Victorian Civil and Administrative Tribunal|2006-07-11

The applicant should demonstrate that the site represents an absolute containment facility for prescribed wastes with appropriate treatment and disposal facilities.

Council file record of meeting with tip applicant and EPA where discussions were held about 'terminology of waste types relating to the planning permit definition and works approvals' and the need for a new permit.

Council file note implying that when they hear from the EPA that prescribed waste will not include hazardous waste they will confirm no permit required.

As we discussed at the meeting, the company applied for a Works Approval to amend its current EPA licence ES 511/5 to accommodate their proposal which refers to the deposit of solid prescribed wastes only. At this time, no decision has been made on the application, however should the Authority approve the proposal, the following wastes would be specifically prohibited:-

(a)

soluble chemical wastes;

(b)

hazardous wastes; and

(c)

liquid wastes.

Systematic testing of solid wastes via elutriation and closed cup flash point testing would segregate acceptable hazardous[7] solid wastes.

As a consequence of the above restrictions, many of the Prescribed Wastes contained within the Regulations would be prohibited for deposit in the landfill.

43 19 April 1991 is the first written indication we have that council is told by EPA of a difference between acceptable and non-acceptable 'hazardous solid wastes' - depending upon the EPA testing criteria.

44 I note that the tipped material is still considered 'hazardous' in ordinary terminology, the difference being whether it is 'acceptable' to EPA or not.

EPA invite parties (Applicant, Council and Objectors) to an EPA WA s.20B conference on 9 May 1991 with attached notes of uncertain origin offering assurance that no hazardous waste is intended to be deposited.

EPA notes of s.20B conference expressing concerns about clay liner.

Council Minutes record, in a report on the WA 1493/1 from Council's engineering services to Council, that:

Discussions with the town planner showed that the current planning permit for the site can be applied without amendment as it requires all wastes to meet EPA requirements for disposal.

Council responds to EPA referral under s.19B(4A)(c), requiring the following conditions on WA but not specifically stating permit no longer required, contrary to the position it took on 26 and 27 March 1991:

That Council request EPA, when considering the works approval for depositing prescribed wastes at the BFI landfill, to take account of the following:-

List specifically prescribed wastes to be deposited at Lyndhurst.

Require testing of groundwater bores at quarterly intervals.

Institute a levy to collect funds to cover any emergency works required to prevent damage to the environment.

Provide Council with a commitment that EPA will carry out sufficient random testing of prescribed wastes at all times to ensure compliance with all regulations.

Applicant writes to EPA to the effect that they do not intend to vary the liner and will exclude wastes that are not compatible and will limit prescribed wastes to 25% of the intake:

We agree with the objectors to our Prescribed Waste Licence Application that USEPA Sub Title D standards, comprising of a composite liner of 1 x 10-8 m/x clay and a synthetic liner, should apply for the full range of prescribed wastes.

We are not intending to vary our liner at Lyndhurst and therefore we withdraw those wastes which are not compatible with clay liners alone from our application.

These wastes include hydrocarbons, and hydrocarbon based solvent residues.

Low level hydrocarbon contaminated soils will be used as cover to allow any volatiles to evaporate.

Further measures to limit the load on our clay liner are:

i)

Prescribed Wastes will be limited to 25% by weight of the total waste stream;

ii)

No prescribed wastes are to be placed in the first lift of any cell.

WA 1493/1 issued allowing prescribed industrial waste to be deposited over Lot 1. Interestingly, condition 4 requires:

This works approval shall not take effect until a copy of a planning permit under the Planning and Environment Act 1987 for the proposed works has been served on the Environment Protection Authority by the applicant.

45 I note that the WA permits 'prescribed industrial waste' as opposed to 'solid prescribed industrial waste'. I also note that between the WA and the licence, the language moves somewhat.

46 If the Responsible Authority had inspected the WA or draft Licence, it could not have failed to observe wastes that, in ordinary terminology, would be understood as hazardous.

The licence conditions are amended and now fundamentally changed:

2. The wastes shall consist only of the following components:

a

domestic garbage;

b

putrescible waste (other than domestic garbage);

c

solid inert waste;

d

prescribed wastes as listed in Schedule B;

e

low level contaminated soil (as defined in Schedule C);

f

other wastes not specifically excluded subject to written approval of EPA.

