Casey City Council v Seventh Day Adventist Church

2 Subdivision of the land for residential use was consistent with the zoning of the land and a number of strategic policy objectives expressed in the Casey Planning Scheme. Once the subdivision had occurred, the use and development of the 23 lots for dwellings would not require a permit.

3 On 25 November 2008, the Council refused to grant a permit for the subdivision on the basis of the proximity of the subdivision to a major regional landfill on Hallam Road (the 'SITA landfill') and to an adjacent concrete batching plant, having regard to the potential effect that these existing land uses could have on residential amenity. The main issue with the SITA landfill was the appropriate minimum buffer distance between the landfill and the proposed development; the main issue arising from the proximity of the proposed development to the concrete batching plant was noise.

4 The respondent applied to the Victorian Civil and Administrative Tribunal under s 77 of the Act for review of the Council's decision to refuse the permit application.

5 On 31 December 2009, the Tribunal ordered that the Council's decision to refuse the permit be set aside and granted a permit allowing the land to be subdivided, subject to conditions. In setting aside the decision of the Council and granting a permit for the subdivision, the Tribunal found that the potential for landfill gas migration, landfill gas odours, windblown dust and litter or other potential offsite impacts from the SITA landfill was not such as to warrant refusal of a permit and that noise from the concrete batching plant could be dealt with by way of conditions on the permit.

6 In considering the potential for landfill gas migration, the Tribunal said, among other things, that it had had the benefit of reading a report by the Victorian Ombudsman[1] into a well publicised incident of gas migration to a housing estate known as the 'Brookland Greens Estate' from a landfill previously operated by the Council at nearby Stevensons Road, and expressed itself to be satisfied that "the SITA landfill site involves a different set of circumstances to those at Stevensons Road."[2]

7 In relation to buffer distances from the SITA landfill more generally, the Tribunal concluded that based on the material presented, it was satisfied that the SITA landfill would not adversely impact on the proposed residential lots. At worst, it was only towards the north-western corner of one tipping cell that the recommended 500 metre buffer was breached,[3] and it accepted evidence from the respondent that changes to the waste stream by the time the cell was likely to become active (predicted to be in 2023-24) would result in the need for smaller separation distances.[4]

8 In relation to noise impacts from the concrete batching plant, the Tribunal said that it would only approve the proposed development if it could be satisfied that an acoustic barrier would be constructed to alleviate those impacts. It identified an embankment on the adjacent land as the site for the barrier and imposed a permit condition - Condition 3 - directed to ensuring that the barrier was duly constructed. It imposed a further condition - Condition 27 - apparently aimed at securing recognition by future owners that the subdivision was within landfill and concrete batching plant buffer areas and that those uses were intended to continue into the future.

9 Leave to appeal was granted 26 February 2010 by Cavanough J. By Notice of Appeal filed 5 March 2010, the Council now appeals the Tribunal's decision under s 148 of the Victorian Civil and Administrative Tribunal Act 1998.

10 The Notice of Appeal contains eight grounds of appeal, three of which were not pursued and one of which was only pursued in part. The grounds ultimately pursued are as follows:

1. The Council was denied natural justice by the Tribunal in that the Tribunal relied on an extrinsic document released after the hearing of the application for review, being the Ombudsman's Report, without informing the parties that it intended to rely on the said Ombudsman's Report and without giving the parties the opportunity to address it on that report.
2. The Tribunal failed to provide any or any proper reasons for its conclusion that it was satisfied 'that nearby land will not be affected by gas migration in the way that the Brookland Greens Estate was affected'.

1. The Tribunal erred in law when determining that a minimum buffer distance of 320 metres to the nearest active landfill cell would be an acceptable buffer distance, in that the Tribunal ... (e) failed to consider and/or apply the provisions of the BPEM Guidelines[5] as those Guidelines relate to the reduction of buffer distances.
2. The Tribunal erred in law by directing the grant of a permit subject to an invalid condition, namely Condition 3 because:

(a) The condition requires the permit holder to undertake works on the land of another, being a matter beyond the control of the permit holder;

(b) The condition purports to require the responsible authority to refuse to certify a plan or issue a statement of compliance in circumstances where the responsible authority is not able to do so;

(c) The condition is fundamental to the decision of the Tribunal and the Tribunal would not have directed the issue of a permit without the condition.

1. The Tribunal erred in law by directing the grant of a permit subject to an invalid condition, namely Condition 27, because:

(a) The condition required the permit holder to enter into an agreement pursuant to s 173 of the Planning and Environment Act 1987 for purposes that are not authorised by the Act;

(b) The condition is fundamental to the decision of the Tribunal and the Tribunal would not have directed the issue of a permit without the condition;

(c) The condition is uncertain;

(d) The condition is ineffective.

11 For the reasons that follow, Grounds 1 and 7 and 8 are made out. The Tribunal failed to accord procedural fairness to the Council and erred in the formulation of conditions. The appeal will be allowed, the decision of the Tribunal set aside and the proceeding will be remitted to the Tribunal to be determined according to law.

