Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099

1. Plans circulated to parties under cover of letter dated 3 November 2010 are substituted for the application plans. These comprise sheets - Planning Map, End-Use Master Plan, Plan of Premises, Proposed Pre-Settlement Top of Solid Inert Waste Contour Plan, Plan of Groundwater Bores and Surface Water Sampling Points, Proposed Pre-Settlement Top of Landfill Cap Contours, Cell Contours (Indicative), Indicative Boundary Lines and Consequent Sequence of Waste Filling Cell Construction and Rehabilitation.
2. The description of the land area included in the permit application is amended to read:
   • (a) Use and development of that part of the site within the EPA Works Approval WA46995 area on Barro Group Planning Map Sunshine Landfill, Drawing No: A3-1046, Plan No VQS 10.001, Revision 0, Date October 2010, Figure 1 zoned Special Use Zone 3 for the purpose of solid inert landfill in accordance with the submitted information.
3. The decision of the Responsible Authority is affirmed. In permit application P733/2009 no permit is granted.
4. The hearing date to discuss conditions on 21 June 2011 is vacated.

Mr Jeremy Gobbo QC, and Mr Henry Jackson Barrister instructed by Ponte Earle Lawyers. Expert written and oral evidence called from:

• Mr Andrew Green, Civil/Geotechnical Engineer (landfill design) of Golder Associates Pty Ltd;
• Mr Christophe Delaire, Acoustic Consultant of Marshall Day Acoustics Pty Ltd;
• Mr John Nolan, Environmental Engineer Hydro geologist and Environmental Auditor (EPA) of Nolan Consulting Pty Ltd;
• Mr Allan Wyatt, Landscape Architect of ERM Australia Pty Ltd;
• Mr Peter Ramsay, Chemical Engineer, Environmental Auditor Air Quality Consultant of Peter J Ramsay Associates Pty Ltd;
• Mr Roger Parker, Geotechnical/ Environmental Engineer of Golder Associates Pty Ltd; and
• Mr Jamie Govenlock, Town Planner of Urbis Pty Ltd.

Witness statements were also prepared by Mr Russell Symons, Traffic Engineer of Ratio Consultants Pty Ltd and Mr Ken Norris, Flora and Fauna Consultant of Norris and Schoeffel Environmental Consultants but with the agreement of parties were not required to attend the hearing and be cross-examined.

Mr Christopher Wren, SC and Mr Paul Chiappi Barrister instructed by Russell Kennedy. Expert written and oral evidence called from:

• Mr Robert Amaral, Consulting Geotechnical/Landfill Engineer; and
• Dr Iain Cowan, Senior Associate Air Quality Scientist of URS Australia Pty Ltd.

Mr Afa Lindeman, Barrister instructed by Mr Mark Payton, Solicitor to the EPA Victoria. Expert written and oral evidence called from:

• Mr Colin McIntosh, Program Manager Landfills, Statutory Facilitation Unit EPA Victoria.

Ms Emily Porter, Barrister instructed by Merrylees Legal for Residents Against Sunshine Kealba Quarry Inc. and others. She called expert and lay evidence from:

• Mr David Maltby, Geotechnical Engineer and Waste Management Consultant;
• Dr Jonathan Streeton, Consultant Physician specialising in Respiratory Medicine; and
• Mr Jan Matusik, Ms Kim Huynh, Ms Danuta Klek, Ms Barbara Gamanski, Ms Maria Matusik, Ms Jacquelina Janceva, Mr Yerzy Klek, Ms Olga Vartaci (all local residents).

Use and development of the land for a solid inert waste landfill.

Cl. 37.01-1 & -4 (use of land for landfill and buildings and works in SUZ3).

The site is located on the eastern side of Sunshine Avenue north east of the intersection with Main Road East. It is close to the Western Ring Road to the south and the Maribyrnong River to the east. The land subject to this landfill application has an area of approximately 17 hectares and forms part of a disused basalt quarry with a total area of approximately 40 hectares. The balance of the quarry site is developed for a materials handling and recycling facility and a concrete batching plant. Part of the area to be used for landfill (Cells 1A and 2A) has already been filled in accordance with a previous planning permit issued in 1999. Access to the existing facilities and the proposed landfill is via Main Road East and McIntyre Road.