3. Notwithstanding Condition No. 2, the following wastes shall not be deposited at the site:

a

soluble chemical wastes;

b

hazardous wastes;

c

liquid wastes;

d

wastes listed in Schedule D.

Pursuant to condition 6, over the life of the landfill, the accumulative total of the prescribed wastes, as listed in Schedule B, shall not exceed 25% by weight of the total waste stream deposited in any cell or over the whole site.

47 Therefore in 1991, there is a major shift in the Licence. The amended Licence now permits tipping of its own (Schedule B) list of acceptable prescribed industrial waste, which is different to the EPA Regulations Schedule 1 Part B list, and contains some of the latter, such as cyanide sludges and residues - and its own Schedule D of prohibited wastes, which contains others of the Schedule 1 Part B substances, such as arsenic, hydrocarbons, phenols and wastes containing greater than 200g per cu.m. of free cyanide.

48 Within the EPA regime, therefore, EPA now divides hazardous wastes into acceptable and unacceptable wastes, such division being made on the hazard posed by the waste and elutriation and closed cup flash point testing criteria.

49 Schedule B of EPA licence E511/5 contains a long list of what, in ordinary parlance would be considered toxic, dangerous or hazardous, as does Schedule D.

50 The EPA has persuaded council that its selection and testing criteria, which move hazardous waste from unacceptable to acceptable hazardous wastes, should govern the planning permit regime. This persuasion flows through to the amended EPA licence, which still prohibits 'hazardous wastes'.

51 Although the Responsible Authority has tried to explain this away by saying some prescribed wastes are not hazardous, and the EPA's own licence still prohibits (at this point in time) 'hazardous wastes', looking at the 'prescribed wastes as listed in Schedule B' list, I think that this excuse simply cannot be maintained.

52 As SITA submits at its para. 58:

It is a nonsense to suggest that in one condition the permit would prohibit prescribed industrial waste when in another condition it calls up works approvals which authorise prescribed industrial waste.

53 SITA and EPA seek to impress upon me their position that, within the EPA regime, the 'acceptable' prescribed wastes are not 'hazardous', with no consequent breach of Condition 11 of the two planning permits.

Planning Permit Application 920213 for a private rubbish tip (sanitary landfill) to extend the landfill over Lots 2 and 3 is lodged.

WA 1636 is lodged with EPA to extend a prescribed industrial waste landfill over Lots 2 and 3.

Council inter-authority referral to EPA pursuant to s.55 Planning and Environment Act 1987.

EPA inter-authority referral to Council pursuant to EPA s.19B(3)(a)(iii) querying the status of planning permission.

EPA does not object to the planning permit provided an EPA WA is issued.

Council Minutes record information submitted with the planning application about the material tipped:

The existing landfill has a one metre thick compacted clay liner and leachate collection system (i.e. a fully contained landfill). Accordingly, the EPA extended the "permitted" waste type for this landfill to include the majority of waste designated as "prescribed" waste. However, this does not include any hazardous, soluble chemical or liquid wastes.

The Minutes also record that an objection was lodged on the grounds that:

BFI and Council are endeavouring to mislead the public by referring to the site as a "sanitary landfill". It is without question a "prescribed waste" disposal site.

The landfill is intended to be a secure facility for the disposal of putrescible, non-putrescible, inert and low level industrial waste using strictly controlled sanitary landfill practices.

Planning Permit 920213 issued for the establishment of a private rubbish tip over Lots 2 and 3 Bayliss Road, Lyndhurst.

The operation of the private rubbish tip hereby permitted shall be in accordance with the works approval of the Environment Protection Authority and the report on Environmental Studies prepared by Camp, Scott, Furphy Pty Ltd on April 1992 to the satisfaction of the Responsible Authority.

Wastes to be deposited shall only consist of domestic garbage, solid commercial refuse and solid industrial wastes and shall not include soluble chemical wastes, hazardous wastes or liquid wastes.

54 The Responsible Authority maintains its 1991 understanding of the material being deposited.

WA 1636 issued subject to obtaining planning permit and with attached draft conditions mirroring those in the Licence ES 511/5 amended on 6/9/91.

AAT (Planning Division) Webb, DP dismisses Objectors' appeals against Private rubbish tip on Lots 2 and 3 Lyndhurst because the grounds of appeal are invalid and one objector lacks standing.

