Victorian Civil and Administrative Tribunal|2018-03-27

C and D Recycling v Greater Geelong CC [2018] VCAT 451 (27 March 2018)

C and D Recycling v Greater Geelong CC [2018] VCAT 451

C&D Recycling Pty Ltd is granted leave to amend its application under s 87A of the Planning and Environment Act 1987 and to substitute amended plans in the proceeding, both generally in accordance with the material filed on its behalf by Matthew Payne of Spiire on 15 February 2018, and comprising:

Note: Although this proceeding P1741/2017 was heard together with proceeding P2317/2017 (an application by the responsible authority to cancel the permit), a separate order will be issued in that other proceeding.

For The Australian Sawmilling Company Pty Ltd (TASCO)

Proposed change of use and development from 'materials recycling' to 'transfer station', and amendment of permit conditions.

Application by C&D Recycling Pty Ltd under s 87A of the Planning and Environment Act 1987, seeking to amend permit PP-163-2015.

Design and Development Overlay - Schedule 18 (Geelong Ring Road Employment Precinct)

The Land at 300-400 Broderick Road, Lara comprises two irregularly shaped allotments, both oriented to Broderick Road, with a combined site area of approximately 14.49 ha.

C&D Recycling Pty Ltd (CDR) operates a materials recycling business on land at 300-400 Broderick Road, Lara (Land). The Land is owned by The Australian Sawmilling Company Pty Ltd (TASCO), and comprises industrial-zoned land forming part of the Geelong Ring road Employment Precinct (GREP).
In August 2016, VCAT directed Greater Geelong City Council (Council) to issue a planning permit PP-163-2015 (Permit) to formalise the use and development of the Land for 'materials recycling', subject to conditions[2].
CDR's operations on the Land have had a chequered history, and have been the subject of other enforcement and permit-related proceedings at VCAT. Some of this background history are summarised in our interim decision in the related proceeding P2317/2017[3].
The Land now contains large stockpiles of mixed construction and demolition waste including concrete, timber, hard and soft plastics, tyres, cardboard, carpet, foam and metal, and smaller stockpiles of timber, mulch, medium density fibreboard, plasterboard, mixed fines. Little (if any) materials recycling is actually taking place on the Land, and CDR concedes that it lacks a sustainable off-take market for the materials.
Importantly, both the Country Fire Authority (CFA) and the Environment Protection Authority (EPA) have serious concerns with fire safety and other risks associated with the current stockpiles, and both agencies participated at the hearing. CDR concedes that it is in breach of several permit conditions.
Separately from these other proceedings, CDR now seeks to amend the Permit. CDR says that this will assist it in regularising the use and development of the Land through a two-stage process, and enable it to take advantage of emerging opportunities to use or transfer the stockpiled material.
Section 87A of the Planning and Environment Act 1987 allows a person who is entitled to use or develop land under a permit to request VCAT to amend a permit issued at its direction. This decision and reasons is concerned solely with CDR's request made under that provision.
At the conclusion of the hearing, we indicated that the request to amend the Permit would be refused, and we dismissed the application. We indicated then that there were three primary reasons for our decision, which we would elaborate upon briefly in our written reasons. Those reasons were essentially that:
- the limited material supplied by CDR was wholly insufficient to support its application to amend the Permit.
- the proposals tabled by CDR, indicating some interest in the use of some of the stockpiled material to produce a biomass fuel feedstock, or to produce energy from the waste through gasification, have not been progressed with any degree of certainty and/or would require other regulatory approvals, and do not provide a basis to amend the Permit in the manner proposed.
- the application to amend certain conditions on the Permit appears to us to lack any credible planning purpose, and seems to be more designed to remove or defer compliance with important conditions on the existing Permit.