Residential areas are located to the west on the opposite side of Sunshine Avenue and to the north in Orbital Drive beyond a small valley containing an ephemeral waterway. A small industrial area abuts the northern boundary of the site and the Kealba Hotel and medical facilities are located to the west on the corner of Sunshine Avenue and Main Road East. A service station complex is located on the south east corner of Sunshine Avenue and Main Road East near the entrance to the quarry site.

We undertook two inspections - one accompanied of the quarry and surrounds on 22 March 2011 and another of nearby residences on 29 March 2011).

1. Brimbank City Council has refused a permit to use part of a disused basalt quarry for a solid inert waste landfill and the permit applicant has appealed against that decision. Part of the quarry has been used for the preparatory development of a landfill on the basis of a permit issued in 1999. There is now a dispute about whether that permit has lapsed; hence the application for a new planning permit. Nearby residents support Council's decision and oppose the use of the former quarry land for a landfill.
2. The proposal involves the following:
   • Use and development for a Type 3 landfill (solid inert waste).
   • Access via McIntyre Road is to be shared with the existing concrete batching plant and materials recycling operation. On entering trucks will be weighed and inspected and the material will be either sent to the landfill or existing crushing plant.
   • Waste sent to landfill will be progressively compacted and at the end of each day or when 2 metres of fill has been deposited it will be covered with clean fill to a depth of 150mm.
   • Additional clean fill cover to a depth of 300mm will be spread at the end of each week.
   • The waste is to be progressively deposited in cells - initially working in layers from the existing base of the quarry on top of already prepared bases of Cells 1A and 2A.
   • The existing quarry floor is at around 40 AHD while the natural ground level along Sunshine Avenue is approximately 60 AHD.
   • The intention is to fill to ground level along the northern and parts of the western and eastern boundaries with a sloping face to the existing quarry floor at the south. Within the centre of the landfill the waste will be mounded to create a plateau at 75 AHD or 15 metres above the natural ground level.
   • The total airspace available for the landfill is 3.5 million cubic metres and dependent of filling rates is expected to have a lifespan of between 30 to 80 years. (Mr Gobbo's submission suggests the shorter time frame of 30 years is likely to be achieved rather than the longer 80 years).
   • Hours of operation (as amended by letter dated 27 January 2011)
     • - Monday to Saturday 6 am to 6 pm
     • - Sunday 7 am to 4 pm
   • The end use is proposed to be a golf course and associated building and landscaping but any such activity will require further approval (depending on what planning controls exist at the time).
3. A ten day hearing was conducted over a 3 week period in March-April 2011. Parties made submissions and eleven expert witnesses were called to give oral evidence and answer questions. Two other expert witnesses prepared written statements but the issues they raised were not controversial and they were not required to attend or answer questions. In addition, eight residents appeared and gave lay evidence but were not questioned by other parties. In reaching our decision we have considered all the submissions, evidence and other information and material presented to us during the hearing.
4. We have also been cognisant that the permit application is made pursuant to the Brimbank Planning Scheme and that the Planning Scheme fits within a framework created by the Planning and Environment Act 1987 (P&E Act). Both the P&E Act and the Planning Scheme provide broad statements or objectives about what planning is to achieve and how we are to deal with often conflicting objectives within the Planning Scheme.
5. Section 4 of the Planning and Environment Act 1987 sets out the objectives of planning in Victoria as follows:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community;

(f) to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);

(g) to balance the present and future interests of all Victorians.

1. Clause 10.4 of the Brimbank Planning Scheme requires us to:

endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations.

1. Having regard to these objectives and the desire to achieve an outcome that favours net community benefit and sustainable development for the benefit of present and future generations, we are not persuaded that the proposal should be approved. We now explain why.

1. Having regard to submissions and evidence we consider that the key issues are as follows:
   1. The relevance of the previous planning permit and the current works approval.
   2. The interrelationship between environmental and planning controls/guidelines and whether we can consider 'need'.
   3. Given that the proposed landfill is well within the 200 metre buffer specified in the _Best Practice Environmental Management Guideline (Siting, Design Operation and Rehabilitation of Landfills) (_BEPM), can we be confident that there are no unacceptable risks to residents living in proximity to the proposed landfill.
   4. Can we be confident that potential off-site amenity impacts can be managed within acceptable limits.
2. We now deal with each of these in turn. Towards the end of our reasons we also make some comments on the proposed end use as a golf course.