WA 48573 application is lodged to increase percentage of prescribed industrial waste to 35% and upgrade liner system and capping.

EPA inter-authority referral of WA 48573 to Council pursuant to EPA s.19B(3)(a)(iii) querying the status of planning permits.

Council is invited to a s.20B conference for upgrading SITA's landfill liner system and increase proportion of prescribed waste from 25% to 35%.

Email to EPA from Council's Manager of Strategic and Statutory Planning:

Further to the Works Approval application for the above site, I advise that legal advice to Council indicates that the proposal may not require a planning permit. If this is confirmed, amendments may be required to existing permits.

Council requests that further information be sought before deciding the application and requests that conditions be included should the EPA approve the application. These details are included in the Recommendations section of the attached report, prepared by Nolan-ITU. This report should be taken as Council's submission.

In reference to the requested condition that ties the rate of fill between municipal and prescribed waste, Council's preference is that this would result in the landfill be filled within 2 years of approval.

Please contact me on 9238 1530 should you require clarification of Council's position.

Formal Council response to EPA referral pursuant to s.19B(4A)(c):

I refer to Andrew McCulloch's email of 4 June regarding Council's view of the application by SITA for a Works Approval to vary the quantity of prescribed waste from 25% and 35% as measured by weight.

Councillors discussed the referred application on 3 June 2002 and wish the EPA to be advised that Council would support the Works Approval subject to all of the following:

a)

Rate of fill of putrescible and prescribed be tied together to achieve a closure of the site on a fixed date in the medium term i.e. within 2 years

b)

Matters raised by Council's consultant be all satisfactorily addressed prior to the Works Approval being issued including such matters as:

i.

Improved ground water monitoring and potential impacts

ii.

Improved monitoring of hydraulic gradients required

iii.

Address leachate management concerns

iv.

Resolution of landfill gas exhaustion alternative.

c)

The operator should provide a quarterly report to the EPA on compliance with the Works Approval issued including filling rate and projected completion date.

EPA serves a copy of WA 48573 on Council, increasing amount of prescribed industrial waste to be disposed and upgrading landfill liner and capping.

55 Contrary to s.19B(4A)(a) the Responsible Authority does not advise whether a planning permit is required or not. One decade later, it appears to maintain its 1991 understanding of the material being deposited.

56 No usual draft licence conditions are attached to the WA, although, as will shortly be seen, a major shift occurs in the Licence.

The WA was sent to SITA with the following information:

The application has been approved as an interim measure, pending the development of one or more "long term containment facilities" in line with the Government's policy on hazardous waste management, which anticipates the establishment of alternatives to landfilling of Prescribed Industrial Waste. Please be advised that your licence will be amended to prohibit landfilling of this material when such an alternative facility is established.[8]

The Western Region Environment Centre Inc. & Australian Conservation Foundation reviewed SITA's WA to VCAT. VCAT held:

We have found that the limited grounds available to review the decision are not made out. If we were now to alter the decision or add something to it or substitute a new decision in order to improve it in the eyes of any of the parties, we would in effect be admitting further grounds of review beyond those permitted by the Act. We would be saying that parties are not confined to the permitted grounds but can add the further ground that the decision could be improved in some way. We do not think this is what the Act contemplates. The only order that will be made will therefore be that the application for a review is dismissed and the decision under review is affirmed. Throughout this decision, we have used the pronoun "we" for convenience. However, all legal questions have been determined by the presiding member.[9]

57 SITA lodged an application with EPA to amend its Licence ES 511/5, on a date unknown to us. No inter-authority referral to Council is required under EPA's regime for licence application and we assume no such referral occurred. On 30 April 2003, SITA's licence was amended, but a copy was not served upon Council.

58 There is now another major shift in the Licence. There is no longer a condition worded 'notwithstanding' and 'hazardous waste' has been dropped from the prohibited list. Wastes are divided into acceptable and prohibited wastes.

SITA's EPA Licence ES 511/5 amended to include under 'acceptable waste':

1.6

The landfill holder must ensure that over the life of the landfill the accumulative total of the prescribed wastes deposited at the landfill must not exceed 25% by weight of the total waste stream deposited over the whole premises.