Ground 1: Natural justice and the Ombudsman's Report

12 As the Tribunal observed at the beginning of its reasons, events surrounding the gas migration from the Stevensons Road landfill to the Brookland Greens Estate caused significant angst.[6] Under the heading "Is this land adversely affected by gas migration?" the Tribunal referred to the "well publicised impacts of methane gas migration from a landfill in Stevensons Road on dwellings within the adjoining Brookland Greens Estate" and to the consequential assessments undertaken by the Environment Protection Authority ('EPA') of the potential for methane gas migration from 260 operating and former landfill sites across Victoria. Only eight of those sites were identified as having a methane concentration above 1% at the landfill boundary.[7]

13 Importantly, the Tribunal also referred to an audit of the SITA landfill dated 30 June 2009 (the '2009 audit'), which concluded, among other things, that methane gas migration had not occurred at the landfill since the gas collection system was upgraded in late 2008.[8]

14 The Tribunal recorded that on its inspection of the SITA landfill, it had been able to observe the location of the above ground gas collection system and the small power station operated using collected gas. [9] It then said:

... We have also had the benefit of reading the Ombudsman's Report on the Brookland Greens Estate which was released after the last day of hearing, and of understanding the circumstances surrounding that particular site and subsequent events. Although Council maintained its objection to the proposed subdivision of the review site because of the risks of landfill gas migration, we are satisfied that the SITA landfill site involves a different set of circumstances to those at Stevensons Road, and that the 2009 audit confirms that nearby land will not be affected by gas migration in the way that the Brookland Greens Estate was affected. [10]

15 The Ombudsman's Report was released after the conclusion of the hearing before the Tribunal. The Council submits that it should have been given notice of the Tribunal's intention to rely on the Ombudsman's Report and the opportunity to make submissions concerning the admissibility of the Ombudsman's Report, the constitution of the Tribunal when deciding on its admissibility, or the appropriate weight that it ought to be given if admitted into evidence. It says that the opportunity to make submissions on the relevance, weight and appropriate use to be made of the Ombudsman's Report was especially important in light of the fact that the Tribunal was constituted of planning expert members, not legal members, and that failure to give it an opportunity to make submissions constituted a breach of the hearing rule.

16 The respondent argues that no breach of natural justice occurred because there was no 'practical injustice'[11] to the Council. It contends that the Ombudsman's Report contains no findings of direct relevance to the matters in issue, and says nothing about the potential for landfill gas migration from the SITA landfill to the subject land, and that the Tribunal's use of the report was incidental to its findings regarding the merits of the permit application and 'purely for the purpose of drawing a comparison between the proposal before it, and a notorious example of where landfill gas migration had occurred'. It submits that it would be futile to hold a further hearing, because ultimately the Tribunal reached a conclusion with respect to the risk of adverse impact from landfill gas migration that was entirely consistent with all of the expert evidence presented to it and with the 2009 audit and there is no basis upon which to conclude that the evidence and material before the Tribunal that the risk of landfill gas migration from the SITA landfill was at acceptably low levels had changed. While the Council might take issue with many parts (if not all) of the Ombudsman's Report, it could point to nothing in the Report which would have affected either its position, or the position of the Tribunal, with respect to the potential for landfill gas migration from the SITA landfill.

17 The respondent says further that the material in the Ombudsman's Report was not adverse or prejudicial to the Council's case, because the Council conducted its case before the Tribunal in a manner which could only be understood as having abandoned the potential for landfill gas migration as a basis for refusing the permit application.

18 Finally, the respondent points out that the Tribunal is an expert tribunal, and that it is entitled to apply its own expertise to assist in understanding the evidence and then deciding the case. Knowledge which is available in the public domain, and which concerned a notorious example of where problems were experienced with landfill gas migration, is a matter which can be legitimately be expected to form part of the Tribunal's overall expertise.

19 I do not accept that because the Tribunal is an expert tribunal it can reach conclusions relevant to the matters in issue having regard to a report like the Ombudsman's Report, without giving the parties an opportunity to be heard as to how the Report's findings may or may not bear on the issues at hand. However, it is the case that the Report says nothing directly about the situation on the subject land and the Tribunal had before it evidence about the risk of gas migration from the SITA landfill, particularly the 2009 audit, that established that the risk of gas migration to the subject land was low. So much was accepted by all the experts.

20 The Council submits that while the Ombudsman's Report does not say anything about the potential for gas migration from the SITA landfill to the subject site, it does contain detailed information, opinion and recommendations concerning subject matters arising in the present case, including the BPEM Guidelines, which the Tribunal had to consider.[12] The Report deals with some matters as matters of general principle applicable beyond the particular circumstances of the Brookland Greens incident. Recommendations 47-51 comment in the abstract on the role of the EPA, its policies and guidelines, and the landfill buffer policy in particular. The question of whether to measure the buffer from the active tipping face or the landfill boundary, which was an issue in the present case, is discussed at pp 203-4. The Council submits that it is reasonable to suppose that such material, in addition to at least some of the other material identified by it, was capable of informing the Tribunal's reasoning. The Council also submits that what can be extracted from the relevant passage in the Tribunal's reasons is that the Tribunal relied on the Report at least to the extent of concluding that such problems as occurred at the Stevensons Road landfill would never happen at the SITA landfill.

21 In this context, the Council points out that it submitted to the Tribunal that it was inappropriate to allow development of residential lots so close to the SITA landfill because (among other things):

(a) the proposed development would breach the 500 meter buffer distance recommended by the BPEM Guidelines;

(b) this should not be permitted because of the potential for landfill gas migration, landfill gas odours, windblown dust and litter or other potential offsite impacts from a major regional landfill;

(c) the issue of buffer distances should be considered having regard to the effect of landfill gas migration from the Stevensons Road landfill on the Brookland Greens Estate;

(d) the buffer distance in the Waste Management Policy (Siting, Design and Management of Landfills) (the 'Waste Management Policy') had been increased in 2004 from 200 to 500 meters;

(e) although the 2009 audit might show that gas had not currently been migrating from the SITA landfill to the subject land, the question for the Tribunal was whether it was satisfied that gas migration would not occur during the 50 to 70 year life of the SITA landfill;

(f) future management of landfill gas was a matter of ongoing management.

