Victorian Civil and Administrative Tribunal|2010-06-10

CMA Corporation Pty Ltd v Maroondah CC [2010] VCAT 660 (10 June 2010)

59-61, 73-79 and 3/81-85 Heatherdale Road, Ringwood

CMA Corporation Pty Ltd v Maroondah CC [2010] VCAT 660

Monday to Friday 7.00 am - 6.00 pm
Saturday and Public Holidays except for Good Friday, Anzac Day and Christmas Day 8.00 am - 1.00 pm
Sundays, Good Friday, Anzac Day and Christmas Day - Nil

Monday to Friday 8 am - 5 pm
Saturday 9 am - 4 pm
Sunday 10 am - 4 pm

(b) deliveries, loading and unloading of vehicles, cleaning and maintenance may be carried out on the CMA Reycling site between the following additional hours:

Monday to Friday 6 pm - 10 pm

Saturday and Public Holidays except for Good Friday, Anzac Day and Christmas Day 1 pm - 5 pm

Sundays, Good Friday, Anzac Day and Christmas Day - Nil

subject to and in accordance with the conditions and requirements of the Noise Management Plan approved under condition 9;

(c) notations to indicate that other than vehicles accessing the Pick, Pay and Go site, the northern Heatherdale Road access is only be used between the hours approved pursuant to condition 3(a); and

(d) notations to indicate monitoring of the Meretec plan is permitted at all hours subject to any conditions and requirements set out in the Noise Management Plan approved under condition 9.

Noise levels emanating from the land must not exceed the maximum levels specified by the relevant EPA regulations including, in particular, the State Environment Protection Policy

Control of Noise from Commerce, Industry and Trade) No. N-1 (SEPP N-1). 2. The amenity of the area must not be unreasonably affected by the use or development through the: * (a) transport of materials, goods or commodities to or from the land; * (b) appearance of any building, works or materials; * (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil; or * (d) presence of vermin. 3. Except with the further consent of the responsible authority no external sound amplification equipment or loud speakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purposes, 4. Except with the further written consent of the responsible authority no security alarm or similar device is to be used on any part of any existing or proposed building situated on the land unless it is of a silent type approved by the Standards Association of Australia and connected to a registered security firm, 5. The loading and unloading of goods from vehicles must only be carried out on the land. 6. Within three months of 10 June 2010 a Noise Management Plan must be submitted for approval by the responsible authority demonstrating that: * (a) all noise generated by fixed plant and machinery in the CMA operation complies with relevant EPA noise regulations; * (b) all other noise associated with the CMA operations, including vehicle movements, truck beepers, movement of scrap metal and metal storage bins, within and to and from the site will not unreasonably affect the amenity of the area; * (c) locations specified and methods used for deliveries, loading and unloading for any approved hours beyond the CMA Recycling Operations hours of operation in condition 3(a) will not result in unreasonable amenity effects to the area; * (d) any noise associated with the monitoring of the Meretec plant during the night period will not exceed a noise limit to the satisfaction of the responsible authority with the objective that no residential amenity is unreasonably disturbed; and * (e) any alarms on the land will not unreasonably affect the amenity of residential areas.

Once approved and endorsed the Noise Management Plan will form part of the endorsed plans in relation to this permit. The approved Noise Management Plan may be amended to the satisfaction of the responsible authority.

The plan must be reviewed to the satisfaction of the responsible authority every 12 months by a suitably qualified person, and if necessary amended to ensure that it remains relevant and that the specified limits will continue to be achieved.

