduce amenity and sensitive uses, and further notes that 'recommended buffer distances for Industrial Residual Air Emissions (EPA 1990) can be satisfied given the appropriate site location within the Industrial 2 Zone'. The officer is correctly referring to clause 13.04-2 of the SPPF relating to Air Quality (referred to above), by in turn referencing the EPA policy. The officer report also references clause 52.10 dealing with uses with adverse amenity potential, and concludes that the threshold distances comply with that clause and that 'the extensive setbacks from the nearest residential areas are more than sufficient to ensure there will be no amenity issues'. (my underlining)
8. Despite these policies in the SPPF, the Council's municipal strategic statement (which forms part of the LPPF in the Greater Dandenong Planning Scheme), as in force at the time the 2010 permit was issued, contain relevant clauses. These include the following:
   • clause 21.04-3 relating to 'Environmental issues' for Industry indicates that 'While Greater Dandenong is home to the State significant Industrial 2 Zone, the challenge is to protect this zone for its intended purpose and to carefully manage the interface between this zone and other zones'.
   • the same clause also states that 'Industry also needs to manage the challenge of noise pollution, air pollution and reducing other adverse impacts on the environment ...'
   • the mechanisms set out to give effect to these objectives include a strategy to 'encourage existing industries to improve their sites and operating conditions to contribute positively to the image and amenity of the municipality' and 'to ensure industrial uses do not impact adversely on the amenity and safety of surrounding land uses and the environment'.
9. More particularly, one of the purposes of the Industrial 2 Zone within which the land is situated is 'to provide for manufacturing industry, the storage and distribution of goods and associated facilities in a manner which does not affect the safety and amenity of local communities' (my underlining). Pursuant to clause 33.02-2, an application to use land in the zone for industry must be accompanied by information about the likely effects, if any, on the neighbourhood, including... air-borne emissions. The decision guidelines in relation to the grant of a permit under clause 33.02-2 also require consideration of 'The effect that the use may have on nearby existing or proposed residential areas or other uses which are sensitive to industrial off-site effects, having regard to any comments or directions of the referral authorities'.
10. It can be seen therefore that the relevant planning policy is not necessarily all one way, as Argus has essentially contended.

1. The third and final step identified in Domus is to consider and determine whether the condition was reasonably capable of being related to the implementation of the identified relevant planning policy.
2. At first blush, one might contend that 'amenity' is at the heart of any planning decision, and that a general amenity condition should always be valid. However, I consider that the lengthy discussion in these reasons exposes that a more sophisticated response is required.
3. That said, I nonetheless consider that Condition 23.3 is valid having regard to the breadth of the test for permit validity in Australia. In reaching this view, I consider that there is a sufficient basis for the condition in clause 21.04-3 relating to 'Environmental issues' for Industry, and in the purposes, application requirements and decision guidelines in the Industrial 2 Zone itself.
4. I accept the submission by Argus that there is strong policy support in the Greater Dandenong Planning Scheme to protect heavy industry in the Industrial 2 Zone, and to acknowledge that an industry located or being permitted in this zone will likely have some off-site amenity impacts. The expectation of the policy is that uses locating or being permitted in this zone, or being intensified through additional buildings and works, will have those potential off-site amenity impacts managed with recommended threshold (separation) distances within which a level of amenity impact is acknowledged. Most particularly, the clear emphasis of planning policy is to manage off-site amenity impacts so that the amenity of nearby residential and sensitive use areas, including public open space, hospitals, education facilities etc. is not unreasonably impacted.
5. Whilst Condition 23.3 might be said to run somewhat counter to this strong policy support for heavy industry in the Industrial 2 Zone, and its acknowledgement of some off-site amenity impacts, the relevant planning policy is not absolute. Even that statement of planning policy acknowledges 'amenity' as a relevant planning issue. The relevant planning policy is tempered with references to the need to carefully manage the interface between zones - even the State significant Industrial 2 Zone in Dandenong.
6. It cannot therefore be said that Condition 23.3 is not 'reasonably capable of being related to the implementation of the identified relevant planning policy'. It is clearly related to the policy I have ascertained and outlined above.
7. It must also be noted that Condition 23.3 also states that 'The amenity of the area must not be detrimentally affected ...'. The condition itself is not stated in any absolute terms that prevents any residual air emissions, or any off-site amenity impacts. Indeed, as will be seen, the proper interpretation (and enforceability) of the condition depends on what might comprise 'the amenity of the area' and the extent to which it might be 'detrimentally affected' by anything done under the 2010 permit in given circumstances.
8. Clearly also, Condition 23.3 is not limited to amenity impacts to adjacent land. The condition would have valid effect for something done under the 2010 permit, if it led to an emission of smell, for example, well beyond the recommended separation distance to nearby residential areas, and detrimentally affected the amenity of those residential areas. Argus cannot really contend that the condition could be valid in this respect, but not otherwise.
9. This in my view is sufficient to dispose of the issue of validity.
10. There are however some other issues that would complicate the position for Argus in challenging the validity of Condition 23.3, that were not adequately dealt with at the hearing. For example, Argus seeks to impugn only part of Condition 23 - i.e. Condition 23.3. This is problematic, as it carries with it the implication that Argus concedes that balance of Condition 23 is valid. However, the other parts of Condition 23 deal with discrete issues such as transport, the appearance of buildings and works, the presence of vermin etc. Moreover, the other emissions referred to within Condition 23.3 (noise, artificial light, vibration, waste water etc.) are also discrete, and have potentially a very different policy basis for implementation. I was not provided with sufficient information about the relevant planning policy basis for the condition insofar as it relates to other emissions.
11. Consideration of these issues would have necessitated a consequential consideration of whether Condition 23.3 is wholly or partly invalid and, whether some part of it is capable of being severed, if that were possible. Argus' submissions skirted around this issue and, in its supplementary submissions, the Council queried whether the condition could be read down or severed in this way. Given my finding that the condition is valid, I do not need to deal with these issues.
12. The Council also contended that it was not appropriate or practicable in the planning jurisdiction to undertake a forensic examination of each word in a permit condition. It is the substance of the condition that needs to be justified. There needs to be some recognition that planning conditions are drafted by planners, and are often standardised and used as part of a broader regulatory system. This requires a degree of efficiency. I have some sympathy with this view, albeit that I would not have held Condition 23.3 to be valid on this basis alone, if it was not related to the implementation of a relevant planning policy.