22 In the light of the 2009 audit, it is unlikely that the Ombudsman's Report greatly influenced the Tribunal's findings on the risk of gas migration from the SITA landfill to the subject site. Nonetheless, I am not persuaded that the Tribunal's use of the Ombudsman's Report was purely illustrative and that the Report did not inform the Tribunal's conclusion as to the risk of gas migration from the SITA landfill in some way, albeit minor. The Tribunal's reasons do not reveal what use was made of the Ombudsman's Report, other than that the Tribunal had the 'benefit' of it. Although the 2009 audit and the expert evidence strongly supported a finding that the risk of gas migration was so low as not to warrant the refusal of a permit, I cannot be satisfied that the Tribunal would not have reached a different conclusion about the risk of gas migration in the longer term had the parties been given the opportunity to make submissions on the Report.[13] The Council ought to be able to challenge the conclusion, apparently derived from the Ombudsman's Report, that the subject land "would not be affected by gas migration in the way that the Brookland Greens Estate was affected".

23 Accordingly, the Tribunal ought, in my view, to have given the parties an opportunity to comment on the Ombudsman's Report before making its findings in relation to the potential for landfill gas migration.

24 Whether the Tribunal's reference to the Ombudsman's Report gave rise to 'practical injustice' also depends on whether the subject matter of the Ombudsman's Report - the question of landfill gas migration risk currently and into the future, and the appropriate buffer zone - remained a live part of the Council's case before the Tribunal or whether, as the respondent submits, that subject matter was removed from contention as a result of concessions made by the Council during the course of the hearing before the Tribunal.

25 There are a number of aspects of the hearing before the Tribunal which suggest that the Council abandoned any real reliance on potential landfill gas migration as militating against the grant of the planning permit.

26 The Council's witness, Dr Lorimer, gave expert evidence on issues associated with odour and dust impacts and landfill gas migration. On the question of landfill gas migration, he stated in his expert witness statement only that he was unable to reach any conclusion, as the EPA had not yet released its gas audit for the site. In evidence in chief, having then had the benefit of reading the 2009 audit, Dr Lorimer said "I'm quite happy to drop that bullet point or to change it to say that on the basis of more recent information, my concerns are assuaged." When questioned further about this, Dr Lorimer gave the following responses:

Now, I'm going to move on to another point that I make and that's in relation to the migration of landfill - - -?---Yes.

- - - and just so I understand the position, it's your position that there is no unreasonable risk to residential development of this land caused by the potential of migration of gas from the land?---My insurers would never welcome you to say something like that but basically what I'm saying is - - -

Unfortunately the tribunal requires you to - - -?---No, it doesn't require me to provide an opinion on something I don't have some personal knowledge about. What I was saying was that I'm satisfied that there has been what appears to be a proper audit and the results satisfy me that all is well but that's different from me saying that they will be all right. I'm just saying that that looks a perfectly reasonable approach. I think it's been properly analysed by your expert witness on the subject, I've got no qualms about that.

I'm just going to reverse it to satisfy your professional negligence obligations, you're not saying there's an unacceptable risk, are you?---That's right.

And can we just say, as far as you're concerned, it's not an issue that need trouble the tribunal?---That's what I've tried to say, yes.

27 The Council made no attempt to clarify Dr Lorimer's evidence in re-examination or in submissions. It tendered the 2009 audit and expressed no misgivings about its contents. The 2009 audit concludes that best practice management and ongoing monitoring will be adequate to ensure that the risk of gas migration remains acceptably low into the future.

28 The question of the Council's position on gas migration arose again later in the hearing. After counsel for the Council, Mr Peake, referred to the 2008 Brookland Greens gas migration incident, the following discussion ensued:

MR TWEEDIE: I'm just confused about the reference to the experience in Stevensons Road. Mr Peake, as I understood it, had abandoned the part of his case which related to landfill gas and likewise.

MR PEAKE: To methane.

MR TWEEDIE: Yes, methane. Stevensons Road is all about methane gas migration. What is the relevance of that proposal? Why are we saying that this has got something to do with Stevensons Road? I just want to make sure the concession is - - -

MR PEAKE: No, no, the concession is not being eroded, Mr Tweedie. I'm simply indicating that it is Stevensons Road, that it is [sic] to some extent focused minds on this issue. The fact that the landfill buffer was changed in 2004 largely seems to have slipped through the system without really being noticed and attended to. Stevensons Road has focused attention on the potential impacts of landfills. We're not going anywhere else on the methane, it's simply that it's a landfill case, it's a high profile case, it has a particular problem and there may be others on development. We accept that Stevensons Road was a special case. It was a completed, filled, capped landfill where something went wrong. But it has highlighted the fact that there is a reason why the needs of this case, (indistinct) to reduce buffers.

29 The respondent also points to the fact that when taking the Tribunal through its written submissions, the Council skipped over the paragraphs concerning gas migration, and that it appeared to specifically disavow reliance on paragraph 8.4(2) of its submissions, which stated that the subject land should not be redeveloped for residential subdivision unless it was demonstrated by rigorous scientific analysis that the land would not now or in the next 60 to 70 years be affected by landfill gas migration.[14]

30 Furthermore, the respondent says that it called its own expert, Mr Bajwa, to explain why the 500 metre buffer distance could be reduced in this case. Counsel for the respondent, after asking Mr Bajwa to adopt his witness statement, said: "I'm happy to say that everyone appears to be in furious agreement on the issues of landfill gas migration now, so I'm not going to ask you any questions about that." The Council did not question this statement and did not cross examine Mr Bajwa on gas migration.

31 Finally, the respondent refers to the many occasions it submitted - in writing and orally - without challenge, that the Council had abandoned the part of its case that dealt with landfill gas migration.

