Geelong Community for Good Life Inc v Environment Protection Authority and Shell Refining (Australia) Pty Ltd [2007] VCAT 601

Mr A Southall QC with Mr R A R Lewis of counsel instructed by Environment Defenders Office (Vic) Ltd

Mr Paul Willee QC with Mr Anton Lindeman of counsel instructed by solicitor of the Environment Protection Authority

Mr Jeremy Gobbo QC with Mr Jason Pizer of counsel instructed by Blake Dawson Waldron

1 This case raises difficult issues about third party appeal rights under Victoria's Environment Protection Act 1970 ("the Act"). I have written extra judicially about third party appeal rights under the Act[1]; it is a vexed question.

2 Since the early 1950s Shell Refining (Australia) Pty Ltd ("Shell") has conducted a major oil refinery in Corio. And, since the 1970s, Shell has had a licence under the Act to emit waste into the atmosphere.[2] Over the years the licence has been amended many times, including significant amendments made in 2004 which were designed to lead to substantial reductions in the volume of wastes emitted to the atmosphere.

3 On 23 November 2005 Shell applied to the Environment Protection Authority ("the Authority") for various amendments to the licence. It took several months for the Authority to consider the application for licence amendment. But on 30 June 2006 the Authority completed its considerations and issued an amended licence which made substantial changes to the previous licence.

4 The Geelong Community for Good Life Inc ("Geelong Community") is a community organisation which has as a substantial purpose the improvement of the environmental amenity of Geelong residents. The other applicants are members of or supporters of Geelong Community. The applicants have applied to the tribunal pursuant to section 33B of the Act to review the decision of the Authority to amend the licence. The Authority and Shell contend that the applicants have no such right. These reasons seek to explain how this dispute ought be resolved.

(b) issues a licence on an application to which section 20(8) applies; or

(c) amends a licence on an application to which section 20A(6) applies; or

a person whose interests are affected by the decision (other than the applicant or licence holder) may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.

In the present case the applicants rely upon paragraph (c) and contend that the Authority has amended a licence on an application to which section 20A(6) applies.

(6) Where the Authority receives an application under this section which relates to a matter in respect of which a works approval was required to be obtained and a works approval has not been obtained and the works have been completed or substantially completed the following provisions shall apply -

[There then follows a detailed procedure of notification and public involvement.]

It is to be observed that section 20A(6) involves a number of elements. First, it is necessary to examine the application for the amendment of the licence to ascertain whether the application relates to a matter in respect of which a works approval was required to be obtained under the Act. Second, if the application does relate to a matter in respect of which a works approval was required, it is necessary to ascertain whether a works approval has been obtained. Third, if a required works approval has not been obtained it is necessary to ascertain whether the "works" have been completed or substantially completed.

7 It is, perhaps, desirable that I make brief reference to certain other provisions contained in section 20A of the Act, which deal with the amendment of a licence. Essentially the scheme of the section is that the holder of a licence may apply in writing to the Authority for an amendment of the licence. But, by reason of sub-section (3), the Authority is directed not to deal with such an application if it relates to a matter in respect of which a works approval is required to be obtained and has not been obtained. In other words the scheme of the Act is that licence amendments, which are consequential upon "works", should not occur until the works approval process has been undertaken and the works completed. Sub-section (4) contemplates the situation where an application for an amendment relates to a matter in respect of which a works approval is not required. In that case the Authority may amend the licence. Sub-section (6) deals with the situation where an occupier has "jumped the gun", by undertaking works without first obtaining a works approval.

8 In the present case Shell and the Authority maintain that the amendment to the licence on 30 June 2006 was an amendment which was made pursuant to section 20A(4) of the Act, on the basis that the application for amendment did not relate to a matter in respect of which a works approval was required. By contrast, the applicants contend that the application for the licence amendment was covered by section 20A(6); and, hence, the right of a third party to review the decision to allow the amendment is enlivened.

