Victorian Civil and Administrative Tribunal|2011-02-07

Country Endeavours Pty Ltd v Baw Baw SC [2011] VCAT 147 (7 February 2011)

Casacir Pty Ltd, David Jeffrey, Thomas Curnow, Department of Primary Industries, Earth Resources Regulation Branch and West Gippsland Catchment Management Authority

Virginia Anne Giles, John David Giles and Shapher Pty Ltd

This application is refused and no enforcement order is made.
Costs in relation to this case are reserved.

Dr R Sadler, barrister, appeared on the instructions of his client for the applicant company Country Endeavours Pty Ltd and also for Virginia Anne Giles, John David Giles and Shapher Pty Ltd. He presented written and oral submissions and called two witnesses who, like all witnesses in this case, gave sworn (or affirmed) evidence. In the course of their evidence each of these witnesses adopted an affidavit that had been filed. The witnesses were Mrs Virginia Giles and Robin Edward Brown, acoustics consultant.

Mr Graeme Peake, barrister, presented written and oral submissions and appeared on the instructions of Ken Smith and Associates, solicitors, for Casacir Pty Ltd and also for David Ian Jeffery and Thomas Curnow, both of them are directors of Casacir Pty Ltd. Mr Peake called three witnesses namely Neville Arthur James Goddard, accousicts engineer Timothy John Pollock, air quality and environmental engineer and David Ian Jeffrey, company director who adopted an affidavit or, in the case of Mr Jeffrey, two affidavits.

Mr Peter McWhinney, town planner of the Shire of Baw Baw appeared for the responsible authority. He presented written and oral submissions and was present during the first part of the hearing. He was later excused attendance on the basis that he would return if called for on the basis of reasonable notice.

Ms Sarah Hill, town planner of the Department of Primary Industries, Earth Resources Regulation Branch, appeared for that authority on 22 November 2010 and Nicola Collingwood, barrister, appeared on the instructions of the Victorian Government Solicitor for that authority on 24 November 2010. Representatives of the department were otherwise excused attendance on the basis of they would return if called upon reasonable notice.

There was no appearance by or on behalf of the West Gippsland Catchment Management Authority.

Various plans, photographs and other documents were tended in evidence. The evidence and submissions and documentary form have been retained on the file of the Tribunal.

Application under s 114 of the Planning and Environment Act 1987 for an enforcement order.

Failure to comply with various conditions in planning permit PLA0010/07 issued by the responsible authority on 3 March 2009 at the direction of this Tribunal in its determination of planning application for review Giles v Baw Baw SC.[1]

Farming Zone and subject to an Erosion Management Overlay and a Wild Fire Management Overlay under the Baw Baw planning scheme.

Crown Allotment 178 Parish of Neerim Title Plan 283848 being the land in Certificate of Title Volume 9381 Folio 649.

Crown Allotment 181 Parish of Neerim Title Plan 65832Y being the land in Certificate of Title Volume 10065 Folio 186

Crown Allotment 182 Parish of Neerim Title Plan 590111H being the land in Certificate of Title Volume 8209 Folio 297;

Crown Allotment 179 Parish of Neerim being Lot 1 on Title Plan 23437.

This case is an application by Country Endeavours Pty Ltd (Country Endeavours) for an enforcement order under s 114 of the Planning and Environment Act 1987 (PE Act). Orders are sought against Casacir Pty Ltd (Casacir) and two of its directors who have been joined as respondents. They are David Jeffrey and Thomas Curnow.
The application alleges contraventions of various conditions in a planning permit. The planning permit was issued by the Baw Baw Shire Council. The permit is No. PLA0010/07 and appears to have been issued by the council on 3 March 2009.[2] The permit was issued at the direction of the Tribunal in its determination of Giles v Baw Baw SC.[3] That case considered and determined two planning applications for review.[4] They were both objector applications under s 82 PE Act in review of a decision of the responsible authority to grant the permit.
That case was heard during December 2008 by two members of the Tribunal other than ourselves. The barrister who appeared for Country Endeavours before us, Dr R Sadler, said that the hearing had occupied 14 days. The case was strenuously and exhaustively contested across a wide range of issues. That is obvious, not only from the length of the hearing, but also from the length of the reasons given (162 paragraphs in a determination of 44 pages) and the variety of issues dealt with. We note too that the permit document itself runs to 15 pages and contains 60 conditions many of which contain numerous sub conditions. It is a complex, as well as a wide ranging set of conditions.
The permit allows the use and development of the land of Casacir at Neerim North Road for extractive industry in accordance with endorsed plans and subject to the permit conditions. The extractive industry concerned is a hard rock quarry to win basalt.
There has previously been an active quarry on this land. The Casacir proposal, for which it obtained the permit, was to reopen that quarry.
Virginia Anne Giles was a leading objector in the original review applications. Her name appears in the citation name given to the case. She has an interest in some farming land which adjoins the southern boundary of the quarry land owned by Casacir. She also has an interest in the company Country Endeavours. As we understand it she is the secretary of that company and her husband, John David Giles is its director. They hold similar positions in relation to another company, Shapher Pty Ltd (Shapher). Shapher is the registered proprietor of the Giles farmland and holds it as trustee for a self managed superannuation fund of Mr and Mrs Giles. It leases the land to Country Endeavours. Mr and Mrs Giles live at Narre Warren although she says they sometimes stay at the Neerim North property. Its address is 140 Pearce Road, Neerim North. Mrs Giles in fact gave that as her address in the affidavit filed in this proceeding that she swore on 16 September 2010, although she readily concedes she does not reside there full time and that it is not her regular residential address.
The property is approximately 40 hectares (a little over 100 acres) in area. It is farmland, apparently suitable for grazing. At the time it was acquired by Mrs Giles, or the companies in which she is concerned, it had a building on it generally referred to as a shed but which contain some facilities for its use for human occupation, at least for short periods.[5] After the land was acquired planning permission was obtained for a new dwelling that has since been constructed on the land. The permit was being obtained at roughly the same time as the quarry permit and Casacir was initially an objector. However, it withdrew its objection and the house permit was granted. The house has since been constructed on a location very close to the common boundary with the quarry land and with knowledge of the quarry proposal. We do not know why it was located there, or whether it could have been located elsewhere on the Giles land.
By her own admission it is clear that Mrs Giles was bitterly opposed to the idea of a reopening of the quarry and bitterly opposed the grant of a permit for that purpose. She was clearly disappointed at the decision of the Tribunal in the planning review case where it determined to refuse the objectors application, affirm the decision of the responsible authority and grant the permit.
Mrs Giles was also very dissatisfied with the decision of the Tribunal to grant the permit. She wrote the then president of the Tribunal complaining of our colleagues conduct of the case.
Since the permit was granted she, in her own name or through the companies with which she is associated, has continued to oppose Casacir's project and has commenced a number of different proceedings before this Tribunal which by her own admission have been aimed at opposing or frustrating the Casacir project in various ways. This enforcement application is the latest in that series.
Prior to the commencement of the main hearing Casacir applied for an order that Country Endeavours provide security for costs and for joinder of Mr and Mrs Giles and of Shapher. Requirement for the provision of security for costs was not imposed but the three additional parties were joined.

