[2004] VCAT 1571

1 The request by the respondents AGJ Cartage Contractors Pty Ltd and A, G & J Benedek, to revoke Order 2(a) made by the Tribunal on 6 July 2004 is refused.

2 The request by the respondent Lincoln Fuller Pty Ltd to be removed as a party from application P2721/2003 is refused.

3 The mediation listed for 24 August 2004 is adjourned to Tuesday 21 September 2004 at 10.00am for 1 day.

Ms Juliet Forsyth of Counsel, with Mr Brendan Reilly, instructed by Best Hooper

For AGJ Cartage Contractors Pty Ltd & A G J Benedek

Mr Paul Connor of Counsel, instructed by Taylor Splatt and Partners

1 Application P2721/2003 is an application for an enforcement order pursuant to section 114 of the Planning and Environment Act 1987. It concerns the alleged use of the subject land at Lot 2 Grange Road, Dingley as a refuse disposal facility without a planning permit. The application seeks cessation of the alleged use, removal of waste deposited, rehabilitation and costs.

2 Application P1666/2004 seeks certain declarations under section 149B of the Planning and Environment Act 1987 relating to the same matters.

3 The applicant, Barraton Pty Ltd, owns adjoining land, which is apparently also used for waste disposal.

4 Vic Roads is the owner of the subject land. The Benedeks are the lessees and/or occupiers of the land or part thereof, and were or are directors of the respondent, AGJ Cartage Contractors Pty Ltd. Lincoln Fuller Pty Ltd is the occupier of part of the subject land.

5 A directions hearing was held on 2 July 2004 in these matters and orders were made by the Tribunal on 6 July 2004. The orders contained a number of directions about the future conduct of these matters, which had been proposed by the applicant at the directions hearing. The respondents were represented at the directions hearing on 2 July 2004 and did not object to the making of the orders.

2(a) The occupier/s and/or owner/s of the subject land shall permit the applicant and/or its agents and/or consultants to enter the subject land and undertake sampling and testing for the purposes of this proceeding on not less than 48 hours written notice to such owner/s and/or occupier/s.

(b) The "Subject Land" is Lots 1 and 2 PS 409861R, Grange Road, Dingley and more particularly described in Certificates of Title Volume 10345 Folio 859 and Volume 10345 Folio 860 respectively and also described as Lot 2 LP 29928 in parent title Volume 08117 Folio 242 and Volume 08354 Folio 222.

7 Order 6 also referred the applications to mediation on 24 August 2004. Order 5 listed the final hearing of the matters on or after 9 November 2004 for a period of 10 days.

8 The purpose of the directions hearing on 6 August 2004 was to consider a request by the respondents, AGJ Cartage Contractors Pty Ltd and the Benedeks to adjourn the mediation and to set aside Order 2(a) granting the applicant and/or its agents permission to enter the subject land and undertake sampling and testing.

9 By affidavits of Tania Louise Cincotta, solicitor, Tasos Katopodis, principal environmental consultant, and Richard De La Rue, company director, tendered at the hearing, it was established, and was not denied by the respondents, that the applicant and its agents had sought access to the subject land in accordance with Order 2 of the Tribunal for the purpose of undertaking sampling and testing, and had been denied access by the respondents, AGJ Cartage Contractors Pty Ltd and the Benedeks.

10 The means proposed by the applicant to undertake sampling and testing is to use a 20 tonne excavator to excavate up to 12 test pits in locations scattered across the site having potential dimensions up to 4 - 5m in diameter and 4 - 5m deep. The total investigation works, including refilling, are likely to take 7 - 8 hours. The applicant has given an undertaking to rehabilitate the site to its present condition following the sampling and testing work.

11 The method of investigation proposed was supported by a letter from the applicant's consultants GHD Pty Ltd included in the affidavit of Tasos Katopodis. The substance of this letter is as follows:

Further to the proposed investigation of Lot 2 Grange Road, Dingley Village, GHD understands that there is some uncertainty regarding the most appropriate investigation methods proposed.

GHD consider that the construction of test pits (using a 20 tonne excavator) is the most appropriate method of identifying the types of material, which have been used to fill the site since the previous landfill operations. Test pits will maximise the certainty regarding qualifying the material on site, as this method will enable large volumes of material to be exhumed and evaluated, whilst providing a good visual profile of the material in question to enable further evaluation of the material on site.

Undertaking a similar type of investigation with a drilling rig would not be practical as the nature of the material being investigated is very difficult to drill. Core samples would be almost impossible to obtain as the material on site is not a natural material and therefore is not likely to have been compacted well. In addition if solid waste is encountered this is likely to present a range of problems depending on the drilling method employed. Furthermore multiple bores would be required to be constructed to achieve an equivalent level of investigation provided by each test pit and would be time consuming to construct (several days on site) and very expensive.

The size of the test pit is likely to be determined by the nature of the material encountered. In the event that clean fill is observed the excavations may be minimised, such that the dimensions could be in the order of 1m by 4m in area and approximately 4 to 5m deep. However if waste materials are encountered, the size of the excavation is likely to be significantly greater as the structure of the material is not likely to be excavated easily without developing a significantly large hole. In this case the excavation is likely to be 4 to 5 m in diameter and 4 to 5m deep.