The standard of amenity in relation to odour in an Industrial 3 Zone

1. The second contention raised by Argus is that, if Condition 23.3 is valid, the standard of amenity relating to odour is substantially less in an Industrial 3 Zone than a residential area or public area forming part of the local community.
2. Although also framed as an application for a declaration, this second contention seems to more generally come within VCAT's broader power under s 149A(1)(a) of the Planning and Environment Act 1987, to provide a determination in relation to the interpretation of a permit in relation to land or a particular use or development of land. I have treated Argus' contention in this way.
3. The submissions on this issue proceeded on a somewhat limited and theoretical basis, having regard to the background documents but without formal evidence about specific amenity impacts. The response of VCAT is therefore similarly limited.
4. As I have indicated above, the relevant part of Condition 23.3 states that 'The amenity of the area must not be detrimentally affected by the use or development on the land, through the... emission of... smell...'. If the Council seeks an enforcement order, or seeks to prosecute, in relation to an alleged breach of this condition, there may be a legitimate debate about what might comprise 'the amenity of the area' and the extent to which it might be 'detrimentally affected' by anything done under the 2010 permit in given circumstances.

Detrimentally affected 'by the use and development ...'

1. Condition 23.3 refers to the amenity not being detrimentally affected through the emission of smell '... by the use or development on the land'. Although I have held that the condition is valid, the condition must still be interpreted according to its terms.
2. A question therefore arises as to whether 'the' use or development (to which Condition 23.3 refers) comprises only the specific use or development authorised by the 2010 permit, or the natural and reasonable consequences arising from such use or development, or whether it is referring to 'any' use or development on the land.
3. I have already found that, apart from signage, the 2010 permit is a permit for buildings and works. Included within the authorised buildings and works is the construction of windrows. I understand that this involved some minor relocation of the windrows from where they had been originally located and, moreover, that the permit for 'construction' was to legitimise works that had already been undertaken.
4. I have also found that the day-to-day stockpiling or aerating of compost within these windrows is not part of the authorised construction under the 2010 permit, but part of the separately and pre-authorised use of the land as a compositing facility under the 1995 permit.
5. Given the interrelationship between the two permits, the question that arises is whether the emission of smell giving rise to the current complaints and potential enforcement action has arisen as a consequence of the buildings and works under the 2010 permit, or from the pre-existing use which may have been intensified or changed as a result of those buildings and works, or whether the emission of smell has arisen from the pre-existing use authorised under the 1995 permit irrespective of the additional buildings and works authorised under the 2010 permit. The first two matters have a relationship with the use and development under the 2010 permit, but the third matter does not.
6. This is a complex question, which may need to be the subject of evidence in any future enforcement action or prosecution. There is perhaps something to be said for the argument that, in an enforcement relating to the use of the land as a composting facility, this should be tied to the permit and conditions that clearly pertain to such use, rather than to a subsequent permit and conditions (albeit valid) that do not have a clear relationship with the use. The parties did not address this question well in their submissions, nor in supplementary submissions, so I cannot finally decide this matter in this case.
7. I have nonetheless already indicated that it may be that the general amenity condition in the 1995 permit (i.e. Condition 3) provides a sounder basis for any breach that relates to 'use'. That may however be a matter of argument and evidence in any particular enforcement, and I was not asked to make any express determination about the 1995 permit or its Condition 3.