Section 114 PE Act and subsequent sections empower the Tribunal to make enforcement orders in certain circumstances. An enforcement order is legally binding and is similar to an injunction[6] which can restrain the doing of certain things or require that certain things be done. However, an enforcement order can only be made where a contravention of a planning law is established. Such contraventions might be a breach of the PE Act, a contravention of the planning scheme, contravention of an agreement made pursuant to s 173 PE Act, or contravention of a permit condition.
Establishing the contravention is an essential prerequisite of making an enforcement order and the enforcement order is required to specify the contravention: see s 119 (a) PE Act. However, the establishment of a contravention does not necessarily mean that an enforcement order should or would be made. The problem may have already been rectified or be in the process of rectification in circumstances where it might be reasonable to give the respondent an opportunity to rectify or complete rectification. The making of an enforcement order is discretionary even where all the legal prerequisites for the making of an order are satisfied.
An order is most unlikely to be made in relation to contravention that has been remedied unless there is some real reason to apprehend that it might recur. Orders are unlikely to be made in relation to contraventions that are being remedied or in relation to which there are undertakings to remedy unless there is real reason to apprehend that the remedies will not be carried through or the undertakings not been complied with. Orders are not to be expected in relation to technicalities or trifles.

The purpose of enforcement orders is to achieve rectification rather than to impose punishment. If punishment is warranted the appropriate course is to prosecute in a Magistrates' court.
Section 114(1) authorises a responsible authority to apply to the Tribunal for an enforcement order. It also authorises "any person" to do so. Section 114 PE Act imposes a positive public duty on a responsible authority to enforce the planning scheme. The responsible authority has a public duty to efficiently administer and enforce the planning scheme and to enforce any enforcement order or interim enforcement order relating to land covered by the planning scheme for which it is the responsible authority. There is no such duty on others.
The responsible authority in this case is the Council of the Shire of Baw Baw. It has not commenced any enforcement proceedings against Casacir and it does not support these current proceedings. It is opposed to them and considers them to be unnecessary and unwarranted.
There are other authorities with responsibilities in relation to the Casacir quarry. Two of them are parties in this current proceeding. One is the West Gippsland Catchment Management Authority and the other is the Department of Primary Industry-Earth Resources Regulation Branch (DPI). Both of these authorities are satisfied with the conduct of Casacir in relation to its quarry project and neither of them support Country Endeavours in its current application for an enforcement order.
The right to commence applications for enforcement orders is not limited to the responsible authority. As noted before, "any person" can commence such an application. This means that a person who is dissatisfied with a failure of a responsible authority to take enforcement proceedings that the person considers to be justified is not limited to applying to the Supreme Court for mandamus (that is an order from the court compelling an authority to carry out its public duty or to carry it out properly). Such a person can take their own proceedings. That is what Country Endeavours has done in this case.
The planning laws, including the planning schemes, are part of the public law of Victoria intended for the benefit of the public generally. Sometimes a citizen will commence an enforcement proceeding in the public interest although that may be combined with a personal or private interest. For example, the person may consider that he or she is suffering as a result of failure to comply with permit conditions inserted for that persons' protection (whether individually or amongst others).
Commencement of proceedings to protect the public and/or private interest of this sort appear to us to be appropriate and within the contemplated purpose of enabling "any person" to commence an enforcement application. Of course it is always possible for somebody to commence an enforcement application for ulterior motives going beyond those legitimate ones. Motives of vengeance or to frustrate, obstruct, annoy or to compel or induce a favourable financial arrangement would all be ulterior purposes in this sense.
It was suggested on behalf of Casacir that motivations behind this current proceeding extend beyond a proper protection of the public or private interests and are for other ulterior purposes.

