Mr Barnaby McIlrath, solicitor of Maddocks. Mr McIlrath called Mr David Ife, Hydrogeologist to give evidence.

Mr S Jones of counsel, instructed by GSM Lawyers. Mr Jones called Mr Kraan, Town Planner; Mr Green, Engineer and Mr Wyatt, Landscape Architect to give evidence.

The subject site is operated by Transpacific Industries (formerly Baxter Limited) predominantly as a landfill operation filling a former sand quarry with clean fill and solid inert waste. Some sales of sand products and composting of green waste occurs on the site but are not the subject of these proceedings.

The permit application seeks to regularise the increase in height of filled areas that exceed previous planning permissions given in 1999.

The enforcement order seeks the landfill to be completed and landscaped in accordance with these previous permissions.

P850/2006: Section 114 Planning and Environment Act 1987

P1099/2008: Section 77 Planning and Environment Act 1987

In the eastern part of the site: Public Park and Recreation (PPRZ) - Clause 36.03.:

For the remaining area of the site: Special Use Zone Schedule 2 (SUZ2) - Clause 37.01.

Land Subject to Inundation (LSIO) along the western part of the site - Clause 44.04.

Clause 36.02-1 (Innominate Section 2 use)

Clause 37.01-1 (Use in section 2 of Schedule 2 - refuse disposal

Clause 37.01-4 (Works in section 3 of Schedule 2).

Certificates of Title Volume 10032 Folio 814, Volume 8704 Folio 821, Volume 4385 Folio 846 and Volume 3906 Folio 096.

The subject site comprises an irregularly shaped block of land made up of multiple titles. The site is bound to the east by Clayton Road, to the north by Leslie Road, to the south by Victory Road and to the west by a Melbourne Water drain. The site extends for approximately 800m west of Clayton Road and is approximately 450m from north to south at its greatest extent. The site has a total area of approximately 39ha.

The site is ordinarily known as the Victory Road Landfill located at 649-681 Victory Road, Clarinda.

The councillors and citizens of the City of Kingston as the successor in title to the City of Moorabbin.

P1998/027398 AJ Baxter Pty Ltd v Kingston City Council & Ors (not reported)

An accompanied site inspection was undertaken on 22 July 2008, including inspections within the site and immediate surrounds.

An unaccompanied inspection was undertaken on 27 October 2008 which included viewing of the site from the northwest residential and other locations.

1. Two proceedings were brought before this Tribunal in relation to the subject land. In proceeding P850/2006, it is alleged that the site operator has failed to comply with rehabilitation and landscaping works agreed to by the operator and incorporated into a planning permit in 2003[1]. The specific works that are the subject of the enforcement application are those that involve rehabilitation and landscaping on a strip of land extending along the northern boundary of the site, the Leslie Road interface. This action is bought by Mr Norman Dennis who is a party to the mediation that produced the consent permit for the works to be undertaken. The operator alleges that permit was never acted upon, so the obligations were never triggered.
2. In proceeding P1099/2008, AJ Baxter Pty Ltd (Baxter) now Transpacific Industries Group Pty Ltd (TPI)[2] has applied for a new permit to regularise overfilling of the site which has resulted in elevation of the site being above the pre and post settlement elevations set out in endorsed plans under the current permit KP97/1009.
3. This new permit application was refused by Kingston City Council (the Council) on the grounds that:

The proposed post settlement contour levels are too steep in some areas which would limit the range of possible end uses for the land, and having regard to the previous Tribunal determination.

The proposed pre-settlement contour levels are too high after taking into consideration predicted settlement depths and desirable post-settlement contour levels.

