Ms Juliette Forsyth, barrister, appeared on the instructions of Moray & Agnew solicitors for Australian Native Landscapes Pty Ltd. She presented written and oral submissions and called Mr Patrick Noel Soars, Managing Director of the applicant company, to give evidence.

Mr Ragu Appudurai, solicitor, of the firm of Russell Kennedy, solicitors, appeared for the responsible authority. He made oral submissions and called Mr Anthony Edward King and Ms Dita Bouma, as witnesses.

Ms Kate Morrow, solicitor, of the firm of Minter Ellison, solicitors, appeared for the Metropolitan Waste Management Group (a body incorporated by statute). She made brief oral submissions.

Mr Anthony Edward King and Ms Dita Bouma, in addition to being called as witnesses by Mr Apadurai, appeared as residents and made brief oral submissions.

Various photographs, diagrams and other documents were tendered. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 121 of the Planning and Environment Act 1987 for amendment of an enforcement order.

Green Wedge Zone (Schedule 2) and subject to an Environment Significance Overlay under the Yarra Ranges Planning Scheme

Lot 1 on Plan of Subdivision 613737Q being the Land in Certificate of Title Volume 8965 Folio 046.

1. There are a number of proceedings involving Australian Native Landscapes Pty Ltd (the company) in relation to which there have been substantial hearings during 2008 and 2009. Various interim and other determinations, as well as directions and orders have been made along the way.
2. On 25 June 2009, amongst other orders, we made an enforcement order in tribunal proceeding P2788/2006. That proceeding was an application by the responsible authority for an enforcement order. We found that there had been a contravention of Condition 14 of planning permit YR-2004/164 issued on 19 July 2004. We made our order "subject to any further order of this tribunal or the consent of the responsible authority". At the time of making our order we did contemplate that further amendments, orders or variations may eventually be relevant or appropriate. We made reference to s 121 of the Planning and Environment Act 1987 (PE Act) in this connection. That section empowers the tribunal to amend or cancel an enforcement order. It is pursuant to that provision that this current proceeding is brought.
3. It should be understood that we were not thereby necessarily inviting an application to cancel or amend the enforcement order that we made on 25 June 2009. It is nevertheless true that we did contemplate that such an order might become appropriate and we intended to draw the attention of the various parties to that possibility.
4. The enforcement order we made was that the company:

Must cease receiving green waste for composting on the land by four months from the date of this document and must process and removal from the land all green waste, composting material and composted material within 3 months thereafter.