Relevance of the previous planning permit and the current works approval

1. The Kealba quarry site has been used for a basalt quarry for many decades. The first permit appears to have been issued in 1959, although the quarry may have operated from the late 1940's. The 1959 permit allowed extractive industry and over subsequent decades permits have been issued for further extractive industry, depositing of overburden, a concrete batching plant, stone extraction, and a solid waste material handling and transfer facility. Some of these, such as the concrete batching plant, relate to that part of the quarry not subject to the current permit application.
2. In 1999 a planning permit was issued allowing the rehabilitation and end use of the land upon completion of the current extractive industry operation. It was on the basis of that permit that the EPA issued a Works Approval (WA46995) for a solid inert landfill (the Works Approval has been subsequently amended). It is also on the basis of those approvals that development of part of the landfill (Cells 1A and 2A) has been commenced. Part of the management process included submission of a Construction Quality Assurance Plan which was approved by the EPA in 2006.
3. In early 2009 the Brimbank City Council advised the EPA that there may not be a planning permit for a solid inert waste landfill. In April 2009 the EPA received an environmental audit confirming that the basal liners for Cells 1A and 2A had been constructed in accordance with the approved plans and specifications. The Authority also received an Environment Improvement Plan.
4. In June 2009 Barro Group lodged an application for a licence following completion of the works included in the Works Approval. It was at that point that Brimbank City Council sought the inclusion of a condition on any licence requiring that a planning permit must be obtained for a solid inert waste landfill. There is therefore a difference of opinion about whether a planning permit exists. The dispute is subject to a separate proceeding and is not something for us to determine. The point was made by the permit applicant however, that even if the previous permit was still operative, our approval of a new permit with much more comprehensive permit conditions would be a far better outcome[2].
5. While we do not disagree that a new planning permit with comprehensive conditions would have significant benefits over the limited controls provided in the 1999 permit, we need to be satisfied that the proposal is acceptable having regard to current controls and policies. What has happened in the past provides important context to how we assess the current application. That includes the existence of the two completed landfill basal liners, use and development that has occurred in the locality since 1999 and the changes to the regulatory regime including relevant policies and guidelines since 1999. We have to be satisfied that the proposal to use and develop the site for a solid inert waste landfill is an acceptable planning outcome. We consider that the existence of an additional solid inert waste landfill does not, on balance, provide a net community benefit.
6. We emphasise that we are not reviewing the Works Approval but there is an obvious interrelationship between environmental and planning controls/guidelines that must be addressed as part of this planning permit application.

The interrelationship between environmental and planning controls/guidelines and whether we can consider 'need'

1. Section 84B(2)(e) of the P&E Act provides that the Tribunal, when determining an application for review, in addition to other matters referred to in section 84B(1):

must take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970;

1. The Waste Management Policy is deemed to be a State Environment Protection Policy under s 16A(3) of the Environment Protection Act 1970 (EP Act). It is also listed, along with other relevant documents, in cl. 19.03-5 of the Brimbank Planning Scheme as follows:

• Victoria's Towards Zero Waste Strategy (Department of Sustainability and Environment, 2005).
• Waste Management Policy (Siting, Design and Management of Landfills)(Environmental Protection Authority, 2004).
• Environment Protection (Industrial Waste Resource) Regulations 2009.
• Best Practice Environmental Management Guideline (Siting, Design Operation and Rehabilitation of Landfills) (Environmental Protection Authority, 2001). (BEPM)

• Metropolitan Waste and Resource Strategic Plan (Sustainability Victoria, 2009).
• Creating Cleaner, Safer Places: Working together to remove litter from Victoria's environment (Sustainability Victoria, 2009).