1. Would detrimentally affect the visual amenity of the area;
2. Are not consistent with the long term future planning of the area;

1. Fail to maximise the potential future uses for the site for open space purposes.

1. It is fair to say that this site and the subject of final contour levels (i.e. the elevation and slopes of the rehabilitated site) have a long, protracted and sometimes complex history of permit applications, amendments and over exuberant activity on behalf of the operator. We will come to these matters in more detail where relevant.
2. Despite all this complexity, the potentially protracted nature of the hearing of both proceedings was greatly reduced by the preparedness of TPI to submit amended plans after the initial hearing in July 2008. These amended plans present post settlement elevations and contours that generally reflect the 1999 approved contours with the exception of one area - designated as Area C. It is this area that is the focus of the Council's concerns under the amended plans and to which we will in due course turn to in these reasons.
3. For the sake of these introductory remarks however, we have considered the matters before us in respect to Area C and on balance find the revised contour levels for this area to be acceptable. However our decision should not in anyway be construed as condoning the actions of Baxter / TPI in overfilling the site. We are conscious of the facts of this matter, which are that the site has been subject to repeated rounds of overfilling and applications by the operator to then regularise these actions through permit applications. Such activity is not to be encouraged or considered a proper course of action.
4. With respect to these proceedings, we have taken into account the actions of TPI to re-assess their position and submit the amended plans. In doing so they have undoubtedly accepted the high level of cost (in time, resources and works) that will be incurred in removing overfill from other areas to achieve the required 1999 contour levels that did then and will now also apply under the permit that is to issue for this site. Given these actions and the ready acceptance to undertake landscaping works along Leslie Road we consider that TPI have adopted a more responsible approach and perhaps have recognised the folly of the previous overfilling activities.
5. In balancing the outcomes sought by Council and those of TPI we have found that the increase in elevation regularised for Area C is of lesser consequence given the limited extent of sensitive interface and the likely future uses of the site and surrounding land at that interface. Our reasons will set out these findings more fully.
6. Before we turn to these reasons, it is appropriate to set out pertinent matters to this hearing and our findings.

1. The hearing, which commenced on 21 July 2008, was adjourned so that TPI could prepare the amending plans we have referred to and other documentation to support their application. We gave directions to facilitate these and other requirements before the recommencement of the hearing in October.[3]
2. At the commencement of the reconvened hearing on 23 October 2008, Mr Jones sought leave to substitute those plans which had accompanied the application with the amending plans. These plans, labelled Figures 1 to 3 prepared by Golder Associates,[4] present revised pre-settlement, post settlement and 'cut & fill' plans. There was no objection to the substitution and we have given leave pursuant to Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act'), for their substitution.
3. Also circulated in accordance with the directions of this Tribunal was a Construction and Environmental Management Plan (CEMP) to address the timing and nature of works to achieve the various works proposed for the site, including the landscaping works along Leslie Road and the reduction in overfill across the site.
4. The revised evidence of Mr Wyatt presented a Master Plan for overall landscaping of the site and Concept Plan for the Leslie Road and existing capped Clayton Road interfaces.
5. At the conclusion of the hearing, given the history of this proceeding and history of enforcement applications, there was discussion between the parties about the necessity for the landfill operator to act on this planning permit so as not to be able to allege in the future that this new Permit has not been acted upon. To this end, Mr Jones of counsel for Baxter/TPI assured the Tribunal that it would be acted upon by his client and that this should be recorded in the Reasons for Decision. This we have now done.
6. However, to ensure that the landfill operator is not able to allege in the future that this new Permit has not been acted upon, the Tribunal has decided to substitute for proposed condition no. 25 suggested by council which reads:

Commencement of this permit cancels Planning Permit No. KP97/1009

The continuing operation of the solid insert waste landfill at 649-681 Clayton Road, Clarinda is deemed to be commencement of use and development under this Permit and supersedes any other planning permit over the subject land.

1. Following the substitution of plans and the submission of the CEMP, the enforcement proceeding was put in abeyance and the hearing distilled down to the issues of the elevation and contour levels of Area C, detailing slimes drying, controlling the receipt of further fill and timing of works under the CEMP. These issues have been set out in the Council's amended statement of grounds.
2. Having considered the submissions and other material put before us, it is apparent that the substantive issue to be dealt with is that of the elevation of fill in Area C. It is our view that the matters raised in respect to the slimes drying, controlling of further receipt of fill and the like are details that are to be considered in the context of permit conditions, rather than be determinative of overall approval of the permit application.
3. Mr Dennis' requirements for landscaping which he sought through enforcement proceeding have been satisfied by the amended plans incorporating such works into the earliest possible timeframe.