1. It is almost trite to observe that the amenity of an area, and the extent to which it may be detrimentally affected, will depend very much on its context. I agree with the Council that the amenity protection that may be afforded to workers in industrial settings raises complex questions that cannot easily be answered in a generic theoretical manner. [In saying that, I do not agree with the Council's submission that the protection of amenity is akin to protection from nuisance in such a setting. I consider the common law tort of nuisance, and the planning concept of amenity, to be different.]
2. It is also almost trite to observe that the amenity of a worker in an Industrial 3 Zone immediately adjacent to a pre-existing heavy industry in an Industrial 2 Zone will necessarily be different to the amenity of a person residing in the central core of a residential zone. Although Argus contends that the amenity would be 'substantially less', amenity is a nebulous concept and I am not convinced that quantitative terms such as 'substantially less' are always helpful. Rather, I consider that the amenity will be qualitatively different having regard to its context.
3. In saying this, I am satisfied that the reference in Condition 23.3 to 'the amenity of the area' is not confined spatially to the amenity of the residential area beyond the threshold distance under clause 52.10 for the Argus operations. The condition is not intended to solely protect residential amenity in that more distant area. I disagree with the contention of Argus to the contrary. There is nothing in the wording of the condition to justify such an interpretation, and I do not consider that the reference to the 'area' was intended, by reference to the policy framework, to exclude other land in the Industrial 2 Zone or adjacent land in the Industrial 3 zone. The 'area' is simply the undefined area in the vicinity of the Argus land, including industrial-zoned land, within which different levels of amenity may qualitatively exist depending upon the zoning and land use patterns.
4. In its submissions, the Council referred to the decision in Metroll Victoria Pty Ltd v Wyndham City Council[34]. Subject to two important differences, that decision provides some useful analogies, as it was an application for an interim enforcement order in relation to a breach, amongst other things, of a general amenity condition similar to the condition in this case. There, the allegation was one of excessive noise emissions from a power station in another State significant Industrial 2 Zone, having a detrimental affect on an adjoining industrial user (Metroll) in an Industrial 3 Zone. There, the Tribunal stated:
   1. The more critical issue to determine is what the relevant "amenity" of the locality is. This will depend upon what sort of amenity this particular type of locality can reasonably expect to enjoy. For example, the amenity that industrially zoned land can reasonably expect to enjoy is different to the amenity that residentially zoned land can expect.
   2. The subject land is in an Industrial 2 Zone. The purpose of the Industrial 2 Zone (so far as relevant) is "to provide for manufacturing industry, storage and distribution of goods in associated facilities in a manner which does not affect the safety and amenity of local communities". I do not consider that the local communities referred to in this purpose include land such as the land opposite in the Industrial 3 Zone, but rather the term refers to any local residential communities. The Industrial 2 Zone is generally applied to large industrial areas which have a core more than 15,000 metres from residential areas and are of state significance. (Other purposes of the zone refer to this core area). Special requirements apply to the core area of this zone (i.e. the area more than 15,000 metres from a residential zone) as these areas are a resource intended to be protected for use only by uses which require that degree of separation from residential and similar areas.
   3. The Metroll property is within an Industrial 3 Zone. Its purposes (so far as relevant) include:

To provide a buffer between the Industrial 1 Zone or Industrial 2 Zone and local communities, which allows for industries and associated uses compatible with the nearby community.