1. We note that the 2001 BEPM referenced above has been replaced by the 2010 version discussed in the various submissions and witness statements.
2. In our opinion there is a clear direction that the Tribunal on review is obliged to take into consideration these documents when assessing a new permit application for a solid inert waste landfill. In one sense the existing Works Approval is arguably irrelevant. It was approved under a different regulatory/policy framework and it is not our task to review it or question how it was formulated and approved.
3. One of the key points in contention between the permit applicant and the residents represented by Ms Porter concerns 'need'. Mr Wren also sought to make submissions about 'need', although Mr Gobbo objected to any such submissions on the basis that 'need' had not formed part of Council's reasons for refusal.
4. Ms Porter submitted that although the question of need has virtually become otiose in review hearings, landfills are within that rare category of cases where lack of need can be a ground of refusal. She suggested that was because of the fundamental policy direction to minimise landfills in Victoria and because community need is the first aspect in the hierarchy for siting landfills. (Section 5.1 of the BEPM has Community needs as the first in a hierarchy of ten aspects to be considered when screening candidate landfill sites).
5. In contrast, it was Mr Gobbo's contention that the issue of a Works Approval in accordance with the relevant Regional Waste Management Plan (RWMP) was sufficient demonstrable need and there was no justification for a responsible authority to review landfill siting subsequent to a Works Approval. In his opinion it was the role of the EPA and the Regional Waste Management Group and not the Council (or the Tribunal on review). The EPA supported that position.
6. In other circumstances we might accept that argument but not in this case. The inclusion of the Kealba site in the RWMP appears quite logical given that a planning permit and Works Approval were in existence when the RWMP was being prepared. Mr McIntosh[3] took a similar view during cross examination. It was his evidence that the RWMP had included the site because it had a Works Approval in place when the Plan was being prepared and that on that basis, the EPA considered there was no need to review the requirement for development of the Kealba site. Mr McIntosh was also not aware of the Metropolitan Region Waste Management Group undertaking any review of the site when they took over responsibility for all Metropolitan landfills. This was confirmed by Mr Maltby[4] who advised that he had been commissioned by the Metropolitan Region Waste Management Group to assist in the preparation of the Metropolitan Regional Waste Management Plan and that to his knowledge none of the sites with Works Approvals were reviewed.
7. Ms Porter also noted references in the RWMP which identified a consistent theme of the lack of need for the development of more landfills:

.... those scheduled landfills that are not currently operating should not come into operation until the closure or imminent closure of existing operating landfills in their relevant subregion has created a demonstrable need for new landfill space. (Part 3 - section 1.2.1)

In contrast to the other three regions, the former western region has shown steady increases in disposal rates. These increases can be attributed to greater landfill availability of air space (landfill capacity) and the numbers of landfills providing greater competition than other regions, with the result that waste has been transported into that region for disposal (Part 3 - section 2.1),

The transport of wastes out of metropolitan Melbourne to Maddingley Brown Coal further reduces the need to schedule any sites in the north and west of Melbourne (Part 3 - section 2.2).

The geology, hydrogeology and patterns of development in metropolitan Melbourne are such that there is a relative abundance of sites that could be suitable for development of landfills. Furthermore, the extraction rate from metropolitan Melbourne quarries is creating space about six times faster than it is being filled (Part 3 - section 3.3).

Even a conservative scenario, which assumes that there will be no reduction in waste to landfill over the Schedule period to 2017 - 18, does not indicate the need for any additional landfill sites (Part 3 - section 4.1).

Consistent with the Waste Management Policy (Siting, Design and Management of Landfills), works approvals and licenses allowing the development of new landfills (or new cells of existing landfills) should not be granted until the closure or imminent closure of existing operating landfills in their relevant subregion has created a demonstrable need for new landfill space...(Part 3 -Section 4.1)