Consequences of the higher contour levels of Area C

1. Mr McIlrath's submissions on behalf of the Council set out the planning context for the site. We do not intend to repeat these submissions in detail. Rather we highlight that it is apparent that what is of foremost concern to the Council is the future use of the site and surrounding land, impacts upon that use and the amenity of adjoining residential areas.
2. Reference was made by Mr Kraan and Mr McIlrath to the City of Kingston's Northern Non-Urban Framework Plan[5]. This plan has been adopted by the Council, but is yet to be exhibited or be reflected within the existing planning scheme. It is argued however that this plan puts detail to the broader existing local policy for the Sandbelt Open Space Strategy and non-urban areas[6]. Arguably the crux of the matter for the Council can be summed up in the overview expressed in policy that:

...land use outcomes in the non urban area are resolved through structure planning, and are not driven by short term economic expediency but seek to achieve sustainable use and development outcomes[7].

1. Local policy at Clause 22.03 earmarks the subject land, including the contentious Area C, and land to the east, west and south for future use post-landfill and extraction activities in line with the Sandbelt Open Space project. The Northern Non-Urban Framework Plan, it is contended, provides the detail of how the Sandbelt Open Space project would be implemented in this area. The details indicate that the southern portion of subject site[8] would be converted to a carbon sink / urban forest. To the south of this urban forest, i.e. south of Victory Road, an 'employment zone' is envisaged.
2. The northern portion of the site is included in Precinct 5 of the plan, a precinct earmarked for urban/non-urban integration. This area of the site is designated for core parkland use within the Sandbelt Open Space Project. It would interface to the north with possible residential development and active recreational uses and to the south with the urban forest/carbon sink of Precinct 4 of the plan.
3. It is in this planning context that the Council argues that the steeper slopes and elevation of Area C and extending into Area D are not acceptable. It is argued that the interface with existing and possible future residential areas will be adversely impacted by a loss of distant landscape views to the south. Mr McIlrath has also expressed concerns over the steepness of the slope being unsuitable for the required drainage of surface runoff from the landfill cover and future use of walking and bicycle trails within the park network.
4. We understand these concerns but we are satisfied that the increase in the elevation of the land at Area C and D will not be so great as to generate the degree of adverse impact advanced in the Council's submissions.
5. We acknowledge that the final settled levels of Area C are likely to be some five metres higher than that allowed for under the 1999 permit. In effect, the final height will not be too dissimilar to the current overfill height, with the form of the land being subject to some works to shape intended slopes.
6. With the benefit of our inspections from the west and north-west of the site, it is our conclusion that the proposed final elevation of Area C is not likely to impact the views so significantly as to warrant a reduction to the 1999 level. We concur with Mr Kraan that the existing residences to the north-west do not address views to the south-east and over the site. Due to the existence of sloping land and high fences, long distance views that we were urged to protect, in fact do not exist. We accept that a concern will include short distance views and the amenity gain for residents in this area. It is our conclusion that the raised height of Area C, when rehabilitated to an open parkland landscape will present an immediate and attractive aspect for these residents.
7. In respect to the impact of the proposed slopes on ambulatory activities, we accept the evidence of Mr Wyatt that steeper slopes can be easily addressed via a variety of designs to introduce appropriately graded walking and cycling or other such trails. Indeed we agree that some changes in topography are likely to introduce some interest and even provide locations for key viewing points.
8. Similarly, we are satisfied that the degree of slope is not so great that it presents an unmanageable risk of erosion to the final cap and rehabilitated surface of the landfill. We accept that while side slopes are greater than the 20% slope recommended in EPA landfill guidelines,[9] these slopes are nevertheless not so great that they cannot be addressed by suitable and established engineering practices such as drains, various drop structures and the like.
9. As to the use of the southern portion of Area C in the possible urban forest/carbon sink, we do not see that the increase in elevation affects this proposal. However, in making these comments we do not endorse or otherwise comment on the potential development of such a use. Indeed we have concerns over the viability of densely planted trees over a capped landfill that is required to maintain the integrity of the underlying, low permeability capping. This is not an issue to which we need turn to further in dealing with this application. It is to our minds, however, a proposal that will require further technical scrutiny of the potential for densely planted trees and their root systems to not adversely impact the caps' integrity.
10. Finally we address the suggestion from Mr McIlrath that the proposal for Area C amounts to a mounded landfill, and as such is one to be discouraged. The definition of various landfill types on which Mr McIlrath relies is to be found within the EPA landfill guidelines[10]. The types include the area method (backfilling an existing hole), trench and fill, mounding and valley fill. A mound landfill to which Mr McIlrath refers is defined as one where 'most of the landfill is located above the natural surface'.
11. Given the evidence of Mr Green as to the original depth of the sand excavations at Area C, being some 20m below natural surface, and the subsequent depth of landfill present and proposed for retention, we find it difficult to ascribe the notion of this area being a mound landfill which is so defined because most of the fill is above natural surface. We acknowledge that there is a degree of fill above the surrounding natural surface, but its proportion above this level does not match or exceed that below. Indeed, the need to raise and fill above the natural surface in order to provide sufficient grade to shed rainfall runoff is one of the aims of best practice landfill design. Our approval of this increase in elevation for Area C should therefore not be misconstrued as some tacit acceptance of a mounded landfill for a site context such as this. This operation is to be properly classed as an area fill, and the question that we have addressed is one of how high to allow airspace above natural surface.
12. It remains to be said that it follows from these reasons that we do not find the proposed elevation of Area C (and consequential raised levels in Area D) to be unacceptable. We are satisfied that the strategic and possible future uses of the subject site and surrounding land will not be adversely affected. Accordingly, the proposed contour elevations presented in the amended plans are acceptable and form the basis of the permit to be issued in accord with our order.