9 The provisions in the Act concerning works approval are complex. A tool which is used in this context is the categorisation of premises. "Schedule one premises" are premises which have been identified as requiring control in relation to air pollution. "Schedule two premises" are premises which are regarded as necessary to control to avoid water pollution or land pollution. "Schedule three premises" are premises where there is a concern about potential noise pollution. "Schedule four premises" are premises which deal with certain types of industrial waste. The applicable rules which apply vary according to the type of premises being considered. Of course, certain premises might be regarded as not just schedule one premises, but also schedule four premises; or, for that matter, each of schedule one, two, three and four premises.

10 The Environment Protection (Scheduled Premises and Exemptions) Regulations 1996 prescribes what are scheduled premises. Clause 5 of these regulations provides that the premises listed in Table A are prescribed as schedule one, schedule two and schedule three premises for the purpose of the Act. This clause also states that if a paragraph in Table A states that premises are also a schedule four premises, the premises are prescribed as schedule four premises for the purposes of the Act.

11 Table A generally describes premises by reference to the nature of the use of land. For example there is reference to intensive animal industries, such as piggeries or cattle feed lots; and there is reference to abattoirs, rendering works, paper mills, cement works and power stations. There is no question that the Shell premises are schedule one, schedule two and schedule three premises: as paragraph 7(c) of Table A states that the following fall within that description:

Oil or gas refinery works, being works in which crude oil or gas is refined or hydrocarbon fractions are produced.

12 However some premises are described in Table A, not by reference to a land use, but by reference to an activity which might occur on land. In the present context paragraphs 1(a) and (b) of Table A are relevant to whether the Shell premises are schedule four premises. These provide:

(a) Storage, treatment, reprocessing or disposal facilities handling any prescribed industrial waste not generated at the premises.

(b) Storage, treatment, reprocessing or disposal facilities handling any waste generated at the premises and which consists of cadmium, cadmium compounds, mercury, mercury compounds, polychlorinated biphenyls or any mixture containing polychlorinated biphenyls, organochlorine pesticides or germicides, arsenic or arsenic compounds except for the following premises -

(ii) those premises, with solely land discharges or deposits, used for the discharge or deposit of mining wastes, in accordance with the Extractive Industries Development Act 1995 or the Mineral Resources Development Act 1990.

All category 1(b) premises are also schedule four premises.[3]

The Geelong Community particularly relied upon paragraph 1(b).

13 As the Shell premises are schedule one premises, and are argued by the Geelong Community to be schedule four premises, it is necessary to set out the provisions that trigger a requirement to obtain a works approval in each case.

14 Section 19A(1) of the Act relates to schedule one premises. It provides:

(i) alter the method of operation of any trade or any process used in any trade carried on at those premises;

(ii) alter the type of fuel used in any fuel burning equipment or industrial plant in any trade carried on at those premises;

(iii) alter the type of materials or products used or produced in any trade carried on at those premises; or

(iv) install, alter or replace any fuel burning equipment or industrial plant on those premises or carry out any work on those premises which is the commencement of or any subsequent step in relation thereto -

where to do so is likely to cause the discharge or emission of waste to the atmosphere or result in an increase or alteration in the waste discharged or emitted to the atmosphere; or

(b) shall not construct, relocate or reduce the height of any chimney through which waste is or may be discharged or emitted to the atmosphere or carry out any work on those premises which is the commencement of or any subsequent step in relation thereto -

except in accordance with a works approval or a licence or a requirement specified in a notice given by the Authority as the case may be unless such work is only in the course of and for the purpose of general maintenance.

15 Section 19A(3A) of the Act relates to schedule four premises. It provides:

(3A) The occupier of a schedule four premises must not -

(a) install, construct or alter any works for the reprocessing, treatment, storage or disposal of prescribed industrial waste or carry out any works on the premises which is the commencement of or any subsequent step in relation thereto;

(b) alter the method of operation of any waste reprocessing, treatment, storage or disposal process involving prescribed industrial waste carried on at those premises; or

(c) alter the type of prescribed industrial waste being reprocessed, treated, stored or disposed of on the premises -

except in accordance with a works approval or a licence or a requirement specified in a notice given by the Authority as the case may be unless the installation, construction or alteration is done only in the course of and for the purpose of general maintenance.