We have already mentioned some of the background from which this current case emerges. We think it is relevant to add some words of Mrs Giles[7].
On 16 August 2006 she wrote on the letter head of Shapher to Messrs Curnow and Jeffrey giving an account of her concerns about the proposed quarry and its potential impact on her land and the locality. Towards the end of the letter she said:

Unfortunately I am left with no choice but to fight the opening of this quarry with all the resources at my disposal. Thus, I am in contact with a number of Government agencies, both local and State, and will be in contact with whoever I can get to get this stopped it if [sic][8] proceeds to Council permit stage, and is approved, I will have no choice but to fight it at VCAT and to whatever means I can legally go.

The only other option would be for you to purchase the land owned by Andrew and Karen Fox (they are asking $695,000-00); David & Sally (they want $395,000-00) if you bought our property for $800,000-00 (taking into consideration that we do NOT want to sell-we bought here to retire here-and the agroforestry that we have put in which will bring considerable returns and the gross inconvenience of having to move and restart somewhere else), being a total of $1,890,000-00, which would give you undisputed sway to the south. This would then enlarge your borders and thus make the noise, dust and other issues of less consequence to the south-east south-west and south. As a side note, the agroforestry on our property would bring in approximately (today's dollars) $1,000-00 a year for the carbon credit rights and the value of harvesting the trees in about 18 years.

We do not[9] want to sell, had made no plans for ever moving (having put into the property (not including the purchase price) in the vicinity of $260,000-00 into making this property one that will give us great water reticulation, fencing of paddocks, eradication of weeds,....., and a great place to live) but to buy us out is the only way if you do not want as big a fight as we can give, and continue to give.

We have rights and we see no reason for your rights to impinge on ours.

I will be away from 18th August to 20th September, thus out of contact (middle of the outback). I look forward to your reply.

On 14 April 2007, Mrs Giles wrote to Mr Jeffrey by facsimile transmission a letter in the following terms:

This note is to address two topics. The first is to inform you that we now have the permit for our dwelling approved from VCAT and from Council, and are preparing to build. The second is to discuss matters as they relate to our offer of sale at a price of $850,000-00 with a settlement by 20th April (this coming Friday), for which we have had no response from you. The balance of the email is intended to open up discussion on a number of matters as they relate to our offer.

Firstly, you will have noted the offer was reduced from our earlier asking price. This was a temporary price reduction - we had a window of opportunity where a quick settlement may have been advantageous, but that window is closing. It follows that, if the settlement does not occur in the time we communicated the price will go up again.

At the meeting in the city, Casacir rejected our offer, and stated that "it would be cheaper to fight". That statement has an implicit assumption that, having spent considerable money on fighting objections to the quarry, you then win. Obviously, if you lose, you will have not only incurred these significant legal costs of your own, but then will still be faced with the likelihood of needing to purchase all properties affected by the legislative requirement to "own or control" land within 500 metres of a new quarry site (and we have it in writing from several relevant authorities clarifying it as a new site). And it is our intention that our legal and other costs will be added to our asking price. And the base price will only increase as we build the house, etc. So in this scenario: ?- You still have to pay our base price ?- The base price will increase to reflect factors such as the increased value of our property, and increased values of any candidate replacement property. ?- We will be seeking additional funding to offset our costs for the unwanted legal fights. ?- And you will still have your own costs which you claim to be cheaper than purchasing now, plus all the above.

Of course, you have repeatedly stated that you will win. You have also been informed that I have? spent almost 2 years getting together all the legislative issues, and a?lot? of time going over the application and work plan with a "fine tooth comb'. The objection document (now at 200 pages, mostly in bullet points) contains all the likely objections, the many legislative failures and inadequacies of the application and the work plan etc. What you seem unable to grasp is that we are now very well prepared to fight the proposal, and that the advice we have received suggests we have an excellent chance of not only stopping your proposed quarry, but any future quarry operation. We have informed you of only one major strategy for opposing the proposal, namely the issue of buffers. The combined position of the dwellings of David & Sally, of Sue Carter, and ourselves, mean that enforcement of the buffers leave very little area that can be quarried (see attachment), even if you can overcome associated legislative issues. But that is only one topic for objection. Others will be tabled by us progressively, at our convenience. The bottom line is, we bought there to retire in peace and quiet, and we have a firm belief that no quarry will ever proceed unless due compensation is made to affected immediate neighbours. It then appears that you have some basic choices such as: ?- Save us all time and money, and permanently withdraw your application, now. Then (for example), David and Sally can get a reasonable market price for their place rather than being repeatedly disappointed by buyers who pull out when they learn of the quarry proposal.

?- Compensate all the neighbours in a manner that is appropriate to the interest of each of them, and do it now. This would remove many of the objections that are well positioned to forever stop the quarry. May I point out that the moment the quarry proposal is made public, we intend to table a raft of significant objections that will not be able to be quickly or cheaply addressed. In fact some may never be addressed to your satisfaction.? ?-Fight, spend lots of money, and still have to compensate as above if you still want a quarry. ?- Fight, spend lots of money, and then walk away from the whole show, with no possibility of on- selling it to another quarry. Believe me, we will be putting not just nails in the quarry coffin, but welding the lid shut.?

So, the offer for a sale at $850,000-00 still is on the table for the property, for a few more days (until 5pm on 20th April 2007). If you choose to totally ignore it, our price from the 21st April 2007 will immediately go back to a maximum of either $950,000-00 (or $ 1,050,000-00) plus costs such as legal costs and progressive improvement (house, ect.). Let me explain the difference between these two figures.? The additional amount of $100,000-00 we were originally asking (making the total $1,050,000-00) included the purchase by you of the only copy of the objection document that we have prepared.? This is what I value my time at for something like the equivalent of two years full- time work.