1. As set out at the beginning of these reasons, the principle matter of concern to Mr Dennis is the lack of landscaping along the Leslie Road interface to his property. The performance of this landscaping was contained in a consent order the result of a mediated settlement[11] in 2003.
2. The Construction Environment Management Plan (CEMP) prepared by TPI provides for the immediate landscaping works to be undertaken in this area. The CEMP also provides for an area of works to excavate and connect the base and side liner of an existing landfill cell (in Area E) to the proposed landfill cell in Area F. This area of excavation falls within the landscape area that interfaces with the Dennis property, as well as the Allied Sands property.
3. In a quid pro quo for this loss of a corner of the landscaping, TPI agrees to extend the immediate landscape works from a depth of 40m into the subject site (i.e. south of Leslie Road) as agreed in the original settlement to a depth of 60m. Amended plans have been substituted in accordance with this agreement.
4. Subsequent rehabilitation of the land beyond this 60m depth is consequent on the final use of Areas E and B for drying of slimes. The CEMP sets out a program of progressive rehabilitation of land deeper into the site from 2011, once the slimes drying activity is completed and Areas E and B have been re-contoured.
5. These outcomes are acceptable to Mr Dennis. We consider the outcomes to be a sensible and pragmatic balance between the ongoing needs of the site to achieve the final filling phases of the site and Mr Dennis' desire to improve the amenity outlook from his property. We endorse these outcomes.

1. Council's grounds, amended after the revised plans were lodged, sought to achieve definitive timelines for various activities contained within the CEMP. Principal amongst these is the time required for drying of slimes and consequential filling of final cells and progressive rehabilitation of the slime drying areas and eventually the final landfill cells. Mr Townsend also was vigorous in his exploration of other possible slimes drying approaches, nominally to decrease the time lapse for rehabilitation of land to the south of the Dennis land. Mr Townsend sought to explore various alternative options available to TPI to expedite slimes drying with less or no reliance on the large area of land required for the proposed passive solar drying.
2. The Tribunal is aware of alternatives to solar drying of slimes, indeed even of enhanced solar drying methods. Many of these are cost and resource intensive, such as belt presses, and are intended for use where ongoing requirements for drying of sludge or slimes is required and can justify various capital and recurrent costs.
3. At this site, we are dealing with a need to remove and dry slimes over a two year period (i.e. over two summer seasons). Such works are to be undertaken concurrent with the investigations[12] design and approval process for the final landfill cell in Area F. While mechanical or other alternatives for slime drying may be available, we see no real benefit to implementing such works, which in reality will not progress the rehabilitation of the land faster, including that land adjoining Mr Dennis' property, to a significant degree.