1.7

The waste deposited must consist only of the following components:

(a)

solid inert[10] and putrescible waste[11];

(b)

asbestos waste of domestic origin;

(c)

potential acid sulfate soils;

(d)

prescribed industrial wastes as listed in Table A, Appendix 1;

(e)

pneumatic automotive tyres shredded into pieces less than 250 millimetres in all dimensions; and

(f)

other wastes subject to the written approval of the Authority.

1.8

Prior to acceptance for disposal at the premises, the prescribed industrial wastes must meet the following requirements:

(a)

wastes, listed in Table A, Appendix 1 which are nominated as requiring an elutriation test must be sampled and tested in accordance with the latest edition of the Authority's Publication No 441 A Guide to the Sampling and Analysis of Waters, Wastewaters, Soils and Wastes (or any other procedure approved by the Authority), and must meet the limits specified in Table B of Appendix 2, except where specifically permitted in writing by the Authority;

(b)

wastes, listed in Table A, Appendix 1 which are nominated as requiring a closed cup flash point test must have a closed cup flash point greater than or equal to 61oC, except where specifically permitted in writing by the Authority; and

(c)

wastes must not contain any free liquid as determined by method 9095A "Paint Filter Liquid Test" in the Test Methods for Evaluating Solid Wastes - Chemical/Physical Methods (USEPA 1997).

SITA's EPA Licence ES 511/5 amended to include under 'prohibited wastes':

1.9

The following type of wastes must not be deposited at the premises:

(a)

water soluble chemical wastes;

(b)

liquid wastes; and

(c)

wastes listed in Appendix 3.

1.10

If more than one waste component, as described in Conditions 1.7, 1.8 and 1.9 is capable of applying to a particular waste load, the waste component with the most restrictive requirements applies.

Polyhalogenated biphenyl wastes and related materials.

Chlorinated hydrocarbon wastes and related materials other than from metal cleaning and dry cleaning operations.

Notwithstanding the prescribed waste listed in Table A, Appendix 1 wastes containing greater than 200 grams per cubic metre of free cyanide.

Notwithstanding the prescribed waste listed in Table A, Appendix 1 Pesticides and Herbicides in concentrations greater than 50 ppm.

Radioactive wastes.

Explosive wastes.

Notwithstanding the list of prescribed waste listed in Table A, Appendix 1 highly reactive wastes such as carbides, phosphorus sludges and alkali metals.

59 We note that arsenic has moved out of a previously prohibited list in the Licence and into the 'acceptable prescribed industrial waste' stream subject to certain testing. Explosive wastes and radioactive wastes are still prohibited.

60 The amended Licence now contains its own (Table A, Appendix 1) list of acceptable prescribed industrial waste, which is different to the EPA Regulations Part B of Schedule 1 list and contains some of the latter, such as cyanide sludges and residues - and its own Appendix 3 of prohibited wastes, which contains others of the Part B of Schedule 1 substances, such as hydrocarbons, phenols and wastes containing greater than 200g per cu.m. of free cyanide.

61 Appendix 1, Table A and Appendix 3 both contain a long list of what, in ordinary parlance would be considered toxic, dangerous or hazardous. Table A is far more comprehensive than the EPA Regulations Part B of Schedule 1 list and includes a number of criteria to be met by particular wastes if they are to be accepted. The list includes toxic/dangerous materials such as Cyanide sludges and residues, Mercury and Chromium sludges and solids, Arsenic and Arsenic compounds, Cadmium and Antinomy compounds.

62 Within the EPA regime, therefore, EPA continues to divide 'hazardous' wastes into acceptable and unacceptable wastes, such division again based on an assessment of the hazard posed by the material and on elutriation and closed cup flash point testing.

Council writes to the President of RATWISE answering questions put to it on 18 July 2003 whether the WA for prescribed wastes contravenes the planning permit:

If a permit was issued for the Lyndhurst Landfill to accept putrescible waste only, how was it allowed to suddenly accept hazardous waste?

With regard to your question regarding the restrictions on current permits, permits issued under the Scheme (or its predecessor) regulate some aspects of the use of the land as a landfill. However, to a large degree, the planning permits rely on the terms and conditions of Works Approvals issued under the Environment Protection Act 1970 to regulate important aspects of the manner in which land filling is conducted, including the type of fill. Current permits do not restrict the landfill to putrescible waste only as you suggest. Condition 11 of Permit No. 890471 states "Wastes to be deposited shall only consist of domestic garbage, solid commercial refuse and solid industrial waste and shall not include soluble chemical wastes, hazardous wastes or liquid wastes". It is Council's understanding that current works approvals for prescribed waste do not contravene the planning permit.