As we have said, we bought the property with the clear plan for building and retiring there, so if you would rather fight than buying us out, so be it.? This is in no way a threat, but an acknowledgement that we are prepared and ready for the long and tedious process: Council, VCAT, Courts, ...all closely followed by the media.

We have attached the survey plan and, as you can see, unless you purchase all three properties (ours, Thomas' and Carters') there is very little area that can be quarried, if indeed you can get over all the other legislative issues!

On 14 February 2009 she wrote another letter to Mr Jeffrey which concluded:

In addition to the above, this fight is a long way from over David. We will fight you over the proposed destruction of Kookaburra Creek's headwaters, spring and catchment, proposed loss of water flow and quality, and also the proposed flow of drainage into and through out property. As Craig pointed out, the Water Act 1989 (along with other legislation) would be fully and absolutely taken into account. Sue will not be allowing any blasting exclusion zone on her land and will be fighting that. We will be using, amongst other cases, the Rylands & Fletcher[10] case as our standard. When I said back in June 2005, before- your purchase of the properties, that I would fight any quarry proposal, I meant it.

Any costs that you have accrued or incurred because of delays or any additional work you have done, or have had to do (re-endorsing and the like) are soley due to the fact that you chose to put in much documentation that was/is provably inadequate, contradictory and inconsistent and which lacked substantiation (and the proposal keeps changing on the hop as Was clearly shown at VCAT), and also because you chose to not buy us out - and any costs incurred are simply just a consequence of your own decisions.

Finally, I must say that I was very surprised when you said that you were not enjoying yourself at VCAT since you had clearly stated that you made the decision that you would rather fight us.

Since the permit was granted, Mrs Giles has sought its cancellation under s 87 of PE Act including an application for an urgent stop development order under s 93. She was apparently attempting to prevent works authorised and required by the permit. There have been other proceedings under the Water Act 1994 in relation to alleged interferences with the flow of water from the Casacir land onto the Country Endeavours property and seeking an extension of time to review a decision of the West Gippsland Catchment Management Authority to grant a licence for works on a waterway.
This enforcement application is the latest in the series so far, although Mrs Giles declared, in the course of giving evidence before us, that she intends to take further proceedings in relation to the quarry wherever possible. She foreshadowed proceedings arising from an anticipated application for a licence in relation to allocation of water that will become necessary if the quarry project proceeds to its stage 2 as approved in the existing permit. Apparently her decision is already made on the basis of general understanding of what would be required without waiting for details and specifications that would enable an assessment of a specific application on its merits.
Mrs Giles has entered into considerable correspondence and communications with the responsible authority and the other authorities in relation to her view as to how they should carry out their duties including her view of the proper interpretation and application of the relevant legislation. She has commenced with requests but gone on to make demands and to seek to impose deadlines and to seek to extract undertakings. In some cases these authorities have expertise in relation to the matters they are administering, as well as statutory authority to regulate the matters concerned. The tone and style of the instructions delivered by Mrs Giles was sufficient to arouse considerable resentment culminating, in the case of the responsible authority, in its chief executive officer instructing staff not to deal directly with Mrs Giles and a written request of her to direct all communication, not to staff, but directly to himself.
The DPI, in its submissions to us, set out a policy that it follows in relation to enforcement matters. This includes a number of steps normally taken in relation to concerns or contraventions. Its scheme closely follows conduct which, in our experience, is frequently followed by authorities having a duty to administer and enforce various laws connected with local government. Putting the pattern into our own words, some people do not even need to be instructed as to what is required of them, they keep themselves informed and voluntarily comply. Others only need requests or advice, because once informed and aware, they willing comply with what is required. Others need warnings, threats of proceedings, written instructions or notices and perhaps ultimately infringement notices, enforcement orders, injunctions, prosecutions and so on. It is good practice, in our view, to obtain cooperation where it is forthcoming, and not to resort to proceedings unless they become necessary or unless there is real urgency about an important matter that requires urgent orders.
As indicated in her correspondence with the representatives of Casacir, Mrs Giles has been very persistant and very thorough in relation to her investigations relating to the proceedings, and in particular, in relation to this enforcement application. She has produced very large quantities of detailed information without being discriminating as to what is relevant and what is important. Even after supposedly culling her material she has presented considerable documentation in affidavits, exhibits and otherwise that descends to encyclopaedic detail. It failed to discriminate between the important, the minor, the trivial and the merely technical. She has not payed attention to the desirability of eliminating things that have been remedied and she is dependant on her own interpretation of the law, the permit conditions, and the facts. Her observations, perceptions, interpretations and guesses have sometimes been faulty.
There can be no question as to the diligence and persistence with which she has pursued her course, generally and in relation to the enforcement application. Apart from her considerable correspondence with authorities she has been persistant in observing the activities of Casacir and in taking photographs. This has gone so far as the use of telephoto lenses to take pictures from the top of a step ladder mounted in the back of a utility and also, apparently, the use of an airplane to take aerial photographs. Casacir felt obliged to call the police to have her removed from an observation position she had taken up in undue proximity to blasting operations. Indeed the police were called and required her to move for this reason on several occasions. On more than one occasion, according to her evidence, she has visited the site office of Casacir without appointment and then, finding no one there, considered herself free to go where she liked on their property without permission to make observations and take photographs.
We are satisfied that she has misinterpreted a number of the things that she has observed. For example, she made observations and took photographs of a vehicle refuelling facility on the site where she interprets dark patches as spilt fuel escaping to the environment, including to soil and water. We are satisfied the facility in question is designed, established and operated according to good practice so that any spillages are caught and directed in a proper manner into a proper retention facility. Nearby, in those particular photographs, there was a dark mark on unsealed ground. Mrs Giles immediately interpreted this as spilt hydrocarbon whereas Mr Jeffrey, in giving his evidence, quite frankly admitted that he did not know what caused that mark. He noted however that this was the position where a number of vehicles parked, including the water spray tanker. This reflected well on his credibility in contrast to Mrs Giles predisposition to find fault and to interpret things adversely wherever possible. Another example is her accusation of there having been a hydrocarbon tank in the quarry works area on the basis of no more than a distant photograph of something that looked as if it could be a tank or drum. When questioned about it, apparently for the first time, Mr Jeffrey was able to identify the article as a tank, but an innocent water tank.
In its submissions the DPI complained that Mrs Giles was "fishing". The word "fishing" in this context is an expression used by lawyers to indicate a search for evidence to support a case where the evidence, and perhaps the case, itself is unknown to the one doing the searching. In other words it is a speculative and hopeful search for a case or for evidence to support a case where those things are not known at the time the proceedings was commenced. Mrs Giles activities have been indicative of such conduct. She considers it to be justified in the circumstances.
We have been obliged to come to the conclusion that, even if concern for the public or private interest of land holders is involved, the investigation and prosecution of this proceeding has involved a searching for evidence and for opportunities to complain that would not occur to someone limiting their interest to actual problems.
We have accordingly been confronted with a proceeding that reaches far and wide in its scope. We have been obliged to consider carefully whether any and which of the concerns have substance and might warrant the making of an enforcement order.