16 At the time Shell applied for an amendment to its licence, it was operating under Licence No EM 30626. This licence was issued on 30 June 1997 and had been most recently amended on 8 November 2004. The licence applied to the Shell Refinery at Corio. The licence specified the general requirements under which wastes may be discharged to the environment. In particular, the licence provided:

1.1 Wastes must only be discharged from the site to the air, land and water environments in accordance with the limits and requirements specified in the tables and conditions of this Licence.

Licence provisions concerning hydrocarbon emissions

17 Clause 4.1 of the licence was a critical provision in relation to hydrocarbon emissions. It provided:

4.1 The Licence Holder is only permitted to discharge tank hydrocarbon emissions to air from the Premises in accordance with the conditions of this Licence, and from the Discharge Points (the location of which are indicated on the Plan of Premises) and at a total rate not exceeding the maximum overall limit as specified in Table 1.

Table 1 Hydrocarbon Emission Limits and Monitoring Requirements

Maximum Overall Limit of Hydrocarbon emissions from the Premises

Estimation technique(s) as approved in writing by EPA

Note: Future limit to be decided by EPA in 2005, likely to be around 72-200 tonnes/yr from 1/1/2006 (see conditions specifying works below).

In order to understand the intent behind clause 4.1 and the note to the clause, it is necessary to briefly describe certain other licence provisions and to provide some background.

18 In 2004 Shell prepared an environment improvement plan in relation to the Corio Refinery. This plan was prepared following community consultation, including consultation with Geelong Community. In the plan Shell highlighted that a major initiative would be to reduce volatile organic compound emissions (hydrocarbon emissions) to industry best practice levels.

19 When the licence was amended on 8 November 2004 a maximum overall limit of hydrocarbon emissions of 2,900 tonnes per year was thought to be capable of significant reduction from the year 2006 onwards. A condition of the licence was that a program be implemented to progressively apply best practice to the management of hydrocarbon emissions. The licence set out how this might be achieved: and outlined measures that seemed to contemplate that the method of reducing hydrocarbon emissions would be by use of a vapour recovery unit. Shell has had a vapour recovery unit on the premises for many years; and it would appear that the licence contemplated that this unit would be modified in order to improve its performance.

20 Another provision of the licence at this time was clause 4.9, which provided:

4.9 Tanks connected to the VRU and tankers filling at the road gantry must not vent directly to atmosphere under normal operations except in emergency situations.

The reference to the "VRU" is a reference to Shell's vapour recovery unit.

21 Clause 4.15 of the licence provided:

By 31 December 2005, the Licence Holder must install works to address the sources of 80% of the tank emitted VOC onsite, including the following works (or equivalent):

a) Back pressure reduction on lines from fixed roof tanks currently connected to the VRU;

b) Install internal floating blankets or connect to the VRU for large fixed roof tanks not currently connected to the VRU;

c) Upgrade the VRU by installing a second stage, or replacing the existing VRU with a new larger and/or more efficient VRU; and

d) A carbon bed adsorption polishing system or equivalent to treat the VRU scrubber discharge stream to meet the licence limit in Table 1.

The reference to VOC is a reference to volatile organic carbon.

A digression about hydrocarbon emissions[4]

22 I should digress at this stage to explain a little about hydrocarbon emissions. Organic carbon is a molecule that consists of carbon and hydrogen. Volatile organic carbon ("VOC") is a molecule that is likely to vaporise to a significant extent at normal ambient conditions. Petroleum products such as petrol, liquid petroleum gas, aviation gasoline and crude oil contain VOC vapours such as benzene, toluene and xylene.