32 The Council accepts that its case was that there was no current unreasonable risk of gas migration, but denies that it abandoned the issue of gas migration entirely. It points to submissions it made in closing which indicate a continuing concern as a result of future uncertainties:

MR PEAKE: ... Ultimately we accept, sir, that there are conflicting policy outcomes that need to be resolved in the interest of (indistinct)[15] benefit. The council only say that its position, that it is not satisfied on the material tendered that it would be appropriate to vary the separation distance (indistinct)[16] best practice environmental management Guidelines. Mr Tweedie is correct, sir, we are pretty sensitive about this at the moment. We are sensitive about it because the best expert evidence available said that Stevensons Road would not be a problem and history has proven that to be significantly incorrect. This landfill will be an active landfill in the sense that it will be generating landfill gas something in the vicinity of 50 to 70 years. Landfill gas migration is an issue that's only very recently arisen. The council remains concerned that whilst the testing might show that it's not migrating from the site at the moment this is a sand pit exactly the same as Stevensons Road was, the question is whether the tribunal is satisfied that it won't occur during the life of the landfill.

33 The respondent immediately took issue with the proposition that gas migration remained in issue, but the question was left hanging:

MR TWEEDIE: Hang on, Mr Peake conceded during the council's submissions that they didn't have a problem with landfill gas migration, that was a part of the reason why I didn't lead evidence from Mr Bajwa on the issue so you can't - it's not a problem now and it's not a problem in the next 60 or 70 years it would be not fair for you to proceed on the basis that the council suggests there's any doubt about that issue whatsoever.

MEMBER: All right, well let's move onto conditions shall we? What do you want to do - - -

34 Whether the risk of gas migration remained a live issue was apparently left open at that point. The Tribunal plainly thought the question remained open: the first question it considered was whether the land was adversely affected by gas migration and, in the paragraph of its reasons that is the subject of the present ground of appeal, recognised that "Council maintained its objection to the proposed subdivision of the review site because of the risks of landfill gas migration".[17]

35 Although this conclusion is not entirely consistent with what emerges from the foregoing 'tour' through the transcript of the hearing, there is certainly room for doubt, particularly in relation to long term risk. As the Council submitted in argument, a concession that a landfill that was proposed to operate for another 30 or 40 years would not create any problems of the kind that occurred at Stevensons Road would be "a rather courageous concession". In the circumstances, the Tribunal correctly treated the question of landfill gas migration as remaining open.

36 Accordingly, I cannot conclude that there is no practical injustice to the Council arising by reason of the denial of an opportunity to be heard on the Ombudsman's Report.

37 Ground 1 is made out. The proceeding must be remitted to the Tribunal in order to give the parties an opportunity to make submissions on how the Tribunal should treat the Ombudsman's Report when considering the question of landfill gas migration.

38 This ground is closely related to the arguments advanced in relation to natural justice and the use of the Ombudsman's Report. The Council contends that the Tribunal failed to give reasons which disclose the path of reasoning leading to the conclusion that "the SITA landfill site involves a different set of circumstances to those at Stevensons Road", and that the subject land "will not be affected by gas migration in the way that the Brookland Greens Estate was affected".[18]

39 Little turns on this ground, given that Ground 1 has been made out and the Tribunal will be required to hear and consider submissions from the parties on the Ombudsman's Report. Attention to those submissions will no doubt be given in the Tribunal's revised reasons.

40 The Tribunal's reasons do not properly elucidate why it found that the subject land would not be affected by gas migration in the way that the Brookland Greens Estate was affected. There could be no doubt, however, as to why the Tribunal formed the view that the risk of gas migration from the SITA landfill ought not to stand in the way of the grant of a permit. The 2009 audit and the expert evidence was capable of supporting such a finding.

41 Failure to spell out why it found that the subject land would not be affected by gas migration in the way that the Brookland Greens Estate was affected was not, in my view, a vitiating error. Ground 2 is not made out.

42 The sixth question of law is whether the Tribunal appropriately applied the provisions of the BPEM Guidelines as they relate to a reduction in buffer distances from landfill sites.

43 The BPEM Guidelines contain a recommended buffer distance of 500 metres between a type 2 landfill site, like the SITA landfill, and a dwelling. They state that lesser buffer distances may be applied "subject to a risk assessment that considers design and operational measures".[19] The Tribunal accepted that it should be guided as to buffer distance by, among other things, the BPEM Guidelines. Ultimately, however, the Tribunal concluded that a reduction in the buffer distance was appropriate in this case.

44 It was common ground that all but one of the tipping cells in the SITA landfill were more than 500 meters from the nearest of the proposed dwellings. The remaining cell - 'Cell 16' - was anticipated to be filled in about 2023-2024. The Council's expert witness, Dr Lorimer, suggested that at its closest point, Cell 16 would be 220 metres from the nearest residence, with the tipping face 305 metres away. The respondent's witness, Mr Pollock, suggested a distance in excess of 320 metres. The Tribunal made its own calculation and calculated the distance at approximately 360 metres.[20]

45 In considering how the SITA landfill will operate in the future,[21] the Tribunal was referred to the recent approval of the 'SITA Advanced Waste Treatment' ('SAWT') facility, which will divide incoming municipal solid waste into recoverable solid waste and green/putrescible waste. Recoverable waste will be transported off-site, while green waste and putrescible waste will be composted in the SAWT facility. The Tribunal heard expert evidence from Mr Pollock in support of a reduced separation distance to Cell 16 on the basis that the SAWT facility would have a significant impact on the type of material sent to landfill in the future. Mr Pollock produced a linear scale which took into account a much reduced municipal sold waste stream going into the SITA landfill and, on this basis, argued that a buffer distance of 320 metres from Cell 16 would be acceptable. The Tribunal accepted as a matter of logic the proposition that buffer distances for the SITA landfill would be a function of throughput, feed stock accepted and composting processes used. It concluded that a minimum buffer distance of 320 metres to the nearest active landfill cell was an acceptable buffer distance.