1. A number of refinements to the CEMP were explored by the parties to these proceedings. We have had regard to these and where appropriate directed changes through the permit conditions.

1. Mr Dennis asked that costs be reserved in both proceedings and Directions are issued to further the progress of his costs application.

1. For all the above reasons, the Tribunal directs the issue of a permit subject to detailed conditions.

The permit allows the use and development of 649-681 Victory Road, Clayton for the purpose of a solid insert waste landfill and increased pre and post settlement contours in accordance with endorsed plans and permit conditions.

1. The continuing operation of the solid insert waste landfill at 649-681 Clayton Road, Clarinda is deemed to be commencement of development and use under this Permit and supersedes any other planning permit over the subject land.

1. Within sixty (60) days of the date of this permit, amended plans must be submitted to and be to the satisfaction of the Responsible Authority. These must be dimensioned and drawn to a suitable scale and three copies must be provided. When approved the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the plans prepared by Golder Associates numbered Figure 1 Rev 2 dated 21 August 2008, Figure 2 Rev 3 dated 21 August 2008 , Figure 3 Rev 2 dated 21 August 2008 and Figure 4 Rev 0 dated 24 October 2008 and the Landscape Master plan Drawing No. Ls1 and the Landscape Concept plan Drawing No. Ls2 both by ERM Australia PL but modified to show:
   • (a) mapped staging arrangements identifying the proposed order of rehabilitation works, de-watering, drying of slimes, re-profiling, filling and subsequent capping of the landfill, which:
     • (i) respond to the timing of works depicted in the Construction and Environmental Management Plan (CEMP) to be approved under this permit;
     • (ii) indicates the estimated location of the western boundary of the existing liner for Area E which indicates the extent of proposed excavation necessary in order to connect liners for Areas E & F; and
     • (iii) accord with the endorsed landscape plan(s) and Rehabilitation Plan.
   • (b) pre settlement final contours for Area C which are based on a settlement rate of 10% to attain the required final contour levels, which take into account the existing settlement which has already occurred on previously filled areas, the interim capped area and unfilled areas;

• (c) catch drains and the proposed point of discharge; and
  • (d) progressive rehabilitation, capping and grassing of each stage commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5037 Leslie Road and extending south for a distance of at least 200 metres to the satisfaction of the Responsible Authority;
  • (e) the incorporation of the following amendments to the Landscape Master plan Drawing No. Ls1 and the Landscape Concept plan Drawing No. Ls2 both by ERM Australia PL:
    • (i) modifications incorporating the proposed increased landscape buffer shown on the plan prepared by Golder Associates numbered Figure 4 Rev 0 dated 24 October 2008;
    • (ii) incorporation of staging of landscaping in accordance with the staging plan and Rehabilitation Plan;
    • (iii) provision of additional plans for each stage of the landscaping proposed beyond Stage 1 to the satisfaction of the Responsible Authority.

2. Within sixty (60) days of the date of this permit, the proposed construction and Environmental Management Plan (CEMP) prepared by Baxter Group Limits dated August 2008 must be amended to the satisfaction of the Responsible Authority by:
   • (a) the inclusion of a plan of the subject land which depicts the areas in which the activities described in the proposed CEMP are to be carried out, including detail of areas proposed for the execution of works described in the CEMP for each Area, including for:
     • (i) drying of slimes;
     • (ii) storage of cover for each stage; and
     • (iii) location of cell-liner boundary between Area F and E.
   • (b) the inclusion of a works schedule describing the estimated timing and duration of each task forming part of each identified activity described in section 3.1 of the proposed CEMP including the activation of rehabilitation of Area E commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5037 Leslie Road and extending south for a distance of at least 200 metres as a matter of priority;
   • (c) Amending the proposed Construction and Environmental Management Plan (CEMP) prepared by Baxter Group Limits dated August 2008 as follows:
     • (i) In Part 2a. Timelines substituting 40m with 60m and substituting the expected completion date of June 2009 with 30 November 2009;
     • (ii) In Part 3 Methodology subsection 3.1 Staging of Works part a. substituting 40m (wherever appearing) with 60m and substituting the expected completion date of June 2009 with 30 November 2009;
     • (iii) In Part 3 Methodology subsection 3.1 Staging of Works part c. adding as a further dot point 'capping of Area E';
     • (iv) In Part 3 Methodology subsection 3.1 Staging of Works part d. substituting the expected start date of late 2011 with late 2012;
     • (v) In Part 3 Methodology subsection 3.1 Staging of Works part f. substituting 40m (wherever appearing) with 60m.