1. Mr Maltby's evidence was that currently (and for the foreseeable future) the air space available for landfill in Melbourne is likely to increase as the three largest landfills in terms of capacity are co-located with basalt quarries. These landfills are located at Woolert, Deer Park and Wests Road Werribee. In addition, the Maddingley Brown Coal landfill near Bacchus Marsh is also used for metropolitan waste. The rate of creation of air space by the extraction of stone exceeds the rate of landfill space consumed for the entire metropolitan area. Mr Maltby noted that the state government Toward Zero Waste Strategy contains a target of significantly less waste landfill than the current amount of around 4 million tonnes per annum. In his opinion, it is likely that with ongoing quarrying**,** reserves will continue to increase for decades, giving Melbourne more than 100 years of landfill space. Mr Maltby identified that the 10 million m³ of air space available at the Maddingley Brown Coal site was not included in the RWMP as it lies outside the region in the Moorabool Shire. In addition, at the time of the preparation the RWMP it was uncertain as to whether the Maddingley site would obtain an extension to the existing Works Approval area. However that now no longer is the case as the entire 10 million m³ is available as Type 3 landfill space and there are many additional tens of millions of cubic metres of future air space that can be created by further extraction activities at the site.
2. Despite Mr Gobbo's contention to the contrary, the need for the development of additional land filling space is an appropriate consideration as part of a planning permit application for a new landfill. It does not mean that we have to undertake a full investigation of metropolitan landfill requirements, rather that we have to take account of landfill policy and its direction that strongly discourages the establishment of new landfills.
3. The EPA also submitted that the aspects in the screening hierarchy at Clause 13 of the Waste Management Policy, including community need, are matters for the relevant Regional Waste Management Group and not for the Tribunal. It was submitted that Council involvement in the siting of landfills was limited to input during the development of the RWMP. We do not agree with that assessment. Mr Lindeman made reference to the decision of Osborn J in Roads Corporation v Love[5]:

"In so concluding I am not of course to be taken to be holding that the RWMP was a mandatory document. The SPPF, the BPEM and the RWMP were policy documents. As such, they bore directly on but were not necessarily determinative of the exercise of the relevant discretion to grant respectively a planning permit and a works approval. Nevertheless the relevant policy imperative was plain."

1. Clearly as policy documents they provide guidance to decision makers, but the key point is that they are not necessarily determinative of the exercise of the relevant discretion. If it was intended by Government that a Council's involvement in the siting of landfills be limited to input during the development of the RWMP then we would have expected the Planning Scheme to say so. We contrast this situation with sites affected by a Heritage Overlay where a permit is not required to develop a place which is included on the Victorian Heritage Register.[6] In those cases the Planning Scheme avoids a 'doubling up' of the approval process and despite the existence of the Heritage Overlay, heritage issues for such sites are no longer to be considered under the Heritage Overlay provisions.
2. Mr Wren on behalf of the Responsible Authority submitted that:

It can be accepted that the RWMG has the role of carrying out an assessment. That does not preclude others such as the Council also considering such matters where it is appropriate to do so. Further, it would be incorrect not to do so, if there is reason to suspect that the RWMG has not carried out such an assessment. The lack of a power to review RWMP's is as much a reason for independently and separately considering the issue as not. The consideration of siting criteria in this case is not a collateral challenge of the site rankings created by the RWMP. Further, it is clear from the Western Recycle case and from the observations of Osborn J. in Roads Corporation v. Love that the views and conclusions set out in plans do not bind permit applicants.

1. Clause 11(3) of the Waste Management Policy that deals with Strategic Land Use Planning states that:

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

1. This clause clearly requires us to make a decision which is consistent with the policy.
2. This position is further strengthened by section 1 of the Environment Protection Act 1970 which includes eleven principles of environment protection including the concept of shared responsibility:

Protection of the environment is a responsibility shared by all levels of Government and industry, business, communities and the people of Victoria. (This principle is also included at cl. (6)(a) of the Waste Management Policy).

1. We therefore do not agree that consideration of need, and more particularly policy about need, is something beyond the scope of our consideration of this new permit application.
2. We have concluded that as the Tribunal (on review) has a shared responsibility for the protection of the environment, we should review the planning application in the light of current environment legislation, policy and guidelines and not simply accept decisions made under superseded circumstances. We consider this to be of particular relevance as there have been significant changes to waste management policy and environmental standards subsequent to the issue of the Works Approval in 2002.
3. We interpret this direction to include reference to current Landfill guidelines and landfill policy, including Victoria's Towards Zero Waste Strategy - 2005. We note that the strategy was released after the issue of the original planning permit and Works Approval for the site. Although it is speculative, we consider it is probable that had the original application for planning permit been submitted after the release of the Towards Zero Waste Strategy, then the site would not have been developed. Our reasons for coming to this view are based on the following sections of the Towards Zero Waste Strategy:

The landfill levy is a twofold incentive. As well as discouraging the disposal of waste to landfill through higher disposal fees, funds from the levy are directed to the development of recycling infrastructure and other initiatives including education programs (page 15).