Fortunately it has proved possible to narrow the scope of this case to focus on the permit conditions and the issues that could give rise to the making of an enforcement order.
In the course of the hearing, we indicated that we would not be minded to make enforcement orders in relation to matters that have been remedied, whether or not there was ever an original contravention. In like matter we would not be minded to make enforcement orders in relation to permit requirements that have yet to arise. For example, the permit contemplates several stages of development and exploitation. Conditions that relate to the second or later stages have not yet arisen as those stages have yet to be reached. As long as such conditions are met in time there will not be contraventions.

Conditions "To the Satisfaction of the Responsible Authority"

Quite a number of conditions that Mrs Giles originally sought to be 'enforced' require things to be done "to the satisfaction of the responsible authority". These dealt with various topics in relation to which she herself was not, or is not satisfied. However, these conditions do not require her satisfaction. They are met if the responsible authority is satisfied, even if Mrs Giles does not think that the responsible authority ought to be satisfied in the circumstances. If she has a dispute with the responsible authority about what it is satisfied with, that would have to be resolved outside this proceeding. We are not suggesting that there necessarily is a remedy for her in that respect; only that, if there is one, it cannot arise to the decision in this current case. We will not go into the question as to whether the satisfaction expressed by the responsible authority in relation to any of these conditions could be argued to be legally invalid for some reason as such arguments were not relied upon before us.
Prior to the hearing the responsible authority had expressed itself as being satisfied. Early in the hearing, Mr McWhinney, the council planning officer who appeared for the responsible authority, was asked as to whether it remained satisfied. He replied that, disregarding trivialities, there is only one minor matter about to which the responsible authority is not yet satisfied.
That matter is the requirements under condition 22 of the permit. Condition 22 concerns landscaping and, amongst other things, requires that the planting of trees as part of the landscaping should not be in "regimented lines". Some such planting has been in such lines. However, the responsible authority is satisfied with an arrangement whereby this is being or will be put right by the planting of additional trees, not in lines, so as to break up the impression of regimentation. It is satisfied that this matter is being rectified and that there is currently no occasion for an enforcement order in respect of it.
We too are quite satisfied in relation to this regimented landscaping matter and we agree with the responsible authority that there is no current occasion to make an enforcement order in relation to it. It remains open to the responsible authority to make an application for an enforcement order if ultimately it considers that is necessary.
Apart from this matter, the responsible authority is satisfied in relation to the various permit conditions that require its satisfaction. In those circumstances there can be no contravention of those particular conditions where the satisfaction required has in fact been achieved. Dr Sadler, the barrister appearing for the enforcement applicant, decided not to pursue orders in relation to those conditions.