63 This is the same position Council has maintained since 1991. However, at this point in time, council is unaware that the Licence has been amended again and certain additional wastes have moved from unacceptable to 'acceptable'.

A Further WA application 54365 for waste stabilisation works is lodged with EPA.

EPA inter-authority referral of WA 54365 to council pursuant to EPA s.19B(3)(a)(iii) querying the status of planning permits.

Thank you for your letter dated 13 January 2004 regarding the above application by Sita Aust P/L. As you are aware several planning permits regulate the operation of this site. It is difficult to determine, from the information provided, whether a new planning permit is required for the proposed use and buildings and works. It is suggested that the applicant be required to provide independent planning advice in this respect, and forwarded to my office for comment.

Council writes to EPA that, having heard from Daniel Fyfe of SITA, WA 54365 does not require planning approval.

Further to our meeting on 5 July 2004, I write to confirm some of the issues discussed.

In relation to the definition of "hazardous wastes" in condition 11 of permit no. 890417 and repeated in 920213, it is of note that the applicant for the original permit recommended that the Council insert the condition. It was also known at the time the original permit application was considered, that the landfill was proposed to include prescribed waste. Condition 6 of Permit No. 890417 states:

"The operation of the Private Rubbish Tip hereby permitted shall be in accordance with the Works Approval of the Environment Protection Authority and the report on environmental studies prepared by Camp Scott Furphy Pty. Ltd. on April 1989 to the Satisfaction of the Responsible Authority."

It is therefore reasonable to conclude that the intention of condition 11 of the planning permit was not intended to prohibit prescribed industrial waste. I have written to the EPA to ask for their advice on this matter as requested.

In regard to the current Works Approval application, Council requested further information from the EPA on 23 January 2004 to determine if further planning approval is required for the proposal. Independent planning advice was received on 19 February 2004 advising that the proposal is consistent with and ancillary to the existing permitted use. On this basis, Council advised the EPA that no further planning permit is required for the proposal on 26 February 2004.

EPA explains to council there are a range of hazards associated with prescribed industrial waste, referring to an A B C framework yet to be implemented.

SITA's EPA Licence ES 511/5 is amended to increase percentage of prescribed industrial waste to 35%. The wastes excluded and permitted essentially remain the same. This amended Licence is not served upon council.

I am writing to provide EPA's view regarding the nature of waste that may be deposited at Lyndhurst landfill under EPA Licence No. ES511.

In regards to the term "hazardous waste", EPA is not aware of any statutory definition for "hazardous waste" in Victorian legislation. EPA Licence No. ES511 is designed to ensure that all prescribed industrial wastes deposited at Lyndhurst landfill are safe for handling and disposal so that human health and the environment are protected. Where necessary, this involves treatment and/or stabilisation of prescribed wastes prior to disposal and to this extent the licence is designed to prevent waste of a "hazardous" nature from being accepted at this facility.

64 It is this argument that SITA and EPA seek to impress upon me to find that Cndition 11 of the planning permits is not breached.

EPA Licence is further amended for the purpose of showing water sampling points.

1.9 With written consent of the Authority the amount of PIW deposited at landfill may exceed the maximum ration of 40% by weight of the total waste placed in landfill in any six month period if it is demonstrated to the Authority that:

i. the effect of the increase in the amount of PIW deposited into the landfill would lead to the earlier closure of the landfill than otherwise likely to occur;

ii. the amount of other waste types deposited at the landfill each month is not significantly reduced as the result of actions by the operators.;

iii. upon closure of the landfill the 35% by weight ratio between PIW and other types of waste is not exceed.

65 Condition 11 of both planning permits prohibits hazardous wastes, and has done so since 1992. 'Hazardous waste' is not defined anywhere in either regime.

66 It is fair to say that some prescribed industrial wastes are generally understood to be hazardous according to common terminology and use of the English language, but not every prescribed industrial waste is necessarily hazardous. The EPA is moving away from the words 'hazardous waste'.

67 Between 1990 and 2003 'hazardous wastes' which were originally prohibited in the Works Approval and EPA Licence have now been removed from the prohibition.