Landfill levy funding will be used to support the development of processing infrastructure to replace landfill as the preference for waste disposal. Sustainability Victoria and EPA Victoria will work with waste management groups to implement government policy which minimises the development and use of landfills (page 29).

Landfill levy funding will be used to support the development of processing infrastructure to replace landfill as the preferred option for waste disposal (page 36).

Action 26. EPA Victoria will investigate potential landfill bans for C&D waste types and/or streams (page 40).

Action 27. EPA Victoria would investigate the practicability of landfill bans for C&I. waste types and/or streams (page 40).

1. We deal in greater depth with the potential environmental impacts in the next section.

Given that the proposed landfill is well within the 200 metre buffer specified in the BEPM, can we be confident that there are no unacceptable risks to residents living in proximity to the proposed landfill?

1. The introductory section of the BEPM comments that disposal of materials to landfill is the least preferred management option (for solid wastes) but also states that landfills will continue to be required in the future to manage those wastes that cannot currently be practicably removed from the waste stream. Section 5 is a set of best practice considerations for screening of potential landfill sites. As noted previously it includes a hierarchy of ten aspects that need to be considered. Relevantly to this proposal for a solid inert waste landfill, it includes the following for different aspects:

1. Groundwater - landfills must not be located below the regional water table and are strongly discouraged due to the continual and additional operational requirements to: * maintain and operate pumps * manage an increased volume of groundwater or leachate. * Intensively monitor both groundwater and leachate quality and levels. 2. Groundwater - waste must be deposited at least two metres above the long-term undisturbed depth to groundwater unless: * additional design and management practices to protect groundwater quality will be implemented * regional circumstances exist that warrant the development of a landfill in this manner.

1. Alternative potential uses - rehabilitation of an extractive industry site by landfill is not in itself sufficient justification for landfill, but benefits that accrue to the community should be considered.

1. Buffer distances - appropriate buffer distances (200 metres for solid inert waste landfills) must be maintained between the landfill and sensitive land uses (receptors) to protect those receptors from any impacts resulting from a failure of landfill design or management or abnormal weather conditions. Generally the 200 metre buffer is set to manage odour and landfill gas risks. Other risks such as fire, litter, noise and safety exist but buffers for these fall within the buffers required for odour and landfill gas. The 200 metres is measured to the edge of the closest cells including those that are closed. It is noted that where this buffer distance has been or is proposed to be encroached, design and management practices need to be significantly increased to provide the same level of protection to sensitive land uses. 2. Geological setting - landfills should be constructed in areas where the landform is stable. 3. Surface waters - a solid inert waste landfill may be located within 100 metres of surface waters if an assessment demonstrates that there is not a risk of contamination to surface water and protective measures are in place.
2. In our view the BEPM largely establishes the following key factors or default positions for the siting of any solid inert waste landfill:

1. Landfills must not be located below the regional watertable and waste must be deposited at least 2 metres above the long term undisturbed depth to groundwater. 2. A 200 metre buffer distance is required between a sensitive use and the nearest landfill cell.

1. A solid inert landfill should be located at least 100 metres from surface waters.
2. The proposal does not satisfy these key factors. It is also clear that the BEPM provides for a reduction or variation to these default positions provided a convincing case is made for a different outcome. In this case the landfill will sit below the regional watertable, waste will be deposited much less than 2 metres above the long term undisturbed depth to groundwater (in fact below the watertable) and the buffer distance to the nearest sensitive receptor is less than half the 200 metres buffer distance (75 to 100 metres to dwellings on the opposite side of Sunshine Avenue).
3. The focus of most of the evidence was on justifying why these default positions should be varied based on the design. While we may have some reservations about some aspects of the design and the ongoing management arrangements (for example the way in which the final cap connects with the existing ground level and quarry wall), in a technical sense we do not doubt that the proposed design and the management regime can result in outcomes that satisfy the EPA. To that extent we adopt the position of the Tribunal in SITA Australia Pty Ltd v Greater Dandenong CC that:

[22] ...The EPA is a repository of expertise that enables it to undertake expert scientific and engineering scrutiny of proposals to ensure that all reasonable steps are taken to reduce risks to human health and the environment to acceptable levels.[7] The EPA possesses a level of expertise that is not possessed by planning and responsible authorities.