Conditions 9 to 13 in the permit relate to questions of noise. It is alleged that there has been contraventions of conditions 9, 10 and 12.
Conditions 9 and 10 set up an unusual arrangement for noise control conditions. They are not necessarily easy to follow but condition 9 sets a noise limit of 45 dB(A) in respect of activities in the quarry other than construction activities whilst condition 10 sets a limit of 55 dB(A) for construction activities defined in that condition to mean any activities that are not part of the process of extracting, drilling, moving and processing (including but not limited to rock crushing and breaking) and transporting rock. It is usual, when imposing noise limitation conditions of this sort, to impose the limit and leave it to the operator to determine what steps are necessary to achieve it, and to modify those steps or arrangements if they prove to be inadequate. It is not usual, at the same time to seek to impose methods of shielding or preventing noises. It would seem to be incongruous to be concerned about the non implementation of a noise restriction device or strategy where use is unnecessary because the noise limit is in fact being met.
We note that these noise limits in these two conditions are set at a low level, particularly the 45 dB(A) one. We do not challenge the appropriateness of those low levels. It is not our function in this proceeding to do that, and we note that although this is a farming area where noises of various sorts are to be expected at various times, the evidence indicates that this is a relatively quite environment.
One difficulty about the interrelationship of these two conditions is the question of differentiating between construction activities and non construction activities for the purpose of determining which condition and which noise limit applies at particular stages and to particular activities. Initially there must be a good deal of construction activity involved in setting up the quarry for extraction work. However, there is no clear time line division between the two activities. Construction can and almost certainly will need to go on after initial extraction activities have commenced. All construction required for stage 2 and subsequent stages can be expected to take place after production from stage 1 has commenced.
This is of some significance inasmuch as condition 9, relating to other than construction activities, contains not only the 45 dB(A) noise limit but a list of five techniques to be employed for non-construction activities, apparently whether or not necessary to meet the 45dB(A) limit. Nevertheless, even if those techniques are required, whether or not 45dB(A) is not met, they are only required in relation to activities other than construction activities.
It is claimed that techniques (iii) and (iv) referred to in the conditions have not always been used. Technique (iii) provides that all hydraulic rock drilling must utilise "a silenced drill rig as demonstrated in the Atlas Copco Smart Rig brochure and, where necessary, localised acoustics shielding". This calls for a silenced drill rig and Mrs Giles has read this condition as meaning it must be exactly the sort of silenced drill rig depicted in the brochure referred to. Unfortunately there are several such brochures and the reference to Atlas Copco can and should be read as an example rather as than a specification.
The evidence is that there is only one rig of the sort she demands in Australia. It has been and is used at this quarry, but on occasion another silenced drill and shielded rig was being used. There is no evidence of exceedence of 45 dB(A) or that the work then being undertaken was not construction activities in which circumstance compliance with the techniques is not required.
Technique (iv) provides that when the rock drill is being operated at the top benches of stages 1,3 and 4 and at the top bench and second top bench of stage 2, then other machinery and equipment that must not be used or operated at the same time. Similar problems arise here as in relation to technique (iii).
We are disinclined to make enforcement orders in relation to conditions 9 and 10 in the absence of evidence that the 45 dB(A) and 55 dB(A) limits were being exceeded bearing in mind that the 45 dB(A) only applies to other than construction activities.
The evidence we have in relation to acoustic readings taken by qualified acoustics experts indicate compliance save for a single reading of 57 dB(A) on one occasion. This exceedence of 2 dB(A) is a difference so small that it cannot be perceived by the human ear. In these circumstances we regard that exceedence to be trifling.
We disregard the readings taken by Mrs Giles with her noise measuring device. Although she claims to have calibrated the device for use in accordance with its instructions, she clearly took her readings at incorrect positions.
Condition 12 calls for noise testing at certain locations within 12 months of the commencement of operation under stage 1 of the quarry. This commencement does not mean the commencement of construction works to put the site into a condition to enable the commencement of extraction for stage 1. The purpose of this testing is to verify certain so called "worst case scenario" predictions in specified acoustical reports. We proceed on the basis that commencement of operation on stage 1 was in November 2009 so that the specified 12 months has gone by. However it is common ground that some assessments have been made and a report as required by the condition have been provided to the responsible authority and the DPI. They are satisfied with the report although it is criticised on behalf of Mrs Giles as overlooking four of the assessments indicated in table 2 of the relevant Watson Moss Growcot Acoustics Pty Ltd reports.
Condition 12 concludes with a sentence reading:

Any recommended modifications to operations necessary to achieve compliance with EPA N3/89 Guidelines must be carried out to the satisfaction of the responsible authority.

Those guidelines are the basis for the noise limitation specified in condition 9. Whilst we are concerned about a condition that purports to impose a requirement without saying what it is, but leaves it to be created at a future date, we note that we have no evidence that further steps under this condition are required inasmuch as we have no evidence that the noise limitations imposed by conditions 9 and 10 are exceeded (save for the trifling exceedence 2 dB(A) previously mentioned) and we do have evidence that the responsible authority is satisfied.

Conditions 14, 15 and 16 of the permit deal with the issues of dust, variously requiring the preparation of a dust management plan, actions to address dust problems and the establishment of a weather monitoring station. The dust management plan required under condition 14 is to include specified monitoring requirements. Condition 15 requires dust generated by the use to be monitored and actions to be taken if contravention occurs of standards set out under what is stated to be the State Environmental Management Policy (Air Quality) but what we understand to be a reference to the State Environmental Protection Policy (Air Quality). Such actions are to be to the satisfaction of the responsible authority.
Mr Giles complaints are that the dust monitoring plan was not endorsed prior to the use commencing and that the monitoring has not been undertaken in accord with the requirements. She includes reference to inappropriate monitoring locations and failure to operate required real time aerosol dust monitoring station at all times. She has given evidence that she has observed dust plumes beyond the quarry site boundary and that the quarry is a source of dust that has caused her to have to clean out the gutters of her dwelling.
It is accepted that all of the specified dust monitoring stations set out under the endorsed dust management plan are in place and that after some teething problems, the real-time dust monitoring is also operating. The expert evidence of Mr Pollock is that the monitoring to date does not indicate that the applicable standards under the Air Quality SEPP have been exceeded. We further note, notwithstanding Mrs Giles complaint as to the number and location of the monitoring stations, that such monitoring is to be determined in consultation with DPI. DPI make no complaint that the dust monitoring is not appropriate.
Further the responsible authority makes no complaint that the dust management plan has not been adhered to or that the weather station is not operating to its satisfaction.
As we have set out earlier there is little point in making enforcement orders about a contravention that may have occurred in the past but has now been rectified. We are satisfied that the dust and weather monitoring are occurring in accordance with the dust management plan and permit conditions and that no orders are necessary.
In respect to Mrs Giles complains about observable dust plumes, she furnished nothing other than anecdotal reports, reports we do give much weight to in light of her demonstrated bias against the site and its operation and where the dust monitoring to date indicates compliance with air quality requirements. Some visible dust does not necessarily imply a contravention. More than that would be required to justify an order. As to the need to clean out her gutters, this is a rural farming location. Such land is typically subject to some dust from a variety of sources. We are not satisfied that this inconvenience can necessarily, much less wholly, be attributed to this quarry during its short operation so far.