GHD recommend excavating up to 12 test pits in locations scattered across the site (see the attached site plan). The siting of the pits is based on information provided in historical aerial photos of the site and the total investigation works are likely to take 7 to 8 hours. GHD have also allowed for the placement of the excavated material back into the test pits during this period. To minimise the disturbance on site care should be taken to separate clean fill material from any solid waste encountered, as it is understood that the site was filled without significant compaction, all of the excavated material should easily be returned back into the test pits.

12 A site plan and sections and a plan showing test pit locations superimposed on an aerial photograph were also exhibited to the affidavit of Tasos Katopodis.

13 The respondents argue that the Tribunal had no power to make an order directing that the applicant may enter the subject land and undertake sampling and testing for the purposes of this proceeding. They seek an order revoking this order.

14 In the event that I find the Tribunal did have power to make order 2(a), the respondents argue that the proposed method of sampling and testing is unreasonable and I should vary the order to confine it to more reasonable methods.

15 The applicant argues that if the Tribunal did not have power to make the order in the first place, then it has no power to revoke an invalid order. That must be done by way of appeal. In any event, the applicant argues that the Tribunal did have power to make the order pursuant to sections 80(1) and 129(1) of the Victorian Civil and Administrative Tribunal Act. Further, the order was and is necessary for the expeditious or fair hearing and determination of the proceedings herein.

16 The respondents' arguments relating to the Tribunal's lack of jurisdiction centre upon the lack of any authority in the Planning and Environment Act 1987 for persons other than (in most instances) the responsible authority to enter any land to carry out and enforce the Act or enforcement order under section 133 or to take any of the actions specified in section 135 of the Act, which includes taking and removing samples.

17 Whilst I agree that the applicant would have no right to enter the land under the Planning and Environment Act provisions, this does not mean that they may not enter land pursuant to an order of the Tribunal. The question is whether the Tribunal has the power to make an order authorising someone to go on to land to undertake sampling and testing for the purpose of a proceeding.

18 The Tribunal has wide powers to control and manage the conduct of proceedings. This includes the power to give directions under section 80 of the Victorian Civil and Administrative Tribunal Act 1998; to obtain information from third parties under section 81; and a power of entry and inspection under section 129, including power to order an occupier of land or buildings relevant to the proceeding to give a person who is to give evidence in the proceeding reasonable access to the land or buildings (section 129(1)(c)). In addition, under section 98(1)(c) the Tribunal may inform itself on any matter as it sees fit.

19 Section 80(1) provides as follows:

(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding

20 This is an extremely wide power. It is further amplified by section 80(3), which provides:

(3) The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything to the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.

21 This provision specifically overrides the law which might otherwise be relied upon by a party who opposes production of a document or information. Section 105 further reinforces the Tribunal's power to deal with the substantial merits of the case (as required by section 97 of the Act) by providing in section 105(1) that the rule against self incrimination does not apply and that a person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.

22 The general tenor of these provisions and their comprehensive nature lead to a conclusion that the legislature intended to give the Tribunal whatever powers it requires to fulfil its function and meet its obligation in section 97 of the Act to act fairly and according to the substantial merits of the case in all proceedings. There is nothing in these provisions in the Act as a whole which lead to a conclusion that section 80 of the Act should be read down in any way.

23 I do not consider that it is relevant that the Planning and Environment Act 1987 only gives authorised officers of the Department and the responsible authority power to enter land. Indeed, it would be extremely strange for the Act to give any other person such a power. However, once proceedings are instituted before the Tribunal it is appropriate to look to the Victorian Civil and Administrative Tribunal Act 1998 to determine what powers the Tribunal may have to authorise entry onto land which is the subject of a proceeding.

24 It is integral to the function of the Tribunal to ensure that it acts upon the best available evidence. As Deputy President Macnamara said in Galea v TAC [2002] VCAT 446 at para 18:

"The Tribunal has an obligation to reach the correct or preferable decision."

25 The obligation to reach the correct or preferable decision arises from the Tribunal's duty under section 97 to act fairly and according to the substantial merits of the case in all proceedings. In order to fulfil this duty section 98(1)(c) entitles the Tribunal to inform itself on any matter as it sees fit.

26 A key consideration in the enforcement order application, concerns the nature and extent of fill on the subject land. It will therefore be important for the best evidence abut this issue to be placed before the Tribunal. Evidence about the nature and extent of the fill can be obtained by testing or sampling, then the testing and sampling ought to be carried out in the most effective way possible and the Tribunal should use the powers it has to make appropriate orders for this purpose. These powers are found in various provisions of the Victorian Civil and Administrative Tribunal Act 1998: namely the power to give directions where it is necessary for the expeditious or fair hearing and determination of a proceeding pursuant to section 80(1) of the Act; and the power to make an order to enable a person who is to give evidence in the proceeding to gain reasonable access to land pursuant to section 129(1)(c).