46 The Council submits that in departing from the recommended distance in the BPEM Guidelines, the Tribunal:

(a) failed to take into account the methodology recommended in the BPEM Guidelines including a risk assessment;

(b) took into account:

(i) a linear scale proposed by an expert witness (based on proportional-distance approach in the EPA composting guidelines, which were not relevant), in preference to the fixed-distance approach in the BPEM Guidelines;

(ii) the hypothesis of an expert witness as to future conduct of the landfill operators; and

(iii) encouragement as to future behaviour; or

(c) acted manifestly unreasonably by, on the one hand, purporting to adopt the buffer distances in the BPEM Guidelines and, on the other, rejecting the methodology identified in those Guidelines, instead adopting wholesale a recommendation based on extraneous considerations.

47 In short, the Council says that the Tribunal erred in allowing a residential development within less than 500 metres of the SITA landfill without a 'risk assessment' as required by the BPEM Guidelines.

48 The BPEM Guidelines are expressed to apply to landfill operators and those seeking to establish landfills. The foreword states:

This document should be used in the planning for works approval or licensing of future landfill sites. It also applies, where appropriate, to existing licensed sites.

49 The BPEM Guidelines are expressed to give "direction on the best practice siting, design, performance and rehabilitation standards for landfills commensurate with the risk they pose to the environment", and to provide "a guide for the measures required to meet legislative objectives" and "a framework of environmental management objectives, required outcomes and suggested measures that may be used to achieve or surpass the objectives, encouraging innovative solutions rather than regulatory control".[22] While the objectives and required outcomes of the Guidelines are mandatory, the suggested measures are "the default means of achieving the required outcomes, and while strong arguments are required to implement alternatives, the suggested measures are not mandatory".[23]

50 Unsurprisingly, the BPEM Guidelines state that an adequate separation or buffer distance should be maintained between the landfill and sensitive land uses, including dwellings. Buffer areas are not an alternative to providing appropriate management practices, but provide for contingencies that may arise with typical management practices. Where the buffer is not available, management practices need to be significantly increased to provide the same level of protection to sensitive land uses.

51 The BPEM Guidelines set out in tabular form recommended buffer distances, including the 500 metre buffer to dwellings for type 2 landfill sites that is relevant in this case. The Guidelines then provide for reduced buffer distances as follows:

These buffer distances are based on the buffer distances contained within SEPP (Siting and Management of Landfills Receiving Municipal Wastes), with some buffer distances recommended to be greater than the minima contained in the SEPP in order to reflect best practise in landfill siting and EPA's experiences with odour problems in landfills. Subject to an evaluation demonstrating that the environment will be protected and the amenity of the sensitive areas will not be adversely affected, lesser buffer distances may be applied subject to a risk assessment that considers design and operational measures. As part of a risk management approach, additional design or operational measures will be required to ameliorate the risks associated with a reduction of the buffer distances identified in [table 2].[24]

52 In my view, when read in the context of the Guidelines as a whole and particularly the passages referred to above, a risk assessment that considers 'design and operational measures' is plainly one that is intended to be undertaken by the landfill operator, for it is the design and operation of the landfill that is to be considered. Moreover, the BPEM Guidelines recommend the methodology of risk assessment, but do not make it mandatory.

53 Accordingly, compliance with BPEM Guidelines by the respondent was not a precondition to the grant of a permit. The BPEM Guidelines were relevant to determining whether the policy in clause 15.04-2 of the Casey Planning Scheme that there be a "suitable separation between potentially amenity reducing and sensitive land uses and developments" was satisfied. The BPEM Guidelines were required to be and were considered by the Tribunal in this context.

54 The Tribunal's ultimate finding was that "[b]ased on the material that has been presented to us we are satisfied that the SITA landfill will not adversely impact on the proposed residential lots".[25] This finding is sufficient to permit the approval of the development, even though the recommended buffer distance in the BPEM Guidelines was not met with regard to Cell 16. The Tribunal accepted the expert evidence of Mr Pollock, including his support for the reduced separation distance to Cell 16. It accepted as logical his thesis that a reduced municipal solid waste stream could lead to a reduction in offsite impacts, particularly odours, and that a linear scale could be used to determine how the recommended buffer might be reduced. The Tribunal, as a tribunal with special expertise in these matters, came to these conclusions based on the evidence of an expert witness that it accepted.

55 The Council's case before the Tribunal was that the material which was produced by the respondent in support of the reduction was not sufficient to justify the reduction sought. The Tribunal found, as a matter of fact, that this was not the case. The Council's written submissions to the Tribunal were that the recommended buffer could be varied and that if it was to be varied, what was required was "an evaluation that demonstrates that the environment would be protected and the amenity of sensitive areas will not be adversely affected by the reduction of the buffer distance." The Council further submitted that "a soundly based scientific assessment", alternatively, a "rigorous scientific analysis" would justify the reduction of the buffer distance. In my view, it was open to the Tribunal to depart from the recommended buffer distance in light of the evidence before it.

56 The contention that the Tribunal erred in departing from the recommended buffer distance in the BPEM Guidelines is not made out. Ground 6 must fail.

57 Grounds 7 and 8 concern Conditions 3 and 27 respectively. The Council submits that both permit conditions exceed the scope of the Tribunal's power to include conditions on a planning permit, which is conferred by s 62 of the Act.

58 Section 62(2) provides that a responsible authority (which includes the Tribunal on review) can impose "any other condition that it thinks fit" when deciding to grant a permit. However, it is well settled that the discretion to impose conditions is not absolute. A power must be construed as extending to the purpose for which it is conferred. For a planning permit condition to be valid it must be reasonably capable of being related to the implementation of planning policy, as ascertained from the relevant planning legislation and the relevant planning scheme.[26] Plainly, a planning permit condition cannot be imposed for an ulterior or extraneous purpose.