Contraventions are alleged in relation to conditions 22 and 23 of the permit which deal with landscaping. However, both these conditions, though they contain some specifications, are requirements for landscaping to be done to the satisfaction of the responsible authority including, in relation to condition 22, timing to the satisfaction of the responsible authority. As previously noted, the responsible authority is satisfied save for the question of "regimented lines" in relation to landscape planting. We have already dealt with how that matter is being remedied and why we consider that no enforcement order is warranted in respect of it.

Conditions 25 and through to 30, 39, 47 and 58 are all conditions that variously deal with the management of surface water on and discharging from the site. Mrs Giles does not complain of non compliance in relation to all of them. Certainly there can be no valid question as to non-compliance with conditions where compliance is not required before stage 2. That stage has not been reached and will not be reached for several years.
Mrs Giles asserted that wastewater is being discharged from the site in contravention of condition 25, that the Flow and Water Quality Monitoring Program was not prepared before stage 1 commenced as required under condition 26, that the program is inadequate and has not been properly implemented. Mrs Giles also asserts that runoff from the constructed bund contains sediment and is discharging directly into the nearby drainage line she refers to as Kookaburra Creek.
Not only was evidence furnished by Casacir, but Mrs Giles own affidavit contains photographs of a monitoring/gauging station established to monitor the flow of water from the north-eastern spring that feeds into the drainage line. We understand that this monitoring is in place to enable Casacir to determine the nature of the flow before the spring is removed during stage 2 works. That spring flow is then to be replaced by water treated within the quarry land, via a series of holding and settlement dams and a constructed wetland.
While Mrs Giles is critical of the monitoring that has occurred, it is apparent to us that any such program is to be implemented to the satisfaction of the West Gippsland Catchment Management Authority. That authority does not seek to support Mrs Giles in her enforcement application. Again, if the authority is satisfied, there is no basis for us to find an order is necessary.
In respect to the issues raised by Mrs Giles about runoff from the bare constructed bund, we find that, while this may have been a technical breach, it is nevertheless a matter that is now rectified by the fact that the bund is now covered in grass and no sediment laden runoff has been observed by Mrs Giles more recently. No order is necessary to rectify this situation.
Mrs Giles is critical of the state of one of the settling dams on the site and other works to manage water quality. These criticisms are aimed at those components of the water management program that will be required for stage 2 of the quarry's development. That stage has yet to be reached and her complaint is premature.

Condition 31 requires the applicant to construct a specified portion of Neerim North Road in accordance with plans and specifications approved by the responsible authority. The responsible authority is satisfied that this construction work was carried out to its satisfaction. Whether Mrs Giles is aware of plans and specifications in connection therewith is neither here nor there. Unfortunately, although constructed to the requirements of the responsible authority, there has subsequently been some failure of this road. That is a maintenance problem which we will discuss later.
Condition 32 provides that, prior to the use of the quarry, access to it from Neerim North Road, must be upgraded, constructed and sealed to the property boundary so as to provide for semi trailer use in accordance with VicRoads standard drawing SB 2062 Typical Driveways-Single Unit, Prime Mover/Semi-trailer and B Double.
The evidence indicates that this condition is being complied with so far as entry of such vehicles travelling from the north along Neerim North Road to the entry the site and also in respect of vehicles leaving the site to travel north in Neerim North Road. A technical point is taken that provision is not made for such vehicles to enter the site approaching it on Neerim North Road from the south or to exit to travel south in that road. However, there is no occasion for either of these manoeuvres for activities connected with the quarry and we are confident that, in so far as the condition might be said to require such construction, it is a slip or oversight that might be reasonably corrected pursuant to s 87A PE Act. In the meantime, we do not propose to make the enforcement order requiring such construction.
Condition 34 requires the applicant to maintain a portion of Neerim North Road from the time quarry operations commence. As already noted, there has been a failure of portion of the road notwithstanding that construction was to the satisfaction of the responsible authority. This is apparently due to an unappreciated defect in the foundation of the road that has now become apparent. Arrangements are in hand between the responsible authority and the applicant for this to be corrected although both sides appreciate that this should not be done until weather conditions and ground firmness allow it to be properly undertaken. We accept this situation and do not propose to make an enforcement order in that connection in the meantime.
Condition 37 requires a code of conduct for drivers of vehicles involved in the use of the quarry site which must be to the satisfaction of the responsible authority and the terms of which must be made known to the drivers of vehicles not under the control of the operator. Two complaints are raised in this connection. One is that the code was only released by the council on 19 November 2009 where it is alleged that works commenced on 4 August 2009. That circumstance, if it be true, does not indicate a failure by the operator to comply with condition 37. If anything this purports to be a criticism of the responsible authority rather than Casacir. In any event it is a stale matter has long since been remedied.
The other complaint is that not all drivers of vehicles operate under the code. The condition itself recognises that there will be vehicles driven by peoples not under the control of the operator.
The drivers are to be encouraged to comply with code of conduct, but the operator is not required to enforce its compliance on them.
The operator is obliged, under the condition, to apply the code of conduct to drivers under its control and apply a system of penalties if the code is breached. The application of the code and any penalty system is to be to the satisfaction of the responsible authority, and not Mrs Giles.
While Mrs Giles may have observed unsafe driving practices it is for the responsible authority or the other highway authorities to deal with such conduct.