23 Volatile organic carbons can be emitted throughout the supply chain of crude oil to refined product. However by far the largest source of VOC emissions at the Corio Refinery is "breathing" losses from tanks containing volatile components. Breathing losses occur when product is put into a tank with a fixed roof. As the product rises the air in the tank, which contains VOCs, is expelled from the tank through vents. This can occur through the normal receipt of feedstock, product rundown, or tank blending operations.

24 Many products at Corio are stored in floating roof tanks. This means the tank has a roof that floats up and down on the liquid surface so there is no tank breathing loss, although there are still some hydrocarbon emissions as a result of residual product that is left on tank walls when tank levels change.

25 Where petrol or other like products are stored in fixed roof tanks that are subject to breathing loss, VOCs are captured using a vapour recovery system. The tanks are connected through a manifold system to collect all the vapours. These tanks firstly balance off against other tanks; and any remaining vapours to be emitted are directed to a vapour recovery column where they are scrubbed against a heavier hydrocarbon stream to recover the volatile components.

26 The licence also contained provisions in relation to waste management. Clause 2.1 of the licence contained a general provision that required Shell to operate the premises in accordance with an environment management system that included procedures designed to ensure compliance with the conditions of the licence. In turn, clause 20.1 required that the environment management system include procedures for managing prescribed wastes, sludges and contaminated soil generated on the premises. Clause 20.2 then provided that no prescribed wastes, sludges or contaminated soil may be discharged beyond the boundary of the premises, or applied to land inside the premises, except within a designated or approved area.

27 I need to digress a little to explain the need for waste management at the Corio site. Every decade or so some of the tanks develop a sludge at their base. It is desirable to clear the tank of this sludge. Naturally the sludge tends to contain heavier elements. Shell takes the sludge to part of its site - known as Schoe Park - where it is dried, then mixed with green waste and composted, before being reused as compost.

Initiatives identified in the 2004 environment improvement plan

28 As part of the environment improvement plan prepared in 2004, Shell listed the current status of a number of initiatives identified in the plan. As these are relevant to the case put by the Geelong Community, it is desirable that I summarise some of these.

29 One initiative was to recommission the selective hydrogenation unit to improve Mogas feed quality. The recommissioning of this unit was expected to lead to a substantial reduction in the production of acid soluble oil; and therefore the frequency with which it would need to be burnt; which, in turn, would result in reduced fluoride emissions.

30 Another initiative was to recommission the residual catalytic cracking unit gasoline splitter. This splitter produces a "light" and "heavy" split of full range cat cracked gasoline, a major component of gasoline blending. While the primary reason for recommissioning this splitter was to provide more flexibility in gasoline blending, it had the environmental benefit that the heavy cat cracked gasoline provided the best available absorption medium for use in the vapour recovery unit. The 2004 plan indicated that the recommissioning of this splitter had been confirmed complete as of 31 March 2004.

31 Another initiative was to reallocate the use of tanks 17 and 21. Tank 17 is a large floating roof tank and tank 21 is a large fixed roof tank. By swapping the use of these tanks it was expected that there would be a reduction in hydrocarbon emissions. The 2004 plan records that this was completed as of 30 June 2004.

32 I have mentioned that on 23 November 2005 Shell applied to the Authority for various amendments to the licence. The formal application indicated that wastes would be discharged or emitted to the following segments of the environment: air, land, water and noise emission. The formal application did not indicate that there would be industrial waste treatment or storage. However this counts for little as it is necessary to look at the substance of the application.[5]

33 The application was accompanied by a detailed submission which outlined the nature of the changes sought to the licence and the reasons for these changes. As a preamble to its application, Shell stated that achieving licence compliance was fundamental to the refinery's operation. However it noted that a number of conditions in the current licence were not viable or were simply unachievable. This was the basis for a number of the requests to change licence conditions.