1. Again, I consider that the local communities referred to in the purpose of this zone refer to local residential communities. The Industrial 3 Zone is designed to be applied as a buffer between the Industrial 1 or 2 Zone and residential areas, if necessary, and that is the likely reason why it has been applied to the Metroll land if regard is had to the physical relationship between the Industrial 2 Zone, which the subject land is on the periphery of, and the nearby residential area of Laverton to the south west, which is included in a Residential 1 Zone.
2. The amenity that Metroll can therefore expect to enjoy is the amenity of land in an industrial zone at the interface between an Industrial 2 Zone and an Industrial 3 Zone.
3. There is no question that use of the subject land for the purpose of a power station is an appropriate use of the land or that the Industrial 2 Zone is a suitable zone where uses such as the power station, which may have off site impacts such as noise and vibration, may be located. However, that does not mean that uses within an Industrial 2 Zone can operate without any regard to their off-site effects or that their off-site effects can be unconstrained. The off -site effects generated by such uses may be controlled in various ways, for example by planning permit conditions or EPA licences and works approvals. There may be various standards that use and development should adhere to, for example Australian Standards or State Environment Protection Policies, although such standards or policies will not necessarily cover the field in relation to every aspect of a use or development.

1. This does not mean though that an industry can ignore its neighbours in terms of noise emissions. It is for this reason that conditions such as condition 3 are frequently included in permits. They are intended to ensure that the use does not cause a nuisance by any of the ways specified. In the Industrial 3 Zone it is a planning scheme requirement that the use must not adversely affect the amenity of the neighbourhood, including through the emission of noise and vibration. Whilst there is no corresponding provision in the Industrial 2 Zone, the decision guidelines in clause 33.02-2 of the planning scheme require consideration of likely effects on the neighbourhood, including noise levels; clause 65.01 requires consideration of the effect on the amenity of the area; and section 60(1)(e) of the Act requires consideration of any significant effects which the responsible authority considers a use or development may have on the environment. All these considerations mean that the council's decision to include condition 3 in the permit (a condition which was not appealed against by Snowy Hydro at the time the permit was granted) was a reasonable condition to include as a condition that was intended to benefit other properties in the locality.
2. The uncontested evidence is that the power station is adversely affecting the health and wellbeing of Metroll employees and interfering with their ability to work by reason of the emission of noise and vibration.
3. The Metroll building predates use and development of the subject land. It is quite common for a factory in an industrial area to have offices associated with it. The Metroll office is directly opposite the subject land. It is not an unusual use or a super-sensitive use. I consider it is reasonable to expect that even in an industrial zone, a new use or development will take account of the type of use and development that can normally be expected to be found within that type of locality. In the present case this means that any use or development of the subject land for the purpose of a power station should be designed to ensure that a reasonable working environment can be maintained within the Metroll building.
4. I have included paragraphs 77 and 78 in the lengthy quote above, because they expose some potential distinguishing factors from the present situation:
   • first, in Metroll, the adjoining industrial user and complainant in that case was the pre-existing use, and had operated for some time before the power station was constructed. The 'offending' power station was therefore the agent of change in that matter, and the inclusion of a general amenity condition in its permit might therefore have had a more reasoned justification, and be read in a different context. In the present case, it is the adjoining industrial users (and apparent complainants) that are the agents of change, locating within a known buffer to the pre-existing use.
   • secondly, the 'uncontested evidence' in Metroll was that the emissions were affecting human health. That was obviously at an extreme end of what may constitute a detrimental affect on amenity, even within an industrial area. There is no similar evidence before me in this case.
5. That said, there are some similarities in the regulatory frameworks for noise and odour, with an overlap in the planning and EPA policies. The decision in Metroll usefully reinforces the principle that the relevant amenity to be enjoyed in a situation such as this is the amenity of industrial land in an industrial zone at an interface with a State significant Industrial 2 zone. This means that an adjoining land user in the interface zone should have some expectation of off-site amenity impacts from the adjoining heavy industrial use. Equally, however, the heavy industry cannot completely ignore its immediate neighbours.
6. There is thus a planning balance to be struck, although where this balance is actually struck within the range of competing expectations between adjacent land users will depend on the circumstances of each case. In this case, the relevant history and planning policy would suggest that the balance may somewhat favour Argus, but not absolutely.
7. I have mentioned that an adjoining land-user undertaking a non-sensitive use in the interface Industrial 3 Zone, and within the Argus 'buffer', must have a reasonable and objective expectation of some off-site amenity impacts from the pre-existing heavy industry in the immediately adjacent Industrial 2 Zone. The extent of that expectation in all its contexts - including spatially, temporally, environmentally, as a matter of health and well-being, and generally - will obviously be at the crux of any enforcement action if there is an alleged breach of a general amenity condition relating to an odour emission.
8. In this case, I have set out the background and findings at quite some length, in the hope that it may provide some assistance as to the way in which the competing expectations might be considered ahead of any further potential enforcement. I again mention the EPA's 'Recommended Separation Distances for Industrial Residual Air Emissions (EPA Publication 1518, March 2013)' which is referenced in the SPPF in the Greater Dandenong Planning Scheme. As I have said, it provides a useful commentary on:
   • the interrelationship between the EPA regulatory framework and the planning framework.
   • the importance of separation distances.
   • the occasional or unintended emissions that must be anticipated and allowed for - including, for example, equipment failure, accidents and abnormal weather conditions.
   • the emerging 'agent of change' principle.
   • the siting of industry in the interface zone that does not itself generate off-site amenity impacts, nor warrant protection from them.
9. In the present case, these factors would all suggest that the users of land adjacent to the Argus land must be taken to have at least some objective expectation of occasional off-site odour impacts on their industrial-level amenity. They cannot reasonably expect that there will be no residual air emissions at all from the Argus land. They cannot reasonably expect the same level of amenity as if they were located only amongst other light industry, and they certainly cannot reasonably expect the same level of amenity enjoyed in a residential area. Their level of amenity will therefore be qualitatively quite different to other areas.
10. At the time the composting facility was first authorised in 1995, and again when the 2010 permit was granted, the Council considered that the separation distances were important and appropriate, and that these buffers ensured that there would be no unreasonable off-site amenity impacts. At the time the 2010 permit was granted, the land in the Industrial 3 Zone to the north was still vacant, albeit that some future development was by then likely.
11. In my opinion, Condition 23.3 should necessarily be construed and enforced having regard to all of these factors.
12. It remains nonetheless possible that more regular or particularly offensive odour emissions from the Argus land, or odours having an impact on human health (as in the Metroll analogy), could still amount to a breach of the condition. In the case of offensive odours injurious to human health, there would likely also be a breach of the EPA licence or other aspects of the EPA regulatory framework. However, in the absence of a specific enforcement action, VCAT cannot (and should not) attempt to define the line that might need to be crossed (i.e. the particular extent or regularity of odour emissions) to justify a successful enforcement action. That will be a matter of fact and degree, and evidence, in any such action.