1. That order was requiring that no further green waste be brought onto the land for composting after 25 October 2009 with the further three months for removal of green waste, composting material and composted material expiring on 25 January 2010.
2. The amendment sought relates to two aspects of the second time limit imposed in our order. The first is to extend the second time limit from 25 January 2010 to 8 February 2010. The second relates only to fully composted and processed product. The company seeks an extension of time in relation to that material so that it can be kept on site and sold from the site during the period 8 February 2010 to 25 June 2010.
3. The parties, including the company, had no means of knowing with any confidence whether we would make an enforcement order, or what the terms of such enforcement order would be, until they received our determination of 25 June 2009. They had no opportunity of making submissions, beyond perhaps general submissions, as to the timing that we should impose or as to its appropriateness. We were conscious of this, but also conscious of the possibility of utilising s 121 PE Act, or possibly consent of the responsible authority, if it was prepared to give that consent, to some variation as to requirements.
4. Some submissions were put to us, in the course of the hearing before us on 30 November 2009, to the effect that the company should have anticipated what we were going to order and that the company should, in advance, have made submissions and called evidence in support of such submissions as to timing. The notion seemed to be that we cannot or should not vary time limits in accordance with evidence and submissions that might subsequently be brought, as they have now been brought, pursuant to s 121. We consider submissions of that sort to have been unrealistic and without basis.
5. Section 121 PE Act, amongst other things, has a purpose of enabling justice to be done. It also enables adjustment to enforcement orders to accord with changed circumstances or, for that matter, circumstances that had not been appreciated or fully appreciated at the time the enforcement order was made. We reject the notion that a narrow or rigid approach should be taken to the use interpretation or application of s 121.
6. The section itself does not describe circumstances or even indicate criteria as to when it should be applied. Its terms leave such questions quite open.
7. We were referred to the decision of one of us[1] in King v Shire of Gisborne[2]. A passage from page 4 of the reasons in that case was quoted by deputy president Gibson in Kraan v Cardinia SC[3]. The Kraan reasons quoted from the King case with approval including in relation to where it is pointed out that s 121 does not given an opportunity to retry a matter that has been already heard and determined. We consider that proposition to be correct.
8. Furthermore, it does not give an opportunity for a rehearing to enable a party to amend a case where the party has subsequently regretted having omitted or overlooked some evidence or argument that could or should have been advanced at the original hearing. Again, we agree with that.
9. While we agree with it, we do not regard this current case as an example of an attempt to reopen, reargue or rehear the previous decision.
10. In this case, the company is seeking amendments to extend time limitations imposed in our original order. The current application does not seek to disturb the principle findings or substantive orders. There is no application to vary the four month to 25 October limitation after which no further green waste is to be brought onto the land. The evidence given to us on 30 November 2009 indicates that this order has already been complied with.
11. Such green waste, which could be brought onto the land until 25 October 2009, was contemplated by our order to be allowed to be composted and processed during the ensuing three months up to 25 January 2010.
12. We can recount from previous evidence the most hazardous time, in terms of offsite odour nuisances, are the initial stages after green waste is delivered. This includes sorting, shredding, formation into stage 1 composting windrows and the stage 1 of such composting in such windrows. These are the processes when anaerobic composting or decomposition is most likely with its associated dangers of the escape of offensive odours.
13. On 30 November 2009, Mr Anthony King and Ms Bouma gave evidence that, on several various days during the proceeding fortnight, fugitive odours had been experienced. Both witnesses agreed that the incidence of such odours have reduced in number over the previous three months, although this is not necessarily been associated with a reduction in intensity when odours have in fact occurred.
14. We note that these odours complained of having been experienced in the fortnight prior to the hearing, fall within the time for stage 1 composting for the last of the green waste that our order allowed to be brought onto the land. It is not altogether surprising, in these circumstances (however regrettable it might be) that some such odour episodes should occur during that period[4]. Such occurrences do not indicate any new failure on the part of the company or its systems.
15. However, the last of the green waste allowed to be brought to the site, in accordance with our order, should now have passed or be passing into the maturation or stage 2 windrow part of the composting process. On the basis of the evidence, including expert evidence, available to date there is reason to hope that odours will be significantly less of a problem in the next two months. By 25 January 2010, the second stage or maturation composting of the last of the green waste should be complete.
16. From then there is only a question of the trommeling (in effect sifting and grading) of the materials and its stock piling for sale. Some of the material is sold or disposed of as it comes from the trommel machine. Other sorted material is mixed with additives of various sorts, such as sand, for particular applications or particular custom or needs.
17. There are two aspects of the time extensions now sought by the company. One is an extension of two weeks from 25 January 2010 to 8 February 2010. The extensions sought for this limited period is in relation to stage 2 composting including turning. Part of the reason is to avoid turning during the Christmas to New Year holiday period when people are likely to be at home and to suffer more if odour events occurred during that period. In relation to the previous Christmas Mr King raised a question as to whether there could be relief during that period. We subsequently made a critical remark in relation to the company as to whether it has put its mind to means of alleviating stress on residents, even if only a temporary basis. We find no reason to suspect that this suggestion of the two week extension with its association to the Christmas holiday period is other than bona fide and considerate. Mr King said that he had been "instructed" that this suggestion might be a threat that if the extension was not granted residents might be subjected to avoidable odour nuisances. We noticed that he did not own that suggestion for himself but referred to it as something in relation to which he had been "instructed". We are not aware of any proper basis for the suggestion.
18. Apart from that, no reasons of any substance were advanced as to why this 14 days extension should not be granted. There was really only token or nominal opposition to it, and certainly no reasoned opposition.