59 Each of Conditions 3 and 27 is challenged on the basis that it was not authorised by s 62. It is submitted that it was not open to the Tribunal under s 62 of the Act to impose Condition 3, which may or may not be fulfilled, in order to satisfy itself of the amenity of the area, as required by clause 65 of the Casey Planning Scheme. Likewise, it is contended that it was impermissible for the Tribunal to seek to abrogate its responsibility to satisfy itself as to amenity by means of Condition 27.

60 Condition 3 is directed to securing the amenity of the eastern residential lots, notwithstanding the noise emanating from the concrete batching plant, and is in the following form:

No certificates or statements of compliance incorporating Lots 9 to 23 of the subdivision under the Subdivision Act 1998, must be issued until an acoustic barrier has been constructed so that noise levels from the concrete batching plant and received at the proposed lots achieve the following noise limits to the satisfaction of the Responsible Authority (55 dB (A) day period, 49 dB (A) evening period and 44 dB (A) night period).

61 In substance, the Tribunal sought to ensure that a noise barrier would be constructed between the proposed dwellings and the concrete batching plant. The site for the noise barrier is identified in the Tribunal's reasons as an embankment on the land occupied by the concrete batching plant.

62 The proximity of the development to the concrete batching plant caused the Tribunal considerable disquiet. Having heard expert evidence from Mr Clarey for the respondent and Dr Lorimer for the Council in relation to dust and odours from the concrete batching plant, the Tribunal concluded that the eastern lots of the proposed subdivision were 'on the cusp of being acceptable/unacceptable' in relation to the adverse effects of dust. The Tribunal stated that, having regard to the evidence of Mr Clarey and Dr Lorimer, it was not prepared to approve a situation where complaints and conflict were likely to occur with unacceptable frequency. It then said:

Although as we next discuss, acoustic impacts are not insurmountable and not a reason to modify or refused (sic) the subdivision, achievement of the essential acoustic treatments recommended by Mr Burton has caused us to hesitate in approving the entire subdivision shown on the substituted plans. In our view the eastern most lots, and the dwellings on them and the residents living there, should not be approved at this stage. We discuss this timing or staging approach later in our reasons. [27]

63 The Tribunal then turned to the noise impacts of the concrete batching plant. The only evidence before the Tribunal on this issue was that of Mr Burton, an acoustic consultant, who was called by the Council. Based on Mr Burton's evidence, the Tribunal produced a table indicating whether noise levels from the concrete batching plant were acceptable during the day and at night for each of Lots 1 to 8, Lots 4 to 8, Lots 9 to 12 and Lots 13 and 23. As a result of this exercise, the Tribunal concluded that the provision of appropriate acoustic barriers and treatments was an essential prerequisite for residential development on the lots. It stated that "[a]chieving acceptable noise levels is highly dependent on construction of an appropriate barrier on top of the embankment separating the review site from the concrete batching plant or acoustic treatments to future dwellings".[28] Of these two options, the Tribunal expressed a preference for the construction of a barrier, as it would reduce noise levels for the whole area of each lot and not just within the dwellings. The site for the barrier identified in the Tribunal's reasons was an embankment between the plant and the nearest dwellings.[29] However, the Tribunal observed:

Unfortunately the embankment is outside the review site and any barrier will need to be constructed by, and with the agreement of, the owners/operators of the concrete batching plant. We agree with Mr Tweedie [counsel for the respondent] that it is reasonable that the permit applicant contribute to the cost of such a barrier but we cannot require it as part of this approval. It is critical that it be built before subdivision takes place for Lots 9 to 23. At present we have no guarantees or certainty about how or when the barrier will be constructed and therefore we are not prepared to approve the lots at the eastern end of the subdivision until such time as a suitable barrier has been constructed and noise levels reduced to an acceptable level.[30]

64 As a result of the difficulty associated with the construction of an acoustic barrier on the embankment, the Tribunal concluded that it could approve the subdivision as proposed but with permit conditions preventing subdivision certificates being issued until construction of a noise barrier to satisfy noise limits, or only approve the western lots unaffected by noise (Lots 1 to 8) and delete the remaining lots because of unsatisfactory noise impact.

65 The Tribunal said that it remained "unconvinced" about allowing the full subdivision because the concrete batching plant had the potential to cause unacceptable impacts on the amenity of future residents living in dwellings on the eastern lots and described the construction of an acoustic barrier as "absolutely critical". However, it said that it had no confidence as to how and when the barrier would be provided. It concluded, "We are not prepared to 'wing it' on the basis of good intentions."[31]

66 Condition 3 is an attempt to deal with this concern. Construed in the context of the Tribunal's reasons, Condition 3 attempts to secure the construction of the barrier on neighbouring land (the concrete batching plant). It does so by purporting to restrict Council's ability to certify the plan of subdivision, which is a function of the Council under the Subdivision Act 1988 (Vic).

67 The Council contends that Condition 3 is invalid because it is incompatible with the Council's obligations under the Subdivision Act. The certification of a plan of subdivision is provided for by s 6(1) of that Act, which requires the Council to certify a plan if the matters described in paragraphs (a)-(k) have been satisfied. Condition 3 purports to restrain the Council from certifying a plan of subdivision in circumstances where s 6(1) of the Subdivision Act may require the Council to certify the plan. Furthermore, the Council contends that Condition 3 is uncertain because its satisfaction is contingent on the agreement of a third party (the owners of the land occupied by the concrete batching plant).