34 In relation to hydrocarbon emissions, the Shell submission noted that no emission limits were specified beyond 1 January 2006. Shell stated:

For these licence conditions to be practicable, they must set out the final emission limit to be achieved as well as a feasible time frame that allows the refinery to implement the work required.

Shell indicated that it had engaged specialists to advise on possible solutions and sought to reduce hydrocarbon emissions from 2,900 tonnes per year in 2005 to 650 tonnes per year by the end of 2011. The main means of achieving this was by adopting the technical solution of internal floating covers in tanks. This was seen to be better than the alternate option, which had previously been thought to be preferable, of upgrading the vapour recovery unit. Essentially Shell argued that the use of internal floating covers prevented vapour generation at source and was a preferred technology. To this end Shell sought a change to condition 4.1 of the licence to establish a reducing maximum overall limit of hydrocarbon emissions, commencing at 2,400 tonnes in 2006 and moving to 650 tonnes by the end of 2011. As a complement to this change, Shell also sought the deletion of condition 4.15 of the licence which had specified particular methods (mainly involving an upgrading of the vapour recovery unit) of achieving a reduction in hydrocarbon emissions.

35 Shell also sought an alteration to condition 4.9 of the licence to effectively delete reference to the vapour recovery unit. Shell argued that as the majority of the tanks to which this condition may have applied would be fitted with internal floating covers (and would no longer be connected to a vapour recovery unit) the condition was redundant insofar as it applied to tanks.

36 A number of other changes were sought to licence conditions. For example, a change was sought to condition 9.1 in relation to fluoride emissions. A change was sought in relation to condition 21.4 in relation to incidents which were required to be notified to the authority. There were changes to the licence provisions in relation to complaint notifications and annual reporting.

37 But, significantly, as far as I can ascertain, no changes were proposed to the licence in relation to the management of sludges. Nor were changes sought in respect of the recommissioning of the selective hydrogenation unit, the recommissioning of the residual catalytic cracking unit gasoline splitter, the switching of tanks 17 and 21 or the changing of the adsorption medium in the vapour recovery unit. The significance of this finding will emerge later in these reasons.

38 The licence was amended on 30 June 2006 so as to give effect to the requests made in the application for amendment. In particular, clause 4.1 was amended to substitute a reducing maximum level of hydrocarbon emissions, clause 4.15 was deleted, and clause 4.9 was amended in the manner sought. All these changes were the result of the Authority accepting that Shell's reliance on internal floating covers was appropriate. Other changes were also made to the licence; but, significantly, no change was made to clause 20 in relation to waste management.

Was the licence amended pursuant to section 20A(6) of the Act?

39 In order to determine whether the amendment of the licence on 30 June 2006 was an amendment on an application to which section 20A(6) of the Act applies, it is obviously necessary to focus upon the application for the amendment of the licence. However I would regard the amendments actually made to the licence as also potentially relevant in determining this question. In the present case this is unlikely to make any significant difference, as the amendments which were made were largely responsive to the application made by Shell.

40 In paragraph [6] I identified three elements of a licence amendment to which section 20A(6) applies. One of these elements is whether or not a works approval has been obtained. In the present case, it is common ground that no works approval was obtained. The other two elements are:

•

does the application relate to a matter in respect of which a works approval was required; and

•

if so, were those works completed or substantially completed.[6]

As the requirements of section 20A(6) must all be met for the sub-section to apply, these two elements may be reversed for the purpose of analysis: that is, it may be appropriate to first identify works that have been completed or substantially completed at the time of the application (or amendment) and then to ask the question whether a works approval was required to be obtained in respect of such works.

41 In its initial submission, Geelong Community submitted that at the time the Authority received the application for licence amendment Shell had completed, or substantially completed, the following works:

(a) the recommissioning of the selective hydrogenation unit;

(b) the recommissioning of the residual catalytic cracking unit gasoline splitter;

(c) the switching of tanks 17 and 21;

(d) the installation of internal floating covers and seals;

(e) the changing of the adsorption medium in the vapour recovery unit;

(f) changes to the piping on the vapour recovery unit and associated tanks; and

(g) installation of refrigeration units.