Preliminary issue - scope of the proposed amendment

Before briefly elaborating on our three reasons for dismissing the application, we will also record our decision on a preliminary issue.
In its initial s 87A application, CDR had sought only to amend Conditions 13, 21, 22, 31 and 38 on the Permit - e.g. the carrying out of landscaping by 31 May 2018 under Condition 13, the carrying out of stormwater drainage and vehicular crossings by 9 August 2018 under Condition 21, and the carrying out of fire management works within 90 days of a VCAT decision under Condition 31. Without commenting on the specific merits of the particular amendments then sought, there was at least some logic to the application, in seeking to set new timelines for compliance with each of those existing conditions in place of other timelines that had already passed.
Shortly before the hearing, however, CDR sought to materially change its s 87A application. In particular, it sought to:
- amend the permitted use and development from 'materials recycling' to 'transfer station'.
- substantially amend the permit conditions through the introduction of a two-stage process, with several construction and EPA conditions deferred to the second stage.
- substitute amended layout plans.
The Council opposed the amendment of the application. Indeed, the Council went so far as to suggest that we did not have jurisdiction to allow the amendment, on the basis that it would amount to a transformation of the Permit as opposed to a modification to it.
After some consideration, we decided to allow CDR to amend its s 87A application. Key amongst our reasons for this were the following:
- in the absence of any clear prejudice or procedural unfairness to other parties, we consider that an applicant should be able to amend its application to VCAT to clarify or restate the relief that it seeks. This is perhaps moreso the case in relation to a discretionary request to amend a planning permit under s 87A. None of the other parties suggested that they were particularly prejudiced by the proposed amendment of the s 87A application, and they were all ready to deal with its merits without the need for any adjournment or costs.
- in making its application to amend the s 87A application and to substitute amended plans, CDR had complied with the terms of a VCAT order that had followed a compulsory conference, and that had specifically allowed for such an application to be made[4].
- although the Council contended that the amendment proposed by CDR would amount to a 'transformation' rather than a 'modification' of the Permit, we are not convinced that this is the case having regard to the facts and circumstances of this matter.
On this latter issue, the Council relied on the seminal decision of Justice Brooking in Addicoat v Fox(No 2)[5] for the statement of principle regarding a 'transformation' versus a 'modification', as well as other more recent cases that had applied the same principle. Those decisions concern limits on the power of the Tribunal and its predecessors to issue a permit radically altered from that sought in the initial permit application to the Council. The jurisdiction of VCAT under s 87A, to amend an already existing permit issued previously at the direction of VCAT, is broad and somewhat different. Whilst we are somewhat sympathetic to the Council's underlying concerns about the extent of alteration now sought to the Permit, we consider that the question of whether or not the amended s 87A application might substantially alter the Permit is perhaps a matter that goes more to the ultimate decision on the application to VCAT, rather than whether the application itself can or should be amended.
As we have also said, we are not convinced that there is a 'transformation' here. It is true that CDR now proposes to amend the Permit to change the use of the Land from 'materials recycling' to 'transfer station'. But when one has regard to the definitions of these two land use terms in the planning scheme, there is a considerable inter-relationship between the two uses. 'Materials recycling' is defined as:

'Land used to collect, dismantle, treat, process, store, recycle, or sell, used or surplus materials'.

'Land used to collect, consolidate, temporarily store, sort or recover refuse or used materials before transfer for disposal or use elsewhere'.

CDR is intending to continue to collect, store and dispose of used materials. Its current and proposed operations theoretically meet both definitions, so the proposed change in the actual use (if any) is not so radical as to amount to a transformation. Moreover, the proposed change would allow only for 'temporary' storage, and would not allow for dismantling, treatment or processing of the materials on the Land. In the context of the defined land use terms, CDR would actually be reducing the scope of its currently permitted use. To the extent the principle in Addicoat is at all relevant, Justice Brooking had expressly declined to decide whether an alteration that limited a proposed development or use, as opposed to extending it, could cease to become a 'modification' and amount to a 'transformation' of the proposal[6]. Again, we think that the extent of the proposed change here is a matter relevant to the exercise of our discretion under s 87A, rather than one that limits our jurisdiction to consider the amended application.
The Council also referred us to the decision in Bestway v Monash CC[7],which had considered the Addicoat principle in the context of an amendment to a permit. There, Deputy President Gibson had indicated that, for a completely new or unrelated use or development, the proper approach is to apply for a new permit, rather than applying to amend an existing permit in such a way that would result in a different permit or leave nothing of the original permit. We agree with these sentiments. However, the change contemplated here is not for a completely new or unrelated use or development, and many of the elements of the existing Permit are retained, albeit with a proposed two-stage process for compliance. There is nothing in the decision in Bestway that suggests we should not allow the change to the s 87A application, and to consider the amended proposal on its merits. In our opinion, the statutory framework contemplates that amendments of the nature proposed here can be pursued through a s 87A process.
Obviously, our above comments relate to the proposal to amend the s 87A application, rather than the substantive merits of the amended application to amend the Permit.