68 Section 6(1)(a) of the Subdivision Act relevantly provides that a Council must certify a plan within the prescribed time if, amongst other things, "the plan complies with this Act, the regulations, and those requirements of the planning scheme and any permit that relate to the boundaries of roads, lots, common property and reserves and the form and content of the plan". The Council submits that satisfaction of a condition attached to a planning permit which does not relate to the boundaries of roads, lots, common property and reserves or the form and content of the plan is not included within the matters in s 6(1). Accordingly, the failure to construct an acoustic barrier in accordance with Condition 3 is not something that could qualify the Council's obligation to certify the plan of subdivision under s 6(1). Generally, so the Council says, the construction of works (other than public works) on land not within the plan area falls outside the considerations for certification of a plan. As a result, the Council will be bound to certify any subdivision plan submitted by the respondent if the matters in (a)-(k) are satisfied, whether or not an acoustic barrier has been constructed.

69 The respondent submits that there is no inconsistency between the criteria in s 6(1) of the Subdivision Act for certification of a plan of subdivision and the additional condition sought to be imposed by Condition 3. Drawing on the principle that the Court should aim to arrive at a construction of provisions in legislation which assumes that Parliament intended its legislation to operate harmoniously,[32] the respondent submits that "[i]t is rational, efficient and just to allow for conditions which are necessary to achieve a legitimate planning outcome to be imposed on subdivision permits". It describes the Act and the Subdivision Act as "complementary or cognate legislation" which are "intended to be part of an overall scheme and to work together and complement each other", to the extent of empowering conditions to be made under s 62 of the Act which affect rights or obligations under the Subdivision Act.

70 Further, the respondent submits that Condition 3 does not in terms require the acoustic barrier to be constructed on the concrete batching plant land. It says that the Tribunal identified the embankment just inside the boundary of the concrete batching plant land as the ideal location for an acoustic barrier because a barrier constructed on the embankment would not need to be as high as any barrier constructed on the subject land (which would need to be constructed to the full height of six metres). The respondent submits that what is required of it by Condition 3 is to arrange for the barrier to be constructed by whatever means available - in practical terms, to attempt to come to an arrangement with the owners of the concrete batching plant or, if unsuccessful, to build a six metre barrier on the subject land. Condition 3 is not intended to be enforceable against or to impose any requirements upon a third party.

71 To this last point, the Council submits that the Tribunal proceeded on the basis that a three metre barrier on the embankment would be effective, but did not and could not find on the evidence before it that a six metre barrier on the subject land would also be effective because that solution was not seriously canvassed or made the subject of evidence at the hearing.

72 Condition 3 is in an unusual form, in that it is principally directed to the Council - the Council must not issue 'certificates or statements of compliance' under the Subdivision Act unless an appropriate acoustic barrier is in place at the relevant time. I agree with the Council that Condition 3 purports to impose a restriction on it that is not consistent with its obligation to certify a plan of subdivision under s 6(1) of the Subdivision Act. Compliance with a permit condition requiring the construction of an acoustic barrier falls outside the matters referred to s 6(1) of the Subdivision Act and the Council will be required to certify the plan of subdivision if the relevant matters in s 6(1) have been satisfied, whether or not the barrier has been constructed.

73 In my view, in purporting to constrain the Council in this manner, Condition 3 is ineffective - it cannot prevent the certification of a plan of subdivision for the subject land (including lots 9 to 23) if an acoustic barrier is not constructed. Insofar as it is necessary to construe the power in s 62 of the Act to impose conditions 'harmoniously' with the requirement in s 6(1) of the Subdivision Act, s 62 does not authorise the making of a condition in the form of Condition 3.

74 Although Condition 3 does not specify where the barrier is to be constructed, it is clear from both the Tribunal's reasons and the form of condition 3 that the Tribunal envisaged that the acoustic barrier would be constructed on third party land. The Tribunal did not, and could not, provide for the construction of the barrier to be undertaken in accordance with the conventional approach of an agreement under s 173 of the Act, because the permit could not compel the relevant landowner to do anything. This, as the Council correctly submits, makes Condition 3 uncertain.

75 Condition 3 was critical to the Tribunal's decision to grant a permit.[33] As the permit would not have been granted without Condition 3, it is not possible to sever Condition 3 from the permit. So much was conceded by the respondent. The error is therefore a vitiating error.

76 The respondent submits that the Court should use its power under s 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 to amend Condition 3. The respondent proposes, for example, changing the opening words of Condition 3 to read:

Prior to the commencement of any works required for the approved subdivision, an acoustic barrier must be constructed so that noise levels ...

77 A condition in that form would not suffer from the difficulty that it prevented the Council from doing something that it might otherwise be required by law to do. Nonetheless, the Court is not prepared to take on the role of drafting an appropriate permit condition, given its imperfect understanding of the evidence about the noise impacts of the concrete batching plant and how best to contain them.[34] Further, there remains the challenge of drafting the condition in a way that ensures that the acoustic barrier remains in place after the commencement of the works.

78 As a result of the natural justice requirements identified in relation to Ground 1, the proceeding must be remitted to the Tribunal in any event. The proceeding should be remitted back to the same Tribunal, if possible, to consider whether Condition 3 can be amended or replaced with a condition that achieves the objective of containing noise impacts from the concrete batching plant.

79 Condition 27 requires the owner to enter into an agreement under s 173 of the Act which includes an acknowledgment by owners that:

(i) the property is located within a putrescible landfill and concrete batching plant buffer area;

(ii) the landfill and concrete batching plant uses are entitled to continue operating provided they are in accordance with the relevant approvals and permits as well as the relevant EPA standards and policies;

(iii) the landfill and concrete batching plant uses are intended to continue into the future;

(iv) all dwellings within the subdivision must be designed and constructed to achieve compliance with AS/NZS 2107:2000 Acoustics - Recommended Design Sound Levels and Reverberation Items for Building Interiors.

80 The Council submits that Condition 27 amounts to a requirement that the owners of the land accept an unreasonable impact on their amenity. It submits that it was impermissible for the Tribunal to abrogate its responsibility under clause 65 of the Casey Planning Scheme to decide whether the proposal would produce acceptable outcomes having regard to the amenity of the area.