The application for the Council to refrain from enforcement

1. The third matter raised by Argus in its application is to seek an order that the Council refrain from enforcing condition 23.3 of the 2010 permit in relation to the use of the land.
2. The Council initially asserted that Argus was seeking a declaration to restrain the Council from enforcing the condition and argued that it was 'clearly beyond power' and 'manifestly incorrect and misconceived'.
3. However, although framed as an application for a declaration, this third contention seems to more generally come within VCAT's broader power under s 149A(2)(b) of the Planning and Environment Act 1987, to direct a specified body (which includes a Council) 'to take, or refrain from taking, action specified by the tribunal'. I have treated Argus' contention in this way.
4. The Council also asserted that it was not appropriate to make a declaration regarding the ability of the Council to issue the Planning Infringement Notice (PIN), relying on the decision in Sagolj v Baw Baw Shire Council[35]. There, a landowner had sought to impugn a PIN by action at VCAT under s 149B of the Planning and Environment Act 1987 in an endeavour to avoid an ongoing matter before the Magistrates' Court. VCAT noted that Parliament had given the Magistrates' Court the task of determining whether prosecutions under the _Planning and Environment Act 1_987 are made out, and summarily dismissed the proceeding.
5. The Council also relied upon the principle that the prosecutorial discretion of a prosecuting authority (here, the Council), is not amenable to judicial review[36].
6. Here, the matter is somewhat different. Unlike Sagolj, Argus has paid the PIN penalty and that offence is expiated, and there is no on-going prosecution or enforcement at present. Argus is not seeking to restrain or review any existing prosecution or enforcement. At face value, Argus is simply seeking to have Condition 23.3 interpreted by VCAT to avoid future debate and uncertainty, in circumstances where there is a bona fide dispute between the parties as to how the 2010 permit should be characterised and interpreted.
7. Despite this, I agree with the Council more generally that it is inappropriate to exercise power under s 149A to direct the Council to refrain from enforcing the condition into the future - particularly in circumstances where I have found that the condition is valid, and in the absence of evidence about any particular breach of the condition or any evidence in relation to the nature or extent or regularity of any odour emissions from the Argus land. As I have said, that will be a matter of fact and degree, and evidence, in any future enforcement proceeding at VCAT, or potentially in a future prosecution before a Magistrates' Court. The background and findings I have outlined in these reasons may prove useful in any such enforcement or prosecution, but I certainly do not purport to fetter any future exercise of discretion by VCAT or a Court.