Within three months of 10 June 2010 a lighting management plan must be submitted for approval by the responsible authority demonstrating that all outdoor lighting is designed, baffled and located to prevent any adverse affect to properties beyond the site. Once approved and endorsed accordingly the lighting management plan will form part of the endorsed plans in relation to this permit.
Within three months of 10 June 2010 a dust management plan must be submitted for approval by the responsible authority detailing measures to ensure that the amenity of the area is not unreasonably affected due to the generation of dust. Once approved and endorsed accordingly the dust management plan will form part of the endorsed plans in relation to this permit.
Within three months of 10 June 2010 a combustible dust management plan must be submitted for approval by the responsible authority detailing measures to ensure that the operations will not cause an undue danger to the area. Once approved and endorsed accordingly the combustible dust management plan will form part of the endorsed plans in relation to this permit.
Within three months of 10 June 2010 the permit holder must provide to the responsible authority a written complaints procedure for dealing with complaints for approval. Once approved and endorsed accordingly the written complaints procedures will form part of the endorsed plans in relation to this permit.
Except in an emergency air exhaust brakes must not be used by trucks under the control of the permit holder on Heatherdale Road.
Subject to Worksafe approval, broadband reversing beepers are to be fitted to all trucks on the site and are to be utilised while trucks are on the site.
Subject to Worksafe approved, broadband reversing beepers are to be fitted to all mobile equipment used on site such as loaders.
No vehicle, or part thereof, is to be washed other than in a washing bay approved by the responsible authority.
This permit will expire if one of the following applies:
- the development and use is/are not started within two years of 10 June 2010;
- the development is not completed within four years of 10 June 2010;
- any use hereby permitted is discontinued for a period of two years.

the responsible authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

Mr G Garde QC, barrister, appeared with Mr M Tweedie, barrister, on the instructions of Minter Ellison solicitors for the applicant company CMA Pty Ltd. They made oral submissions.

Mr C Townshend SC, barrister, appeared with Mr P O'Farrell, barrister, on the instruction of Maddocks solicitors for the responsible authority. They presented written and oral submissions.

Ms Juliet Forsyth, barrister, appeared on the instructions of Norton Rose solicitors for the Whitehorse City Council. She presented oral submissions speaking to a series of powerpoint slides and written script thereof.

Ms Elwynne M Kift, objector, appeared in person and presented written and oral submissions together with a witness statement of her own and witness statements of Penelope Crossman, Peter Hair and a written submission of DF Burley. Ms Kathleen Chapman also appeared but deferred to Ms Kift.

Mr Helmut Tracksdorf, objector, appeared and presented written and oral submissions.

Mr David Deller, barrister, appeared on the instructions of the solicitor to the Environment Protection Authority for that authority.

Application under s 80 of the Planning and Environment Act 1987 for review of conditions in a permit.

Use of land for industry (resource recovery facility) including industry (materials recycling), industry (refuse transfer station) and industry (motor vehicle salvage yard) and retail sale of used car parts including use of land within 30 metres of a Residential 1 Zone for industry (not including materials recycling), accessways to and from the land and for buildings and works with a waiver of car parking.

Industrial 1 Zone under the Maroondah Planning Scheme

An application was made on behalf of the applicant company to amend the application for review. The application for review had an attachment A showing the permit as issued by the responsible authority and an attachment B setting out the set of conditions sought by the company incorporating the alterations to the original conditions that it was seeking to have reviewed. The application was to substitute the contents of a draft planning permit headed AMENDED PLANNING PERMIT (Version 31 May 2010) for attachment B. At the time, reference was made to attachment A, but it appears to us that this was a slip and this document is intended, by the amendment, to replace attachment B. This amendment was granted by consent.