In its closing submission, this list was narrowed, to be confined to items (a), (b), (c) and the recommissioning of gasoline tank 22 as a floating roof tank (referred to in the Environmental Improvement Plan as AV06).

42 Bearing in mind the very broad meaning of the concept of "works" in the context of Division 2 of Part 3 of the Act, it would appear that most, if not all, of these activities constitute works. Further, at least some, if not all, of these works had been completed or substantially completed in November 2005 when Shell applied to the Authority for amendments to the licence.[7]

43 On this basis, it is desirable to focus on whether or not these works constituted works for which a works approval was required to be obtained under the Act.

44 Geelong Community did not rely upon section 19A(1) to sustain its contention that works approval was required for the works in question. It will be recalled that section 19A(1) applies to any alteration in the method of operation of a process, but only where to do so is likely to cause the discharge or emission of waste to the atmosphere or result in an increase or alteration in the waste discharged or emitted to the atmosphere. Presumably Geelong Community took the view that none of the alterations to the method of operation of the refinery (involved in the works in question) was likely to cause the emission of waste to the atmosphere; nor, for that matter, was any such alteration likely to result in an increase (or alteration) in the waste emitted to the atmosphere. Presumably in forming that view Geelong Community took as the starting point the nature and degree of actual emissions before the alterations took place.

45 However, Geelong Community did rely upon section 19A(3A) of the Act and contended that a works approval was required to be obtained for the completed works by reason of that provision. It will be recalled that this provision relates to schedule four premises and only schedule four premises. Assuming that the Shell premises are schedule four premises then, by reason of section 19A(3A), it must not alter any works for the "reprocessing, treatment, storage or disposal of prescribed industrial waste" or "alter the method of operation of any waste reprocessing, treatment, storage or disposal process involving prescribed industrial waste" (except in accordance with a works approval or a licence).

46 The Environment Protection (Prescribed Waste) Regulations 1998 provide that certain wastes are prescribed wastes. These include wastes that are listed in Schedule 1 of these regulations (and any mixture containing such a waste). The schedule includes wastes such as arsenic and arsenic compounds, cadmium and cadmium compounds, mercury and mercury compounds, spent catalysts, and waste oils unfit for their original intended use. The regulations then provide, in effect, that prescribed wastes are prescribed industrial wastes if the waste arises from an industrial activity. A difficulty with the schedule is that it is unclear whether industrial waste which contains extremely small proportions of certain elements, for example cadmium, is to be regarded as prescribed industrial waste. Ultimately, it has not been necessary for me to resolve this difficulty.

47 Clearly sludges that collect at the bottom of tanks are waste; and are very probably prescribed industrial waste. But it is not clear whether the regulations intend that hydrocarbon gases that may escape from storage or mixing tanks are also prescribed industrial waste. Such a conclusion would have widespread effects - which might not be intended - as petroleum products are routinely stored in industry, trade and commerce (and in motor vehicles used in industry, trade and commerce) and inevitably involve some escape of hydrocarbon gases. But, once again, it is not necessary for me to reach any conclusion on this question.

48 The licence amendment sought by Shell in November 2005 did not involve any change in operations in respect of sludges; and no change was sought nor made to clause 20 of the licence in respect of waste management. Thus, in relation to sludges, the applicants' contention is answered by the response that, as the application for amendment of the licence did not relate to this topic, the application could not be one to which section 20A(6) applied.

49 What the amendment sought was principally in relation to hydrocarbon emissions. However, in relation to these emissions, the amendment proposed the installation of works (internal floating covers) for the storage of petroleum products, not the installation of works for the storage of hydrocarbon emissions. Further the amendment did not seek to alter any works for, or the method of operation of, the reprocessing, treatment, storage or disposal of a waste; rather what was sought was an alteration in relation to storing petroleum product. The fact that the alterations were designed to reduce the escape of hydrocarbon emissions to the atmosphere does not change the character of the works or the process. That character is to be ascertained by the substantial purpose of the works or process. The storage tanks (which were the subject of alteration), and the process being used, was fundamentally for the purpose of dealing with product, not waste. As Mr Willee QC, for the Authority, put it the objective of the internal floating covers was not to treat waste, but to prevent product becoming waste.