Substantive issues - key reasons for refusal of s 87A application

Section 87A of the Planning and Environment Act 1987 authorises VCAT to amend a permit that has been issued at its direction 'if it considers it appropriate to do so'.
As we foreshadowed at the hearing, we now elaborate briefly on our three reasons for refusing the s 87A application, as amended. It will be apparent from these reasons that we consider that it is not appropriate to amend the Permit in the manner proposed.
We note for the record that there were some other grounds upon which various of the parties contested the s 87A application, including contentions by the Council that the proposed amendments to the Permit would be inconsistent with the orderly planning of the GREP, a potential inconsistency with other planning scheme provisions or policy, and/or issues relating to the substantive non-compliance with the existing Permit. Given the three core reasons we have chosen to rely upon, it is unnecessary to deal with these additional grounds.

The limited material supplied by CDR is wholly insufficient to support its application.

Apart from filing its amended s 87A application, in the form of a 'track changes' version of an amended permit, and six drawings and plans, CDR did not provide any additional material or evidence at the hearing in support of its application (save for some limited information about the feedstock and gasification proposals that we deal with separately, below, within our second reason for refusal). It appears that the proposed amended Permit and drawings may have been prepared by Spiire (town planners), but they were not called to explain or give evidence about the changes.
We agree with the Council and TASCO, supported by the CFA and EPA, that the material supplied by CDR is wholly insufficient to support its application. We agree that it would not be open to us to reasonably or objectively form a view that it is 'appropriate' to amend the Permit on the basis of the very limited information supplied. In particular:
- there is no satisfactory information provided as to how the proposed 'transfer station' will operate.
- the key difference between the existing permitted materials recycling, and the proposed transfer station (as defined land use terms) is that the future storage of materials would be temporary, and the materials will simply be sorted before transfer for disposal or use elsewhere. There is no information at all about these key components of the proposed amended use.
- there is nothing in the proposed conditions that demonstrates how the existing stockpiled materials will be reduced to comply with the proposed conditions of the amended Permit.
- there is no information to explain the two-stage process, and the deferred timelines for compliance with EPA conditions, or other conditions relating to landscaping and/or the proposed reduction in car parking.
- given the history of non-compliance, there is no information to explain how or when the CFA conditions will be complied with as part of the Stage 1 process, or whether they will be maintained within Stage 2. Indeed, Mr McAuliffe conceded in submissions that he did not have the funds to comply with these conditions in the short-term.
- the Stage 2 layout plan seems to presume that an area immediately to the north of the Land, not presently controlled by CDR, will be used in the future for processing some of the materials (rather than their 'transfer'), and that this could occur within 18 months, but there is no information to explain this.

The two 'proposals' tabled by CDR are uncertain, and do not provide a basis to amend the Permit in the manner proposed.

CDR says that the amendment to the Permit will enable it to take advantage of two possible opportunities to use or transfer the stockpiled material.
The proposals tabled by CDR indicate some interest in the use of some of the stockpiled material to produce a biomass fuel feedstock, or to produce energy from the waste through gasification.
We agree with the Council, the EPA and TASCO, supported by the CFA, that these proposals have not been progressed with any degree of certainty that would give us confidence to place weight in them. In particular:
- CDR tabled a 'Heads of Agreement' that it had recently entered into with Pacific Heat and Power Pty Ltd (PHP) to investigate the feasibility of using some of the stockpiled material to produce a biomass fuel feedstock. It was initially suggested that someone from PHP would give evidence about the proposal, but CDR chose not to call such evidence. We were told that the feasibility study has yet to be completed. However, it is clear from the Heads of Agreement that PHP would, at best, take only non-contaminated timber from the stockpiles for use as a feedstock material, and the whole of the timber resource within the stockpiles (including CCA timber such as treated pine that could not be used) is estimated to be no more than 29%. PHP also seems to require some certainty as to future timber supplies to create an ongoing viable business, and seems to envisage a processing plant being capable of being accommodated on or near the Land.
- CDR also tabled an email from a Mr Russell Hanna from LLF Technologies (LLF). The email was dated 28 February 2018 at 11:22pm (i.e. the night before the commencement of the VCAT hearing on 1 March, and apparently following a 'chance' meeting earlier that day). The short email suggests that LLF has developed a novel energy from waste (EfW) plant, using a patented reactor, where waste material is reduced to gas within fractions of a second. A short summary of the process was attached, but it appears that that LLF does not yet have any existing plant that operates this technology. In the email, Mr Hanna expresses a preliminary interest in locating such a gasification plant on a compliant site such as CDR's land. The email somewhat optimistically proposes that LLF could be operational on the Land by 1 July 2018. However, there is no detail or certainty about this proposal, and significant investigation and additional regulatory approvals would be required - particularly for a demonstration site to test new technology. In our experience, this would take many months to achieve, if at all, particularly if use of the Land for this purpose is opposed by the Council and/or EPA.
More particularly, we agree with TASCO that the proposed amendment to the Permit is unnecessary, even if CDR was to pursue either of the biomass fuel feedstock or gasification proposals. Indeed, the proposed amendment to the Permit could be counter-productive to the achievement of either proposal. Both proposals rely upon some treatment or processing of the materials, which would not be able to occur on the Land if the Permit was changed from 'materials recycling' to a 'transfer station'. This processing would have to occur on other land unless new and separate planning permission was granted for either proposals, and both proposals would also require other regulatory approvals - including from the EPA. To the extent CDR seems to contemplate these proposals occurring on land to the immediate north of the Land, which it does not presently control, there is no certainty that this can or would be approved.
Nothing we have said above suggests that there may not be some merit in looking to creative opportunities to process, recycle or use the stockpiled materials (or to convert the materials to an energy source) as a means of creating an off-take market to reduce the existing stockpiles and addressing some of the concerns about the current operations on the Land. It is simply the case that the current proposals lack any degree of certainty, and do not of themselves provide a basis for amending the Permit in the manner proposed.