Maroondah CC v CMA Recycling Victoria Pty Ltd - P2973/2008

This is a review of conditions in a permit. The applicant for review is CMA Corporation Pty Ltd (CMA). In addition to the responsible authority there are several other respondents who are objectors. These include the council of the City of Whitehorse, which is an adjoining municipality to the City of Maroondah. The Environment Protection Authority (EPA) was also represented at the hearing before us.
The case concerns a substantial parcel of land used for industrial purposes by CMA in Ringwood on the eastern boundary of Maroondah with Whitehorse. The property has vehicle access to the eastern side of Heatherdale Road (which runs north to south), and the western segment of Palmerston Road (which runs east to west).
Heatherdale Road is the municipal boundary between Maroondah and Whitehorse. The site is located in the strip of land between the new Eastlink /Scoresby Freeway to its east and Heatherdale Road to its west.
The majority of the site is within an Industrial 1 Zone. There is a strip of Residential 1 Zoned land down the eastern side of Heatherdale Road. The CMA site includes a portion of this Residential 1 Zone land, which has to be crossed to gain access between Heatherdale Road and the main portion of the site.
On the western (Whitehorse) side of Heatherdale Road there is a substantial tract of Residential 1 Zone land, which is used for residential purposes and contains the homes of the majority of the objectors.
For many years, a variety of industrial activities have been carried out on the land by CMA. These activities centre upon metal recovery. They include the separating and shredding for recycling of otherwise waste metal of various sorts. There is a "Meretec" plant on the site, which recovers zinc and other material by removing and recovering coatings from metals before they are shredded. The business also includes the wrecking of cars whereby a substantial number of old vehicles are retained on the property so that customers seeking second hand parts can locate them, remove them from the wrecked vehicles and purchase them. Eventually the wrecks are shredded for recycling.
Apart from profits that might be made by CMA, such activities have considerable merit and substantial community advantages when considered from the point of view of the community generally and the achievement of sustainability objectives. However, the storage and processing of scrap metal can certainly be unattractive visually and necessarily involves some amenity impacts in terms of heavy traffic, noise and other affects.
These industrial activities might be regarded as general industry rather than light industry. They are located at the interface between an industrial zone and the residential land to its west. There is considerable scope for amenity and convenience impacts on either side of such an interface. Modern planning seeks to locate activities that are likely to be in conflict into separated localities, perhaps with other activities in between, so as to avoid or minimise such conflicts. However, many interface situations with conflict potential already exist, and have existed for many years. This site on this interface is an example.
There is a history of complaints from nearby residents in relation to noise and other alleged amenity problems dating back over a considerable time. Approximately a year ago we considered Maroondah CC v CMA Recycling Victoria Pty Ltd[1], which is an enforcement application under s 114 of the Planning and Environment Act 1987 (PE Act). We do not need, for present purposes, to determine the validity of the complaints or alleged contraventions, but we are aware of there being a history of dissatisfaction between residents and their industrial neighbours. In this connection, we note that Heatherdale Road is a busy thoroughfare and a Road Zone Category 1, which carries traffic, not only to the CMA site, but to other industrial sites in the locality. It is our understanding that the application for the permit now in question arises from some reorganisation carried out or intended for the CMA site in relation to its activities and also to consolidate some existing planning permissions into a single omnibus permit.
The responsible authority, having considered the application and objections, determined to grant a permit in accordance with the notice of decision to grant a permit that it issued on 23 September 2009. This notice contained the 19 conditions it proposed to impose.
No objectors (which includes Whitehorse CC) applied for a review of this decision pursuant to s 82 of the Planning and Environment Act 1987 (PE Act). When there was no objectors appeal, the responsible authority proceeded to issue a permit in accordance with its notice of decision to grant a permit. The permit granted was issued on 22 October 2009. However, CMA commenced the current proceeding under s 80 of that Act for review of conditions. Various objectors, including Whitehorse CC, filed statements of grounds and became parties to the review.
This case was originally anticipated to be a lengthy one. In fact, eight days were allocated for its hearing, and initial estimates suggested that this allocation of time would be insufficient. However, the parties undertook substantial discussions and negotiations between themselves whilst keeping us informed, from time to time, as to circumstances. The result has been a very substantial degree of agreement between the parties. In fact, the responsible authority and CMA have reached agreement on a form of conditions to be imposed in the permit. The EPA is content with that version of the conditions.
Very substantial inroads have been made upon the disputes between the objectors, including Whitehorse CC, on the one hand and CMA (now joined by the responsible authority) on the other. Ms Forsyth, appearing for CMA, said something to the effect that some tidying up around the edges was required, and there are some matters left for our decision. Nevertheless, the contending parties and their representatives expressed considerable satisfaction, not only with themselves, but with the spirit in which negotiations were undertaken, and the result achieved thereby.