50 There is another potential problem with the contention that section 19A(3A) of the Act applied to the changes sought by Shell. It would seem that activities described in the sub-section might be authorised by a licence as an alternative to a works approval.[8] Hence it might not follow that such activities, if in accordance with the licence, relate to a matter in respect of which a works approval was required to be obtained. I would observe that the distinction between a works approval and a licence under the Act is obscure, with many provisions adapted to deal with both types of instruments.[9]

51 Ultimately, though, the applicants' case fails because the specific works relied upon by the applicants as having been completed were not matters which relate to the amendment Shell sought in November 2005 (or which was granted in June 2006). As I have sought to explain, the application for amendment of the licence under section 20A of the Act did not relate to any of the works that had been completed. Thus section 20A(6) did not apply; and, as a consequence, a third party had no right to apply for the review of the decision under section 33B of the Act.

52 I would add that I do not find that all of Shell's premises are schedule four premises. Rather the intent of the regulations is that, where paragraph 1(b) of the schedule is relied on, such a classification is confined to that part of the premises where there are storage, treatment, reprocessing or disposal facilities handling specified waste[10] generated at the premises. Thus the Schoe Park area might be regarded as schedule four premises. However it would be anomalous if the whole of an industrial premises was regarded as schedule four premises just because a small portion was used to dispose of prescribed waste generated at the premises. In this respect I note that the word "premises" is defined in the Act to include: buildings and land of every tenure; and any plant or vehicle used in connection with any trade carried on at any premises. Thus it is intended that word adapt to the circumstances.

53 The applications for review are not within the tribunal's jurisdiction. Hence they must be dismissed.

54 I would add this observation. As presently advised, I would not regard this proceeding as one where it would be fair to award costs. Although the applicants have not succeeded, they have raised important and difficult issues on behalf of the community. The applicants' case was not hopeless. The applicants have pursued the proceeding responsibly and expeditiously. However if any party makes an application for costs, the tribunal will need to deal with it.

[1] See "Third Party Appeals Against Works Approvals: A Personal Journey", a paper delivered to a seminar hosted by the Victorian Planning and Environmental Law Association and the National Environmental Law Association, in association with Mallesons Stephen Jaques on 20 April 2004. This paper is published on the VCAT website under "Media" then under "Speeches".

[2] The licence appears to have changed from time to time. The current licence was issued on 30 June 1997. It is also noted that the current licence permits the discharge of wastes to parts of the environment other than the air environment, but nothing turns on this.

[3] The bold type and the italics type form part of the original.

[4] This summary is drawn from the Shell Environment Improvement Plan 2004, page 24.

[5] City of Springvale v Heda Nominees Pty Ltd (1982) 1 PABR 287.

[6] It is a moot point whether the relevant date for this purpose is the date the application for licence amendment is received or the date the authority decides to amend the licence. It is unnecessary that I determine this point.

[7] Mr Gobbo QC, for Shell, accepted that the matters is paragraphs (a), (b), (c) and (e) had been completed.

[8] Counsel for Shell submitted that section 19A(3A)(a) related to works approval and 19A(3A)(b) related to a licence. However this does not gel with the grammatical expression of the sub-section. Nor does it derive support from section 19A(1).

[9] Section 21 of the Act is an example.

[10] Which consists of cadmium, cadmium compounds, mercury, mercury compounds, polychlorinated biphenyls or any mixture containing polychlorinated biphenyls, organochlorine pesticides or germicides, arsenic or arsenic compounds. Sludge may contain cadmium, mercury and arsenic.