68 Even when 'hazardous wastes' were still prohibited under EPA Licence amended 6/9/91 Condition 3, Condition 2 on the licence allowed for the depositing of 'Schedule B prescribed wastes' some of which clearly are, in ordinary English terminology, 'hazardous' because they contain cyanide, arsenic etc.

69 Conditions 2 and 3 of the Licence amended 6/9/91 appear contradictory, as some prescribed wastes listed in schedule B are hazardous under the ordinary meaning of the phrase, but because of the preamble to condition 3, are still prohibited!

70 The Responsible Authority has tried to explain this away by saying that only those of the prescribed wastes that are not hazardous (in ordinary terminology) are the ones permitted to be deposited. But looking at the list of 'prescribed wastes as listed in Schedule B' list, I think that this explanation simply cannot be sustained.

71 How does one understand this mutation from a prohibited list to a permissible list, with a rider that some other wastes are still prohibited as 'hazardous'?

72 By 2003, wastes which were considered both hazardous and prohibited in 1991 have moved into the permitted condition 2 list expressed in Appendix 1 Table A, with no 'hazardous wastes' prohibited any longer, but 'Appendix 3' wastes prohibited. Not only do the wastes shift, but the language shifts also.

73 Again, how does one understand this mutation in material and movement in language?

74 EPA maintains that its interlocking regime allows for that mutation. The Responsible Authority maintains that the EPA regime is independent of the planning regime, and a new permit is required to overcome the condition 11 plain English language prohibitions.

75 The weight of authority in this field is that words are to be given their natural and ordinary meaning, and this is what the Responsible Authority urges upon me.

76 Both parties provided dictionary definitions of 'hazardous' as 'fraught with hazard or risk; perilous; risky'[12] or 'full of risk; perilous; risky'[13].

77 It is my opinion that the materials contained in Schedule B (1991) or Appendix 1 (2003) of the amended EPA licence are 'hazardous wastes' in ordinary parlance.

78 SITA urged upon me Wollongong CC v Australian Iron & Steel PL[14] ('Wollongong ') as authority for their proposition that the waste deposited is not 'hazardous' because, by virtue of its composition, concentration, volume, treatment, handling or storage poses no risk to human health or the environment, having passed elutriation and closed cup flash point testing.

79 In Wollongong, a permit condition required all 'waste materials' to be hauled to the site by rail. The respondent had been hauling huge quantities of blast furnace slag by road. Council sought a declaration that the permit had been breached. The respondent argued unsuccessfully that:

i

as a use had been discovered for blast furnace slag (construction purposes) it was no longer a 'waste material';

ii

the point in time that one assessed whether the slag was waste or not depended on factors subsequent to its production. If it was saleable, it was not 'waste' but if not saleable and had to be dumped, it was 'waste'.

80 The court held that the slag was a by-product and waste material of the primary process of steel manufacturing and the words have to be read and understood in the context in which they are found[15].

81 Wollongong adopted the same approach to the meaning of words as is common in planning case law:

An over-technical approach to the meaning of the language used in conditions attached to permits and approvals is, as a general rule, not called for[16].

The precise nature of those materials, whether they may be useful to the respondent or useful or saleable to others and in what manner they are dealt with at the site and for what purpose are not considerations to which condition 6 is directed. The condition is directed to the method of transportation as to which such distinctions are immaterial.

83 EPA is trying to do the same here. It says 'the waste is not hazardous because we say so, and we say so because of our testing standards' and then there is a complicated regime of elutriation and closed cup flash point methods. But that is putting the cart before the horse. All this simple permit condition no. 11 seeks to do is to prohibit wastes which, in ordinary parlance, are considered hazardous.

84 In short, Wollongong adopted the meaning of the words in common parlance.

85 One must always remember the admonition expressed by Marks, J in Pacific Seven Pty Ltd v City of Sandringham[17] (_'_Pacific Seven') that laypersons read and administer subordinate planning legislation and instruments:

All this leads me to say that it is desirable to recall that the definition appears in the context of a planning scheme to be administered largely by laymen entrusted to interpret occupational and trade designations in the light of what is understood by common parlance and practices in the fields trades or areas concerned.

..........

Planning is a difficult exercise with flexibility as essential ingredient. Those entrusted with its implementation should bear in mind that neither individual nor community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning.