A conditions review under s 80 PE Act differs from other planning merits reviews as to its scope. Most other reviews put the whole question of conditions in issue. That is true for an applicant's review of a refusal to grant a permit under s 77, an applicant's review of the failure of a responsible authority to grant a permit within the prescribed time under s 79 and an objector's review of a decision to grant a permit under s 82. As already noted, there is no objectors review before us.
Typically, a conditions review is in relation to one or more specified conditions. The scope of the review is limited to those particular conditions and it does not throw open for consideration other conditions not specified. Furthermore, it does not create the opportunity for the introduction of new conditions not even mentioned or contemplated in the decision of the responsible authority.
The only scope for a new condition would be if it arose as an incident, result or ramification of the removal of or alteration to a condition under challenge.
In this case, the application for review did not nominate particular conditions in relation to which review was being sought. One of the first things we asked, at the commencement of the hearing on the first day, was for nomination of the conditions to be reviewed, even if it included every one of them.
It was pointed out to us that what CMA had done was to put forward, as an attachment to the application for review, a new draft of proposed conditions in the form that it sought. The result of this is that, to determine the scope of the review it is necessary to compare this attachment with the permit issued to ascertain the differences. In substance, there were three main conditions in issue, but with some minor adjustments suggested to others.
There is a disadvantage in this way of proceeding. It appears as if it might be an invitation to regard the whole scope of conditions, including the possibility of new conditions not mentioned in the permit, and therefore not subject to a s 80 review, as being open for debate and inclusion.
In fact, some such understanding was relied upon whereby an attempt was made to include new conditions beyond those in the permit and in relation to which no review was sought by the applicant.
Although we can understand why objectors might have thought that the failure to nominate specified conditions, and the adopting of an alternative of putting forward a complete draft of conditions, might seem to invite a review of conditions generally (such as would have arisen if there had been a s 82 objectors' review), we do not think that this approach is correct. Like other condition reviews under s 80, we regard this one as being limited to the scope of the conditions in relation to which review is actually sought. It may be a little inconvenient to have to identify them by comparison of the suggested new suite of conditions against those appearing in the permit. Nevertheless, we do not think the adoption of that procedure grants us any more jurisdiction than that actually available under s 80 in relation to any conditions review.
No doubt, it was thought to be clearer and convenient to put forward a draft suite of conditions in the form in which the applicant considers they should appear in the permit. It probably is clear and convenient from some points of view. Nevertheless, we consider it to be preferable, even where such a draft is included, for there also to be nomination of the particular conditions in relation to which review is sought. If review is sought in relation to every one of the conditions in the permit (or notice of decision to grant a permit if that is what is relevant), then that can be stated, but it is better to maintain the distinction that we have drawn in the discussion under this subheading. That is a distinction between a review limited to particular conditions as opposed to a situation where the whole question of conditions is put in issue (as with the s 82 review) where new conditions unrelated to any in the permit can be advocated.

Condition 5 of the CMA/responsible authority draft conditions is what is sometimes referred to as a "nuisance" condition. It requires compliance with amenity conditions previously (that is to say under previous planning schemes) referred to as "light industry conditions". It requires that there should not be unreasonable effects on the amenity of the area in various respects, including the discharge of dust, odours, noise, vibrations and other things. Such a condition had been proposed by the responsible authority and initially challenged by CMA. Subsequently CMA agreed to it being restored.
Beyond that, draft conditions 11 and 12 call for management plans in relation to the emission of dust and combustible dust to the atmosphere.
It was initially suggested that there should be a management plan in relation to other emissions to air. Concern about this issue may have been more pressing were it not for the restoration of condition 5 in relation to amenity detriment.
We consider that a general air emissions plan goes beyond the scope of this review. After discussion and consideration, the suggestion for the inclusion of a new condition requiring such a plan was not pressed.

