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

Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099 - VCAT 2011 case summary — Zoe

[20]

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.
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).
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.
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.
Section 4 of the Planning and Environment Act 1987 sets out the objectives of planning in Victoria as follows:

[33]

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.
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.
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.
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].
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.
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.

[40]

We note that the 2001 BEPM referenced above has been replaced by the 2010 version discussed in the various submissions and witness statements.
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.
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.
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).
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.
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.
Ms Porter also noted references in the RWMP which identified a consistent theme of the lack of need for the development of more landfills:

[47]

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.
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.
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]:

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Barro Group Pty Ltd v Brimbank CC [2011] VCAT 1099 (9 June 2011)

Parties

Legislation Cited (3)