Condition 42 required that sewage, sullage and other liquid wastes are to be treated and retained on site in a septic tank system in accordance with the requirements of the Environment Protection Act 1970, the current septic tank code of practice and Baw Baw Shire Council. At present a septic tank has not been installed but the operator is using a sealed tank storage system in the meantime with periodic removal of such wastes from the site. Such an arrangement is a satisfactory alternative commonly operated in the community and the responsible authority is satisfied with it. As it is a system that involves no discharge to soil it can be regarded as at least equal to, if not superior to, an actual septic tank that does involve the discharge of treated sewage. Mr Jeffrey gave evidence that this sealed tank serves temporary office accommodation and that once the permanent facilities are constructed in accordance with the development plans an onsite wastewater treatment system will be installed.
In the circumstances the complaint in this regard is technical, the arrangements in hand are quite satisfactory and we do not propose to make an enforcement order in these circumstances.

Condition 53 requires the applicant, prior to commencement of works, to provide a hydrogeological assessment to Southern Rural Water which must address several things including aquifer identification and known aquifer characteristics of the work site. Such an assessment was provided to Southern Rural Water and that authority is satisfied with the assessment. It did address the topics nominated. The concern in this respect is that it was alleged on behalf of Mrs Giles that the discussion of the elements addressed was not sufficient or to her satisfaction or to the satisfaction of the consultant she engaged. All those things are beside the point. The terms of the condition are satisfied.
Condition 54 requires the permit holder to carry out certain investigations and other things to the satisfaction of Southern Rural Water. The key point here is that Southern Rural Water has indicated that it is satisfied with the compliance with this condition, and that is an end of this matter.
A somewhat similar situation arises in relation to condition 55 which requires the drilling of ground water monitoring bores to the satisfaction of Southern Rural Water prior to commencement of the use of the land. Although the condition does not specify ground water monitoring it does add that the results from ground water monitoring bores must be reported to the responsible authority and Southern Rural Water. There are bore holes that have been drilled. They are to the satisfaction of the responsible authority and both authorities are satisfied in relation to reporting.

Condition 59 requires the holding of routine annual community meetings to the satisfaction of the responsible authority. The responsible authority is satisfied in this respect.

Condition 51 appears under a subheading "DEPARTMENT OF PRIMARY INDUSTRIES" and a sub-heading "Commencement". It provides that the use and development of the land is not to commence until a "work authority" is granted in accordance with the Extracted Industries Development Act 1998. The DPI is the authority that is responsible in this connection. It has granted an authority. The condition goes on to say that the use and development must be in accordance with the works authority including the approved work plan issued pursuant to that Act.
We note that condition 1 of the permit merely requires modifications to an approved work plan and work plan conditions.
Condition 51 appears to incorporate the conditions of the work authority into the planning permit as planning permit conditions. This is an inconvenient procedure in that the permit document itself aught, generally speaking, to make it clear what duties and responsibilities are imposed and what it is that must be complied with. That is not to say that it is impossible to impose a condition, the terms of which, or some of the terms of which, are incorporated by reference to another document, particularly if it is a public and ascertainable document such as, perhaps, an Australian Standard. Nevertheless, it is only work authority conditions that would also amount to valid planning permit conditions that could be incorporated in this way. Other work authority conditions that would not satisfy the requirements of validity planning as permit conditions cannot gain that validity by this means. As we said, the DPI has the power and responsibility of enforcing its work authority and its conditions. It is so satisfied and is not seeking to take any enforcement proceedings against Casacir at this stage. We are content to leave it at that.
Presumably the purpose of a condition like the second part of condition 51 is to bring in the planning permit enforcement provisions in the PE Act, such as the enforcement order provisions, as an alternative means of enforcement to those given to the DPI by other legislation. There can well be some overlap, possibly even inconsistency, of work approval conditions with the conditions of the planning permit. Insofar as there is no inconsistency, but repetition, we do not propose to canvass again the topics we have already dealt with. Although it may sometimes be convenient to add planning enforcement powers as an additional means of enforcing some condition under other legislation, an enforcement order is always a matter of discretion and we do not propose to make one in relation to condition 51 in the circumstances of this case where the relevant authority is satisfied with its own powers and considers that an enforcement order is not warranted.

Our conclusion is that we refuse this application for enforcement orders and no enforcement orders are made.

[1] [2009] VCAT 61; Tribunal numbers P1891/2008 & P2245/2008 arising from planning permit application No. PLA0010/07

[2] The date is depicted only faintly on the copy of the permit attached to the application. The submissions on behalf of the applicant suggest the date of issue as 6 July 2009.

[5] We realise that facilities that could be used for short periods might also be used for longer periods.

[6] An injunction is a court order restraining or requiring certain actions.

[7] Throughout these reasons we recite or rely on material contained in the affidavits of Mrs Giles. Some of this material includes correspondence that was initially material "without prejudice". Such markings were noted in the course of the hearing, however the documents were subsequently admitted into evidence without objection or with consent.

[9] All emphasis and punctuation in this and the following quotations are in the original.

[10] Rylands v Fletcher(1868 [1868] UKHL 1; L.R. 3 H.L. 330) is an old English case concerning the escape of water. However, we understand it , it is no longer good law in Australia having been overridden some years ago by the High Court of Australia.

Environment Act 1987

Country Endeavours Pty Ltd v Baw Baw SC [2011] VCAT 147

At a glance

Court

Decision date

Source

Judgment (64 paragraphs)

Country Endeavours Pty Ltd v Baw Baw SC [2011] VCAT 147 (7 February 2011)

Parties

Legislation Cited (2)