Condition 3 imposes time restrictions in terms of hours of the day when various operations can be carried on and when they may not. This condition in the original permit was subject to a secondary consent provision in that it imposed various times but on the basis that further written consent could be granted by the responsible authority to vary them. This introduces a degree of flexibility. It does not mean that the further consent would necessarily be granted, or granted for substantial increases in hours or for indefinite periods. There may be particular reasons for specified increases in hours, perhaps for limited periods would be justified. The introduction of a secondary consent provision implies trusting the responsible authority to behave sensibly, responsibly and reasonably in relation to the exercise of the power. There is an opportunity to review under s 149 PE Act, but that does not extend to objectors.
CMA did, at one stage, advocate a relaxation or removal of these restrictions on hours, but now accepts them subject to the flexibility granted by the secondary consent provision. It has never questioned or challenged the incorporation of the opportunity for such consent when restriction of hours of operation are contemplated. In that sense, it might be said that a proposal to make the hours absolute, by removing secondary consent provision, goes beyond anything that CMA has sought to have reviewed.
The restriction on hours for various activities is considered to be important in relation to the case. It represents a means of preventing or minimising intrusive noises during the evening and night time periods. It might be a secondary assurance in these respects inasmuch as condition 4 requires that noise levels emanating from the land must not exceed the maximum levels imposed by relevant EPA regulations. In practical terms, this means the State Environment Protection Policy (Control of Noise from Commerce, Industry and Trade) No. N-1 (SEPP N-1). Condition 4 thereby sets quite a sophisticated standard that must be met in relation to noise emissions. Condition 5 in relation to general amenity also refers to noise, and we will also refer to condition 9 requiring a noise management plan.
Nevertheless, the restriction on hours of operation is relevant in itself, and an assurance for residents who have been complaining about noise problems over a considerable period.
We propose to leave the secondary consent provision within condition 3. Quite apart from whether it is really a matter before us, we think that it is a useful and reasonable provision which we would include, on its merits, in any event.

An ancillary aspect of this question of operation hours is how public holidays should be dealt with. The scheme of hours provides for more limited hours of operation on Sundays for some activities, and no operations for other activities on Sundays. Saturdays, in both categories, are more restricted than weekdays but more generous than Sundays. Should public holidays have the equivalent hours to Saturdays, or should they have the Sunday hours? It was argued, on behalf of objectors, that the more restricted Sunday hours should apply. In this connection, reference was made to Anzac Day and Good Friday. Anzac Day and Good Friday are certainly solemn holidays compared to others. Christmas might be regarded as joyful, but also as the most widely celebrated holiday in the community by Christians and non-Christians.
All public holidays have their significance, indeed importance. Nevertheless, since the issue was raised to us, we propose to treat Good Friday, Anzac Day and Christmas Day on the same basis as Sundays leaving other public holidays to have the Saturday restrictions. We note, in passing, that Mr Garde QC, on behalf of CMA, said that he did not have instructions to agree to other than Saturday treatment for all public holidays. He also mentioned that operations are not compulsory in the absence of restrictions and that holidays on the solemn occasions and Christmas might well be taken voluntarily by CMA on behalf of its various employees with consequent cessation of operations.