Once approved by the responsible authority (in consultation with the Environment Protection Authority) the plans including the amended CEMP will be endorsed and form part of this permit.

1. Except where otherwise provided for in the Construction and Environmental Management Plan (CEMP), the permit holder must not receive any further fill material until Council advises the permit holder that it is satisfied that Area F has been prepared in accordance with the CEMP and is ready to receive solid inert waste.
2. The use and development allowed under this permit must be carried out in accordance with the conditions of all relevant Works Approvals and licences issued in respect of the land by the Environment Protection Authority (including any Environment Management Plan or other document prepared under the Discharge Licence) and in accordance with the endorsed plans, including the CEMP. The use and development must not be altered or modified (whether or not to comply with any Statute, Statutory Rule or By-law or for any other reason) without the written consent of the Responsible Authority.
3. The operator must provide Council with existing conditions survey plans (typically aerial survey data) of the site until the entire site has been filled to the satisfaction of the responsible authority as follows:
   • (a) Annual surveys of the entire site to be undertaken between 1St January and the 30th June and the survey plans submitted to Council within 30 days of the date of the survey.
   • (b) Surveys to be undertaken of all active fill areas where levels are within 2m of the approved pre-settlement fill levels as a means of monitoring the surface on a regular basis. Surveys to be undertaken at intervals of no more than six (6) months and survey plans submitted to Council within 30 days of the date of the survey.
   • (c) All survey plans to clearly highlight any overfilling above the levels indicated on endorsed contour plans.
4. The operator must at the completion of the capping of the landfill:
   • (a) provide settlement survey beacons at points across each stage as approved by the Responsible Authority; and
   • (b) provide quarterly reports on the extent of settlement, including the provision of graphical data which describes survey levels for each survey point.
5. Within 90 days of the date of this permit a Rehabilitation Plan must be prepared to the satisfaction of the Responsible Authority and Parks Victoria which:
   • (a) provides details of proposed arrangements for the progressive, capping and grassing of each stage of the landfill commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5037 Leslie Road and extending south for a distance of at least 200 metres;
   • (b) provides for the progressive development of landscaping of each completed stage incorporating all proposed landscaping of the subject site described in the Landscape Master plan Drawing No. Ls1 and the Landscape Concept plan Drawing No. Ls2 both by ERM Australia PL including details of the proposed staging of all planting upon the completion of the relevant stage.

Once the Rehabilitation Plan is endorsed it will form part of this permit.

1. The permit holder must carry out the landscaping shown on the endorsed landscape plan within the following timeframes:
   • (a) the Stage 1 area described in the Landscape Master plan Drawing No. Ls1 and the Landscape Concept plan Drawing No. Ls2 both by ERM Australia PL must be completed by 30 November 2009;
   • (b) for each other Stage, prior to the end of Spring in the following calendar year after the Stage is complete.
2. Once completed, all landscaping must be maintained across the entire site to the satisfaction of the Responsible Authority until such time as the occupation of the land is transferred to the Responsible Authority or as otherwise agreed with the Responsible Authority.
3. Upon the completion of each stage of the landfill, the rehabilitation of the stage area shall commence without delay and be completed in accordance with the Rehabilitation Plan and landscape plan and to the satisfaction of the Responsible Authority.
4. Except where otherwise agreed by the Responsible Authority (as part of the current leasing arrangements for the subject land) the permit holder must provide a landscape bond to ensure completion and maintenance of all landscaping works for a period of twelve months after the date of completion of all landscaping works to the satisfaction of the Responsible Authority. The landscape bond must be made by way of a bank guarantee in favour of the Responsible Authority in the sum of $66,666.00 to be paid in two equal instalments on or before 31 May 2009 and 31 May 2010 respectively.