1. It follows from all of the above that I am not satisfied that the applicant has made out its substantive case for invalidity in relation to Condition 23.3, nor in its attempt to formally restrain the Council from further enforcement.
2. However, the applicant has made out at least part of its case in relation to the way in which the condition should properly be characterised and interpreted. The complex history of this matter does suggest that there may be difficulties for the Council in seeking to enforce Condition 23.3 in the absence of a clear breach over and beyond what might comprise reasonable residual air emissions from the Argus land, having regard to the pre-existing rights of Argus in the development and use of the land, having regard to a proper construction of Condition 23.3, and having regard to the limits that must objectively be placed on the amenity expectations of adjoining land users in the interface between the Industrial 2 Zone and the Industrial 3 Zone.
3. I have therefore made alternative orders to those proposed by the applicant. As requested by the parties, I have also reserved costs.

[1] adopting the language in Ainsworth v Criminal justice Commission [1992] HCA 10 at [38] in relation to the boundaries of declaratory relief, albeit here in a different context.

[2] cf Illeowl Pty Ltd v Environment Protection Authority (Red Dot) [2015] VCAT 1105.

[3] Phillips v Greater Shepparton CC [2005] VCAT 653; Wellington & Ors v Surf Coast SC (Red Dot) [2011] VCAT 2317 at [24]

[4] I will later refer to the decision in Metroll Victoria Pty Ltd v Wyndham CC [2007] VCAT 748 that deals with a general amenity condition at the interface of the Industrial 2 Zone and the Industrial 3 Zone, albeit in different circumstances to those in this case.

[5] The parties were given an opportunity to provide further written submissions on this issue. See interim order dated 27 August 2015, and paragraph 16 of the reasons accompanying that order.

[6] Guidelines issued by the EPA 'Designing, constructing and operating composting facilities (EPA publication 1588, March 2015)' provide examples showing separation distances varying between 300 metres and more than 2000 metres.

[9] Indeed, planning permit conditions relating specifically to matters the subject of EPA requirements and supervision (such as compliance with a SEPP) have in the past been held to be unnecessary. See, for example, Delany v Huntly SC (1987) 33 APA 98. However, this does not mean that such a condition is invalid.

[10] APN Outdoor (Trading) Pty Ltd v Melbourne CC [2012] VSC 8

[11] BDL Cable & Electrical Co. Pty Ltd v Brighton CC [1990] 72 LGRA 227 (Full Court of Supreme Court)

[12] e.g. in paragraphs 31 -37 of the Council's written submissions.

[13] Muir v Prahran CC (1986) 61 LGRA 252, Supreme Court per Ormiston J.

[14] [2004] VSC 348

[15] [1975] VicRp 15; [1975] VR 156 at 161-163

[16] [1992] VicRp 69; (1992) 8 AATR 172

[17] [1970] HCA 42; (1971) 123 CLR 490

[18] Stemming from the oft-quoted decision in Rosemeier v Geelong CC (No 1) (1997) 20 AATR at 102-111, although a careful reading of Rosemeier reveals a qualification to the applicability of the Pyx Granite principle.

[19] (1958) 1 QB 554

[20] [1977] VicRp 5; [1977] VR 51 per (Oliver) Gillard J

[22] National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VicRp 60; [1976] VR 592 (Full Court)

[24] [2007] VSC 114 per (Bill) Gillard J

[25] Argus written submissions, at paragraphs 3.4 to 3.10

[27] See comments on the decision in 271 William Street in Stogdale at [39]

[28] For the avoidance of doubt, the term 'reasonableness' is used here in the general sense, rather than in the sense of 'Wednesbury unreasonableness'.

[30] Council supplementary submission at paragraph 4.1

[31] For example, see clause 20 of the VPP-based planning schemes in relation to the LPPF.

[32] Some parts of this material existed in earlier iterations of the SPPF, with a general updating through Amendment VC 71 on that date.

[33] As I have noted, this policy has been updated, as the Recommended Separation Distances for Industrial Residual Air Emissions (EPA Publication 1518, March 2013) although the planning scheme still refers to the earlier 1990 version.

[34] [2007] VCAT 748 per Gibson DP

[35] [2003] VCAT 1685 per Morris J

[36] see for example DPP V Patrick Stevedores Holdings Pty Ltd; Victorian WorkCover Authority v Patrick Stevedores Holdings Pty Ltd [2012] VSCA 300