19. In relation to it, and to the other extension sought, it was suggested on behalf of the responsible authority that it had not been proved, or that no evidence had been advanced by the company to support the notion that no harm would be done by the extensions sought. We have previously canvassed the evidence called in relation to the earlier cases at considerable length, and given our findings with our reasons also at some length. These previous cases include the enforcement application pursuant to which the original enforcement order, now sought to be amended, was made. In the circumstances, we do not consider it necessary, or appropriate, to repeat all those things again here in these reasons. We refer to what we have previously said. However, on the basis of the evidence, including expert evidence, and our findings in relation to it, we reject the notion that there is no evidence to the effect that further odour nuisances are unlikely if the extensions now sought are granted. On the contrary, there is considerable evidence which we have accepted. We will refer to this again in relation to the second extension sought, but it is also true in relation to this first extension.
20. There is no reason why the two week extensions should not be granted.
21. The second extension sought is in relation to the removal of processed product from the site. The company seeks an extension to 25 June 2010 so that it can keep material that has been fully composted on the site for sale after 25 January 2010, and up to 25 June 2010. It wishes to retain this material and dispose of it from the site with a view to maintaining faith with its existing customer base. Whilst the concession sought may well be of financial benefit to the company, it is not only the company's interests that are relevant. Apart from the customers, there is the Metropolitan Waste Management Group and the employees of the company who have an interest in the matter. In a wider sense, in view of the high desirability of being able to establish and demonstrate acceptable green waste composting, interests extend to the State of Victoria and probably the Environment Protection Authority. The responsible authority may not now care whether this project survives or fails, but there is a public interest in it succeeding if that can be achieved. We have previously discussed the reasoning in relation to this.
22. The complaints made by residents in relation to these activities are that they generate offensive odours; not that they are undesirable activities in themselves. On the contrary, they are highly desirable from an environmental and economic point of view quite apart from the private finances of the company involved.
23. Mr Apadurai, on behalf of the responsible authority, urged on us the appropriateness of paying attention and regard to what Mr Anthony King has to say in his evidence and submissions. What he said in evidence would have been, we assume, have been said by him by way of submissions if he had not been called by Mr Apadurai. Mr King has participated in this case and its predecessors over a considerable period. We agree with Mr Apadurai that Mr King has shown himself to be a responsible and sensible person who has maintained those attributes whilst suffering significant odour nuisances. We do pay attention to, give weight to and respect what Mr King has had to say in the past and on 30 November 2009.
24. In fact, he really touched on the key point in this present case in discussion with the presiding member. His opposition to amendment to the existing orders was because of fear of continued odour nuisances. If it were not for odours, or the fear of them, he would see no reason why the amendments sought should not be granted. He would not be concerned about the company's activities on the site such as, for example, storing and selling of processed product if it occasioned no offsite odours. His concern really is as to whether he can have confidence that such odours will not persist during the first half of next year if the amendments sought are granted.
25. We consider that there is a significant basis in evidence, including expert evidence, for concluding that the mere storing, mixing and sale of the product of completed composting will not cause offsite odour nuisances[5]. That is not to say that such material does not have some odour at close range, but that circumstance does not indicate offensive odours beyond the site.
26. We have previously discussed the concept of nuisance and the relevance of constancy, regularity, frequency, infrequency, and rarity of occurrence in relation to nuisance conditions. Something that occurred once a day or once a week or once a month might not be a nuisance if it occurred only once a year. The evidence, and necessary implications from the assumptions of expert witnesses, indicates that the material sort to be retained on site after 8 February 2010 would be inoffensive. The state of the evidence is that there is no suggestion to the contrary.
27. Whilst we consider this to be the situation, we also understand that actual experience can give an assurance and confirmation of what opinion and theory might suggest. We have previously indicated that we sought to have things demonstrated in practice to show that they would not actually occasion odour nuisances. It was to this end that we sought to give the company an opportunity to carry out further steps in relation to composting including a green waste or shredded materials storage facility subject to negative air pressure with venting to biofilter and the capture, and biofilter treatment of emissions from composting windrows.
28. Rather than simply extending the period for storage and sale to 25 June 2010, we see merit in allowing a shorter trial period during February to March 2010 with a view to further extension to 25 June 2010 if the trial demonstrates satisfactory circumstances. A judgement could be made by us, at the end of the trial, as to whether circumstances have been shown to be in fact satisfactory. This might not mean that there is never any escape of odour. A whiff encountered on passing by car does not amount to a nuisance, just as a mild or sufficiently infrequent condition may not.
29. There are several advantages in proceeding in that way. The trial should confirm, one way or the other, as to whether the storage and movement of finished product gives rise to offsite odour nuisances. If it does, the residents can be protected from exposure during the approximate three months to 25 June 2010. If not, then the company can be freed from an unnecessary constraint.
30. In determining the success or otherwise of a trial the evidence of the presence or otherwise of odour nuisance conditions would be relevant. Some of this might come from residents, but other evidence from other observers might also be helpful, bearing in mind that frequent sufferers do become sensitised. In previous hearings leading up to the making of the enforcement order we had the benefit of evidence given by Mr Rhett English, an officer of the responsible authority, who appeared to us to be thorough, careful and responsible in his observing of conditions. We understand that he has now moved on from his position with the responsible authority.
31. We have arranged for a further hearing on Tuesday 30 March 2010 to commence at 10 am. We propose to make orders amending the existing enforcement order so as to allow the retention of process material on site until that date. We propose to review the situation at that stage, and on the basis of experience between 8 February 2010 and 30 March 2010 before deciding whether a further amendment should allow continuation until 25 June 2010.

[2] Unreported AAT 1992/08196 of 10 April 1992

[3] [2006] VCAT 1629

[4] We note that some of these episodes also correspond to incidents on or after extreme rainfall events. This may point to a temporary overloading of the leachate pond and its aeration system.

[5] Yarra Ranges SC v Australian Native Landscapes [2008] VCAT 2342 at paragraphs [158] and [201].