1. Surface water drainage as shown on the endorsed plan must be at all times be connected to the legal point of discharge. The surface water drainage system must be maintained as required by the relevant drainage authority.
2. All surface drainage must be diverted away from those portions of the landfill that have been or are being used for the deposit of wastes.
3. Waste or stormwater contaminated by waste must not be discharged beyond the boundaries of the land.
4. Discharge of groundwater, stormwater and wastewater from the land shall be in accordance with the requirements of the Environment Protection Authority.
5. Leachate may only be discharged from the land in accordance with the requirements of the Environment Protection Authority and the terms of any relevant licence, approval or statutory notice issued pursuant to the Environment Protection Act 1970, to the satisfaction of the Environment Protection Authority.

1. No polluted and/or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
2. Plans are to be submitted to Melbourne Water for approval, detailing how increased runoff as a result of works, will be retained on site to minimise any increase in flows.
3. A Stormwater Environmental Management Plan (SEMP) is to be submitted to Melbourne Water for approval detailing sediment and pollution control measures. The plan must show how sediment and pollution will be contained within the subject site.
4. No filling is to occur within 10 metres from the top of the bank (concrete channel) of the Clayton South Main Drain.
5. Plans are to be submitted to Melbourne Water for approval, detailing any works that have already been undertaken within 10 metres (horizontally) of the outside edge of the South Eastern Trunk Sewer.
6. Plans are to be submitted to Melbourne Water for approval, prior to the commencement of any further works located within 10 metres (horizontally) of the outside edge of the South Eastern Trunk Sewer. If no further works are to be undertaken in this area, Melbourne Water must be notified in writing.
7. A certified survey plan must be submitted to Melbourne Water for approval showing the existing site conditions before the proposed fill and the expected site conditions once the site has been filled.

1. Odours arising from the operation of the landfill must not be offensive to persons beyond the boundaries of the land in accordance with the requirements of the State Environment Protection Policy (The Air Environment).
2. The operations of the land must be supervised at all times by a site manager who is familiar with the requirements of this permit and the EPA Waste Discharge Licence.

1. When waste disposal operations cease in a particular location on the land, final cover shall be completed in accordance with the requirements of any relevant Waste Discharge Licence issued by the Environment Protection Authority.
2. The final surface of the landfill and any completed stage of it must be graded, capped drained and grassed to minimise erosion and to prevent ponding of stormwater in accordance with the endorsed plans and generally to the satisfaction of the Responsible Authority.
3. Wastes shall be restricted to the following components and shall be placed on the land in accordance with the requirements of the Works Approval:
   • (a) clean fill (soil, bricks and concrete);
   • (b) solid inert waste as defined in the State Environment Policy (Siting and Management of Landfills Receiving Municipal Wastes).
4. No waste may be discharged beyond the boundaries of the land.

1. A wheel cleaning device shall be constructed to the satisfaction of the Responsible Authority which is to be used by all vehicles leaving the site that have deposited fill in the reclamation area. In the event that the use of this device does not keep the road surface reasonably free of mud and deposits, the Responsible Authority may require the operator to provide a use an alternative wheel cleaning device within three months of such request to its satisfaction.
2. Suitable signs will be prominently displayed fronting Victory Road at the entrance to the site indicating:
   • (a) the hours of opening of the site;
   • (b) those wastes which may be deposited; and
   • (c) where wastes may be deposited.
3. Direction signs must be kept legible and in good repair.
4. All weather access road(s) shall be provided and maintained to the tipping area.

1. No waste shall be burned on the land.
2. An adequate water supply and distribution must at all times be provided to the land so that water may be discharged by means of a hose to extinguish a fire on any part of the land.
3. In the event of fire, prompt action will be taken to extinguish it.
4. A perimeter wire mesh fence and gate at least 1.8 metres high must be maintained around the land to prevent paper and other light materials being blown from the land.
5. Litter screens must be erected near the current tipping area as and when required to reduce to a minimum the amount of loose paper and other light materials being blown from the land.
6. All fencing and litter screens must be kept clean at all times.
7. Litter arising from the operations of the landfill must at all times be confined within the boundaries of the land.