The application appears to be designed to remove or defer compliance with important conditions on the Permit.

As we have indicated, one of the key changes proposed through the amended s 87A application is to split the development and use of the Land into a two-stage process. This does not appear to us to reflect a clear planning purpose, given that the entirety of the Land is already being fully utilised with the existing material stockpiles.
Indeed, the two-stage process seems to envisage a status quo arrangement under Stage 1 for 18 months to 2 years, with Stage 2 dependent upon CDR achieving a sustainable off-take market for the stockpiled materials - primarily through the use of other adjacent land for the biomass fuel feedstock or gasification proposals.
However, a close analysis of the proposed amended Permit, compared with the existing Permit, shows that a number of conditions on the existing permit have been removed (without any demonstrated planning justification for doing so), and a number of important conditions have been deferred until Stage 2 with extended or uncertain timelines for compliance (including the EPA conditions, and again without any demonstrated planning justification for doing so). Although some of the CFA conditions have been notionally retained within Stage 1, the proposed changes to the Permit merely require an updated Risk Assessment, Fire Management Plan and Emergency Management Plan within defined timelines (e.g. within 60 days), without any certainty as to when any works required under those plans might be implemented. Moreover, CDR implicitly conceded that without a sustainable off-take market for the stockpiled materials (which would create the trigger for Stage 2), it did not have the funds to implement any such works on the Land in the short to medium term.
We agree with the EPA and the Council, supported by the CFA, that in the circumstances, the amendments to the Permit conditions proposed by CDR could entrench a status quo position whereby the existing permit breaches could continue indefinitely, with associated and continuing risks to the environment and human health. Even if we had been prepared to contemplate an amendment to the Permit to facilitate some of the emerging opportunities that CDR seeks to achieve on the Land, we would have expected CDR to present us with clear and enforceable conditions, with clear and enforceable timelines, to deal with the fire safety and environmental risks associated with the existing stockpiles. It has not done so.
Indeed, CDR gave us no reason to believe that its proposed amendments to the Permit were designed to do anything other than defer its existing obligations.

It follows from the above that CDR's request to amend the Permit under s 87A of the Planning and Environment Act 1987 is refused, and the application is dismissed.
This means that planning permit PP-163-2015 remains in its existing form, and subject to its existing conditions, pending the outcome of the related proceedings P2315/2017 and P2317/2017.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with VCAT practice, not all of this material is cited or referred to in these reasons.

[2] C&D Recycling Pty Ltd v Greater Geelong CC [2016] VCAT 1207 (Members Bennett & David).

[3] C&D Recycling Pty Ltd v Greater Geelong CC [2018] VCAT 452.

[4] Order 6 in the orders of Member Hadjigeorgiou dated 12 February 2018.

Environment Act 1987

C and D Recycling v Greater Geelong CC [2018] VCAT 451

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

C and D Recycling v Greater Geelong CC [2018] VCAT 451 (27 March 2018)

Parties

Legislation Cited (1)