We have already mentioned conditions 5 and 4 in relation to noise. We consider that condition 4 should refer specifically to SEPP N-1. That is particularly so in view of the fact that the present wording refers to "regulations" whereas SEPP N-1, the principle if not the only instrument relevant in this connection, is not actually a regulation.
Compliance with the maximum noise standards under SEPP N-1 will be required. Condition 9 calls for a noise management plan to be prepared and submitted to the responsible authority for approval. In its paragraphs, condition 9 specifies certain things to be covered by the noise management plan. Suggestions were made on behalf of the City of Whitehorse for further specifications in this regard. Some of them are really redundant. For example, a plan of this sort requires preparation or participation by an appropriately and qualified and experienced acoustical consultant or acoustical engineer. Failure to employ or involve such a person is likely to result in the plan prepared not being approved by the responsible authority. It is rather redundant to instruct a person with those qualifications on how to go about preparation of a plan by telling that person that he or she must identify possible noise sources and make an inventory of them together with an inventory of measures to mitigate noise. Likewise, some technical testing and assessment will be necessary to ascertain whether the SEPP N-1 requirements imposed by condition 4 are being or are likely to be met, and what further steps, if necessary, might be necessary to attain those levels.
It is appropriate that the plan include what is proposed in relation to future monitoring.
Whitehorse has sought a condition imposing on CMA the duty of acting as a post office or postman between Maroondah and Whitehorse. Whitehorse wants CMA to be responsible for conveying copies of the approved noise plan and approved amendments thereto from Maroondah to Whitehorse. This rather goes beyond any condition in the permit and beyond the scope of the appeal. In any event, we do not propose to impose that requirement. It was made clear, at least by implication, that CMA has no objection to such documents being provided to Whitehorse CC. We do not think it necessary to impose such a duty on CMA. The municipalities can communicate between themselves. We anticipate a request for such documents will be readily forthcoming from Whitehorse CC if there are future problems. If not, a duty of this sort on CMA would appear to be an unnecessary burden.
Mr Tracksdorf raised a couple of further points in relation to noise. He pointed out that stricter restrictions will be imposed from 10 pm onwards. As to that he made the observation that some children or older people may retire and be asleep before 10 pm. He also observed that the SEPP procedures involve a degree of averaging which can mean that a loud but momentary noise can occur that might and be disturbing without infringing on the noise level requirements imposed by the SEPP.
Both these things can be true, although they may not be frequent enough or severe enough to amount to a nuisance within the common law understanding of that term.
Furthermore, we have already mentioned that Heatherdale Road is the interface between the industrial zone and the industrial activities thereon to the east and the residential uses to the west. This inevitably means that there must be a greater degree of give and take between industrial users and residential users than might be the case between residential users with other residential users deep within a residential zone. The same degree of residential amenity cannot be expected at an industrial interface, just as the same degree of industrial amenity cannot be expected at a residential interface. There just has to be a degree of neighbourly tolerance and forbearance. The SEPP regime is a complex and sophisticated one, which seeks to strike a proper balance between interests on both sides of such an interface. It has the flexibility to deal with varying situations and varying zonings. It also has a degree of authority deriving from the expertise with which it is devised, the expertise of the authority that has propounded it and the fact that it has frequently been utilised and imposed by way of condition by this tribunal, in just the way now proposed. It seeks to strike a reasonable balance. That is not to say that there can never be any disturbance or that inaudibility will be attained and maintained. This is not going to be a silent situation, even if SEPP N-1 is complied with, together with the conditions of this permit. Heatherdale Road is a busy thoroughfare carrying a good deal of traffic including heavy industrial traffic. There are other industrial enterprises in the industrial zone that contribute, not only to the traffic, but also to noise. While we note what Mr Tracksdorf has pointed out, we are content with the conditions bearing on noise and timing, particularly conditions 3 and 4 in relation to times for activities and compliance with SEPP N-1.
Another point was raised in relation to a dip or bump in the road located, as we understand it, close to the intersection of Heatherdale Road with Palmerston Road. The problem here is that some vehicles, including heavy industrial vehicles, cross this point at speeds which cause noises that some residents find objectionable. It was suggested that CMA should be required to remedy this situation. It must be remembered that this piece of carriageway is the responsibility of the City of Maroondah, not CMA. Traffic other than CMA traffic use the carriageway and encounter the semi-obstacle. It was said that this matter has been investigated and that there are certain practical problems in relation to changing the road as suggested. Of course, CMA cannot do anything about it, even if induced by a condition, in the absence of approval from Maroondah. Maroondah has not sought such a condition. We would be reluctant to impose a condition that might put CMA in the invidious situation of being legally compelled to comply with a condition that it cannot comply with without breaking another law. We will not impose this requirement.
The last matter we will mention in relation to noise is the question of broadband beepers on reversing vehicles and mobile equipment. The fitting of such beepers, or their replacing current beepers, is dependent on approval of the industrial health and safety authority known as "Worksafe". Conditions 15 and 16 in the draft agreed between CMA and the responsible authority provide for broadband beepers, but subject to Worksafe approval. We understand that such approval is unlikely to be granted in relation to vehicles that operate beyond the site, and may not be available in relation to equipment and vehicles that are restricted to the site. In any event, we consider conditions 15 and 16 to be satisfactory.