1. Dust arising from the landfill operation must be minimised by:
   • (a) grassing of filled areas as soon as practicable on the completion of waste disposal operations; and
   • (b) regular light watering down of internal access road surfaces.
2. The emission of sand and dust from the site must be prevented by watering or other effective measures.

1. The control techniques to reduce birds and rodents on the land must be as contained in EPA Publication No. 788 BPEM Siting, Design, Operation and Rehabilitation of Landfills or other acceptable measures to the satisfaction of the Responsible Authority.

1. Before the landfill use of development commences, the owner of the land, in consultation with the Responsible Authority, must re-establish a Landfill Consultative Committee.
   • (a) The purpose of the Committee is:
     • (i) to review complaints and generally assess compliance with the conditions of all approvals associated with the landfill operation;
     • (ii) to review operational performance and encourage the use of best practice techniques in the operation of the landfill;
     • (iii) to consider and recommend to the Responsible Authority for consideration any preventative mechanism which may be required to minimise amenity impacts resulting from the use and development of the land.
   • (b) The Committee shall comprise:
     • (i) a Convenor and one other person (who may be Secretary) nominated by and representing the Responsible Authority;
     • (ii) one or two representatives of the permit holder;
     • (iii) a representative of the Environment Protection Authority; and
     • (iv) two representatives of local residents.
   • (c) Meetings of the Consultative Committee must be convened on a regular basis (and at least twice per year) and must be attended by at least one representative of the Responsible Authority and at least one of the representatives of the permit holder to the satisfaction of the Responsible Authority. The other representatives must be provided with a reasonable opportunity to attend or be represented by alternates.
   • (d) The Consultative Committee shall record and consider all matters raised by the representatives which reasonably pertain to the impact of the use and development of the land and the permit holder shall have regard to the recommendations of the Committee to the satisfaction of the Responsible Authority.
   • (e) The reasonable costs (including secretarial duties) of the Consultative Committee shall be borne by the operator to the satisfaction of the Responsible Authority.

1. The use/development hereby permitted must at all times comply with the EPA Publication No. 788 BPEM Siting, Design, Operation and Rehabilitation of Landfills and any further requirements of the Environment Protection Authority.
2. The use and development of the site must comply with any EPA licence as in force from time to time.
3. The site must will not be open for the reception of refuse, rubbish and other waste except between the following hours:
   • (a) 3.00am to 5.00pm Monday to Saturday; and
   • (b) 7.00am to 3.00pm Sunday
4. Landfill operations within 200 metres of residential properties shall not commence on any day before 7.00am.
5. The site must not be open on Good Friday and Christmas Day. The site must not be open on Boxing Day, Anzac Day, or Easter Monday without the consent of the Responsible Authority.
6. This permit will expire if the use and development is not completed by 2018. The Responsible Authority may extend the period referred to if a request is made in writing before the permit expires or within three months after the date of expiry.

[1] As a result of a mediation at the Tribunal

[2] The site was operated by A J Baxter Pty Ltd which was acquired by Transpacific Industries (TPI) prior to the commencement of the hearing. To avoid confusion we shall refer only to TPI.

[3] Refer to the order dated 23 July 2008, in which the permit applicant was directed to prepare amending plans and an environmental management plan. Directions were also made for parties to prepare amended grounds and expert evidence in response.

[6] Located respectively at Clauses 21.03 and 21.10 in the MSS and Clause 22.03 of the LPPF.

[8] Located in Precinct 4 'Enterprise Sites' of the Northern Non-Urban Framework Plan.

[9] Guidelines for Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills. EPA Publication 788, October 2001.

[11] VCAT proceeding P1480/2003 Dennis v Kingston CC & Baxter (unreported) dated 2 October 2003.

[12] Including the necessary exploration for the connections to the adjoining landfill cell liners in Area E.