81 This ground is made out. In my view, Condition 27 is not authorised by the Act as being reasonably capable of being related to the implementation of planning policy and is ineffective, at least insofar as it requires land owners to 'acknowledge', and thereby to accept, adverse impacts on the amenity of their land.

82 However, I am satisfied that the error arising from the imposition of Condition 27 can be remedied by severing it from the permit. I accept the respondent's submission that Condition 27 was included as 'belts and braces', and is not an essential element of the decision.

83 Condition 27 ought to be removed from the permit.

84 The appeal is allowed. The Tribunal's decision will be set aside and the proceeding remitted to the Tribunal to be determined according to law.

85 Given the nature of the errors identified, it may be possible for the Tribunal to determine the proceeding without the need to re-hear the evidence or hear further evidence. Accordingly, if possible, the proceeding should be remitted to the same Tribunal to give the parties an opportunity to be heard on the Ombudsman's Report and for the Tribunal to consider whether an appropriate condition can be formulated to enable it to be satisfied as to amenity, having regard to the noise generated by the concrete batching plant.

[1] Ombudsman, Brookland Greens Estate - Investigation into methane gas leaks, October 2009.

[2] Seventh Day Adventist Church v Casey CC [2009] VCAT 2763 ('Reasons') [6].

[5] Environment Protection Authority guideline, Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills.

[11] Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, 13-14.

[12] The Council has identified a number of parts of the Ombudsman's 289 page report which it says were relevant to the matters in issue in the review application before the Tribunal.

a) the Ombudsman stated that relevant documents, including the BPEM Guidelines, failed to 'clearly articulate how the buffer distance from a landfill is measured and should be revised to provide greater clarity and guidance'; 204 [1127]

b) the Ombudsman stated that 'there is no specific reference to a buffer being required to protect nearby land users against the risk of explosion or health issues arising from exposure to landfill gas containing methane. I consider this a major shortcoming which needs to be addressed'; 204 [1128]

c) the Ombudsman noted that the EPA had agreed to amend the BPEM Guidelines to address this issue;

d) the Ombudsman noted the 2004 increase from 200 to 500 metres of the buffer distance in the Waste Management Policy; 203 [1125]; see also 165[903].

e) the Ombudsman made a specific recommendation that Casey provide greater clarity in the applicable development plan as to when a buffer reduction could be considered and how it should take place; 207 [Recommendation 51]

f) the Ombudsman criticised Casey and its legal representatives; 197-8 [1088]-[1095], 200 [1108], 201-3 [1112]-[1123], 204 [1130]-[1132]

g) the Ombudsman stated that '[e]xperts estimate that landfill gas must be monitored and managed for around thirty years after the landfill's closure and it is not uncommon for experts to speculate on the effects a landfill may continue to have on the environment for up to five hundred years'; 33 [164]

h) the Ombudsman made numerous findings, comments and recommendations throughout the report about the circumstances surrounding the Brookland Greens site and subsequent events; and

i) the Ombudsman relied on information ascertained from documents, interview and opinion throughout the report.

The Council acknowledges that some of these matters appear to support its submissions to the Tribunal about gas migration, but contends that 'others, perhaps, had an adverse effect.' It says that it cannot know which parts of the Ombudsman's Report the Tribunal read, which parts it took into account and how it used those parts in reaching its decision.

[13] See Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57; (2000) 204 CLR 82, 122 (citing Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145); Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514-22.

[14] The transcript is not clear on this point:

"Accordingly the subject land should not be redeveloped for residential subdivision until it is demonstrated by rigorous, scientific analysis that the buffer distance from the landfill then [sic] be reduced without the land being subject to an unacceptable load of impacts, and that as we say, sir, without acquiring Paragraph 2."

Counsel before me suggested that the word 'acquiring' may have been an incorrect transcription of the word 'requiring'.

[15] Counsel for the Council before me referred to the indistinct words as 'net community'.

[16] Counsel for the Council before me referred to the indistinct words as 'in the'.

[21] In particular, in about 2023-2024 when the north west corner of Cell 16 is anticipated to be filled.

[26] William Street Pty Ltd v City of Melbourne [1975] VicRp 15; [1975] VR 156, 162 (citing Allen Commercial Constructions Pty Ltd v The Council of the Municipality of North Sydney [1970] HCA 42; (1970) 123 CLR 490, 499); Chrichton v City of Moorabbin [1992] VicRp 69; [1992] 2 VR 372, 375-6; Roads Corporation v McCarthy [2004] VSC 369; (2004) 137 LGERA 433, 448.

[32] Commissioner of Stamp Duties v Permanent Trustee Company Ltd (1987) 9 NSWLR 719, 723-4 (Kirby P), cited with approval in Maroondah City Council v Fletcher [2009] VSCA 250, [85].

[33] The Tribunal considered noise protection to be critical if all of the lots were to be developed:

It is evident [...] that provision of appropriate acoustic barriers and treatments is an essential prerequisite for residential development on these lots. Achieving acceptable noise levels is highly dependent on construction of an appropriate barrier on top of the embankment separating the review site from the concrete batching plant or acoustic treatments to future dwellings. Of the two options we favour the construction of a barrier as it reduces noise levels for the whole area of each lot not just within dwellings. Given that these are relatively small lots we consider it desirable that future residents can be outside or can open windows without suffering unreasonable noise impacts. Acoustic attenuation to the dwellings alone would not provide this flexibility or what we consider to be a reasonable level of residential amenity. (Reasons [24])

[34] The High Court has recently warned against the Court deciding an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act making the essentially factual, evaluative and ministerial judgments that the legislature has given to the Tribunal to make: Osland v Secretary to the Department of Justice [2010] HCA 24; (2010) 267 ALR 231, 239 (French CJ, Gummow and Bell JJ).