[23] In general terms, the EPA is the pre-eminent, expert authority within the state on all matters concerning the control of pollution and protection of the environment. In our view, its assessment of matters related to these issues ought be accepted as authoritative and in preference to other assessments or opinions in the absence of an established process whereby competing assessments or opinions can be tested and a binding determination made. The same approach should be adopted with respect to official EPA policies and guidelines.

1. As confirmed by Mr McIntosh, the 200 metre buffer is there in case the best laid plans fail. It recognises the inherent incompatibility of sensitive residential land uses and landfills, and the need to provide separation between the two uses. It is a precautionary approach and one that we have noted at Kealba where the sensitive uses are now well within the 200 metre buffer. However, we agree with Mr Gobbo's submission that we are not reviewing details of the Works Approval or that we should usurp the environmental role of the EPA.

Can we be confident that potential off-site amenity impacts can be managed within acceptable limits?

1. Potential amenity impacts concern dust, noise, landfill gas, litter, visual appearance and traffic**.** Despite submissions and evidence to the contrary, we agree that in-principle, each one of these can be managed so that the impacts on residential neighbours is minimised to an acceptable degree. However achieving acceptable impacts is entirely dependent on an ongoing and high level of monitoring and management of the landfill systems. We are aware that there have been instances where systems fail or where operating procedures are deficient. The piping failure in the bund wall on the southern side of Cells 1A and 2A is an example of where failure has occurred on this site in the very recent past.
2. It is also clear to us based on the statements of those residents who gave evidence, that dust has been a major source of annoyance and ongoing concern. Photos tendered by residents clearly show dust rising from the existing operations. Any suggestions to the contrary are not credible in our view and the fact that the EPA has issued a Pollution Abatement Notice (PAN) demonstrates that the existing concrete batching and recycling plant have not always been managed appropriately. It is indisputable that remedial action has and is been undertaken to reduce this source of annoyance and we were advised of this (and observed it on our inspection). However, our decision on this landfill application does not alter anything arising from the existing activities within the wider quarry site.

1. The final use of the site is not central to our assessment of the application for a landfill. We note that under current planning controls a permit would be required for a golf course, although given the time frames involved in reaching that point, different permit requirements may apply. What is important however is the basic finished ground level that would be the starting point for any future use or development on the site. We do not support a landfill rising up to 15 metres above natural ground level for visual amenity reasons and because dust, noise and litter control become more problematic once filling exceeds natural ground level. Given our decision to refuse the application it is not necessary to comment on the final landscape proposal presented by Mr Wyatt.
2. Mr Kovachevich made an impassioned submission opposing the landfill and suggesting other preferred alternative uses including housing and sporting developments. As we explained at the hearing, it is not our task to consider alternative use and development for the site. Instead we are only required to assess the particular proposal before us and to decide whether it should be approved or refused. Our refusal of the landfill may mean other alternative uses for the site may be investigated, but that is not something that we are required to comment upon.

1. We have considered the various submissions, evidence and relevant documents, including those which were not in existence when the original planning permit and Works Approval were approved. We have concluded that, on balance, the proposal does not pass the test of providing a net community benefit and sustainable development for the benefit of present and future generations. It is not an acceptable planning outcome.

1. Having regard to the above, we will therefore affirm Council's decision and direct that no permit is to be issued.

[1] This is the smaller site area shown on the amended plans revised to exclude all land outside the Special Use Zone 3.

[2] (paragraphs 15 and 16 of the applicant's submission:

[15] The Applicant also submits that the present proceedings provide the RA, the community and the Tribunal with an opportunity to impose modern operating conditions on the landfill.

[16] That opportunity will not be available if the Applicant were to be successful in pursuing its assertion that (that) planning permit P990025 provides permission to the Applicant to landfill the site.)

[3] Program Manager Landfills, Statutory Facilitation Unit EPA Victoria.

[4] Geotechnical Engineer and Waste Management Consultant.

[5] Roads Corporation v Love [2010] VSC 32

[6] Cl. 43.01-2 of the Brimbank Planning Scheme.

[7] We are aware that the EPA consists only of one person, the Chairman. However, in the present context where we refer to the EPA we are referring to the organisation.