The draft that has been presented to us is really a draft permit rather than just draft conditions. It includes the words of permission (often misnamed as "preamble to the permit"). We refer to the words that actually grant the permissions allowed by the permit and which follow the heading on the permit form that reads "THE PERMIT ALLOWS:".
The draft before us indicates a couple of slips that have been made in relation to the permit in its original form. The words contain a couple of redundancies. They are the word "AND" inappropriately inserted and reference to an activity that can be carried on as of right and for which planning permission is not required, indeed cannot really be given.
This s 80 review concerns the conditions, not the words of permission. The appropriate way for these accidental slips or errors in the words of permission to be corrected would be for the responsible authority to correct them pursuant to its powers under s 71 PE Act. The words of permission are not really before us in this conditions review.

In what we have already said we have dealt with the central issues raised before us, and, indeed, some minor ones. We do not purport to deal with every comment or mention made along the way in the course of the hearing. However, we have dealt with all the matters we consider to be significant and have given our reasons in relation to the determination that we have made on the various aspects of conditions raised in the course of the hearing. Our decisions will be reflected in the terms of the conditions that we will impose.
We are conscious that the draft before us dated 1 June 2010 represents an agreement between CMA and the responsible authority. Notwithstanding that, we consider ourselves free to amend the style, setting out and wording of conditions to put them into what we consider to be the appropriate form, as well as to give effect to our decisions in relation to the matters that have remained in contention. For example, the draft conditions refer to the permit being granted as "the amended permit". That makes it sound as if the original permit has been amended pursuant to s 72, s 87 or s 87A PE Act. That is not the situation. In granting a review of conditions in a permit we are determining what conditions the permit is to contain. Once we have determined that and given directions to that effect pursuant to s 85 (1)(e) PE Act the terms of the conditions become crystallised, indeed we consider that they become the conditions of the permit from the beginning of the existence of the permit.
It is true that a permit document dated 22 October 2009 has been issued and that it contains conditions in the original terms determined upon by the responsible authority. It is also true that this document becomes obsolete being superseded by what is admittedly a new version of the permit containing the conditions that we have determined upon. It is appropriate for a permit document in its final form to be issued.
Nevertheless, there is in existence a permit document in the original form. Whether or not it has any legal effect, its existence needs to be accounted for in some convenient way. The legislation does not give much guidance on this point. We do not think that referring to what is really an original permit as an amended permit is altogether convenient. Perhaps a notation on the permit document in its final form is the best way to meet the situation. Perhaps a notation might read:

This permit was originally dated 22 October 2009 in accordance with the determination of the responsible authority but the Victorian Civil and Administrative Tribunal in its determination dated 10 June 2010 of planning conditions application for review P3074/2009 directed that the conditions of this permit should be in the terms that appear on this document.

Environment Act 1987

CMA Corporation Pty Ltd v Maroondah CC [2010] VCAT 660

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

CMA Corporation Pty Ltd v Maroondah CC [2010] VCAT 660 (10 June 2010)

Parties

Legislation Cited (1)