27 I was referred to a variety of cases where the Tribunal's power under these sections has been used to make different sorts of orders of quite far reaching nature. I consider these cases tend to confirm the wide-ranging nature of the power under section 80(1) to give directions. I do not consider that the nature of Order 2(a) falls outside this power.

28 It is less common for an enforcement order application to be made by a person other than the responsible authority but it is an action clearly provided for under the Planning and Environment Act 1987. The applicant having made such an application, I consider the Tribunal must treat it with the same seriousness with respect to reaching the correct or preferable decision as if the application was made by the responsible authority. A breach of the planning scheme, the Act or a planning permit is no less a breach because a person other than the responsible authority seeks to enforce it. If the respondents seek to question the motives of the applicant in making these applications, this is a matter to be considered in the context of the final hearing, if relevant. I am not persuaded that the vague allegations made on this point are relevant to the exercise of my power to make the directions that I have.

29 It is clear from the evidence that the respondents did not object to sampling and testing being undertaken on the land when they were under the impression that this would consist of drilling. It was acknowledged by Mr Connor that it was only the prospect of a 20 tonne excavator digging up to 12 pits 5 metres in diameter and 5 metres deep that caused the respondents to withdraw their willingness to consent.

30 The question of whether one form of taking samples and testing is more reasonable than another, and whether this should influence what the Tribunal may order, will depend upon the circumstances and what is at issue in the case. In the present case, the issue concerns the nature and extent of the fill in a very large landfill that has operated for many years. There is expert evidence from GHD to suggest that core drilling is not effective to produce reliable evidence about the nature of the fill. Reliable evidence can only be established by excavation. The nature of the landfill is such that there are large piles of waste and heavy machinery operating on it. The site is not pristine land and there is no evidence that the activities required to undertake sampling and testing will damage the land, cause a detriment to anyone's amenity or inconvenience the respondents in the use of their land. The land will be reinstated. I accept the evidence that the means of sampling and testing proposed by GHD is the most effective in the circumstances to produce reliable evidence about the nature and extent of the fill on the land. The nature and extent of the fill is a core issue in the proceedings. I therefore find that it is reasonable to use the method of sampling and testing proposed by the applicant which may involve the use of a 20 tonne excavator and the excavation of up to 12 pits 45 metres in diameter and 5 metres deep.

31 My conclusions are therefore that the Tribunal had the power to make Order 2(a) on 6 July 2004 entitling the applicant to access the subject land to undertake sampling and testing for the purposes of this proceeding pursuant to sections 80(1) and 129(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998, both of which also support the Tribunal's general power set out in section 98(1)(c) to inform itself on any matter as it sees fit.

32 Based on this finding, it is unnecessary for me to deal with the other arguments put on behalf of the respondents relating to the Tribunal's power to revoke an invalid order.

33 A further request made at the directions hearing on 6 August 2002 was to adjourn the mediation listed for 24 August 2004 due to the non-availability of the legal representatives who have had carriage of the matter on behalf of the respondents.

34 The grounds relied upon and the issues at stake in their application for an enforcement order are complex. The purpose of the mediation is to seek to resolve issues if possible and I consider this is most likely to occur if the representatives of the parties participating in the proceeding in the mediation have the confidence of their clients. Due to the complexity of the case I consider it is appropriate to adjourn the mediation to a date when the respondents representatives are available, which I am told would be on or after 20 September 2004.

35 One of the orders made by the Tribunal on 6 July 2004 was to join Lincoln Fuller Pty Ltd as a party to the enforcement order application P2721/2003. Lincoln Fuller Pty Ltd is the occupier of part of the subject land. The reasons given by the Tribunal for making this order were as follows:

Both the responsible authority, Kingston City Council, and Lincoln Fuller Pty Ltd voiced concerns about being made parties and being caught up in what is likely to be an expensive and protracted legal wrangle. However, I consider that the role of the Council as responsible authority and the status of Lincoln Fuller Pty Ltd as an occupier of part of the subject land means that both should be parties to the proceedings. Whether they choose to participate in the proceedings is a matter for their respective judgements. As parties, they have an opportunity to be heard, and I consider that the Tribunal will benefit from hearing from the Council, at least about the planning background of this matter, at the time of the final hearing.

36 At the directions hearing on 6 August 2004 I considered a request by Lincoln Fuller Pty Ltd to be removed as a party. This was contained in a letter from its solicitors, Mason Sier Turnbull in a facsimile to the Senior Registrar dated 4 August 2004, which states:

We refer to your Notice of Hearing of 27 July 2004 which has been passed on to us by our client.

As has been mentioned in previous correspondence, our client considers that it should not be a party to these proceedings as the dispute is really between Barraton Pty Ltd and AGJ Cartage Contractors Pty Ltd. We would request that you remove our client as a party to the action.

In regard to the application for adjournment, our client does not have a view either way. Could you also note our client and us will not be appearing at the hearing on 6 August 2004.

37 I do not consider that this request alters the reasons for initially including Lincoln Fuller Pty Ltd as a party. Whether or not Lincoln Fuller Pty Ltd choses to participate in the proceedings is a matter for its judgement, but as occupier of part of the land which is subject to the proceedings and may be affected by orders made by the Tribunal, it is appropriate that they remain a party.