86 Pacific Seven was concerned with the meaning of a defined phrase 'service premises' in a planning scheme. Although Pacific Seven was not concerned with the (different) subject of 'non conforming use rights' it relied upon the High Court in Shire of Perth v O'Keefe & Anor_[18]_ to enunciate the famous 'purpose' test in planning law:

The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of the processes of activities or through a precise cataloguing of individual items of goods dealt in, but by asking what according to ordinary terminology[19] is the appropriate designation of the purpose being served by the use of the premises at the material date.

87 Marks, J conceded that the High Court there considered a by-law and a problem which was different from that before him. But he continued:

The law sets its face against a tightly rigid interpretation of words which do not themselves or their context require.

88 Although I accept implicitly the expertise of the EPA in assessing whether these hazardous wastes are safely deposited into landfill, the issue is whether hazardous wastes considered 'acceptable' under a different regime should be adopted as the test of what constitutes 'hazardous wastes' in the planning permit regime.

89 I now turn to EPA's reliance on interlocking regimes.

90 EPA's thesis is that wastes, which on their face appear to be 'hazardous wastes' prohibited by Planning Permit Condition 11, are not hazardous by virtue of the interlocking statutory regime between the Environment Protection framework and the Planning framework, or by virtue of the expertise and technical restrictions placed by EPA on its licences.

91 EPA maintain that its interlocking system means that the way it interprets 'hazardous wastes' should hold sway above the ordinary and natural meaning of the words. EPA's interpretation is dependent upon a level of containment, such that a product that would otherwise be hazardous becomes "acceptable" if it can be safely handled and deposited into landfill. It is, inter alia, the elutriation tests and the closed cup flashpoint tests, which determine that outcome.

92 But in my opinion, EPA does not define 'hazardous wastes' any differently to the ordinary meaning of the words. It just differentiates between acceptable or unacceptable wastes.

93 Mr Molesworth QC for EPA relied upon condition 6 to prove the interlocking system between the two permissions. Condition 6 reads:

The operation of the private rubbish tip hereby permitted shall be in accordance with the works approval of the Environment Protection Authority and the report on Environmental Studies prepared by Camp, Scott, Furphy Pty Ltd on April 1989 to the satisfaction of the Responsible Authority.

94 But as we have seen, there is no vacuum-sealed interlocking system of permissions between PE A and EPA. Licence amendments without concomitant Works Approvals, do not need referral under the EPA regime. This is what happened in 2003, when there was a major shift in the Licence and 'hazardous waste' was dropped from the prohibited list.

95 I agree with the Responsible Authority's submission that wastes which are commonly understood on the plain and natural meaning of the words to be 'hazardous wastes' and prohibited under the planning permit, do not become non-hazardous because of an interlocking environment protection regime. They are two independent, albeit related, regimes.

96 These wastes remain hazardous; they just become acceptable or unacceptable to EPA under a different regime.

97 Pointedly, in Pacific Seven, Marks J quoted three High Court decisions:

If there are two possible constructions, one working a manifest injustice and the other not, then I think the latter construction is the one which should be adopted[20];

Where an enactment is susceptible of two constructions regard must be had to the general object and purpose of the Act[21];

In construing an instrument where its words are susceptible of two meaning it is always legitimate to take into account reasonableness, justice and consistency on the one hand and unreasonableness, injustice and inconsistency on the other[22].

98 I use the expression 'pointedly', because adopting the meaning attributed by EPA and SITA would exclude neighbours from the planning process, as the EPA public participation processes are extremely limited. The two legislative regimes have completely different standards of third party rights.

99 Both regimes have similar objectives, but the planning regime specifically provides broad third party public participation rights[23] in the assessment of proposals that attract planning permission.

100 According to the ordinary use of language, 'hazardous wastes' are wastes which are risky or perilous. In my opinion, the hazard of any particular waste is to be assessed by reference to the inherent characteristics of the waste and not by reference to methods of treatment, handling or storage.

101 It is also my opinion that even the EPA does not consider the wastes 'not hazardous' it just classifies them as 'acceptable' wastes or prohibited wastes.

102 EPA and SITA submit that the Responsible Authority knew all along of all the WA's and licence amendments applied for by SITA to EPA because of the inter-referral system, tacitly acquiesced to them, and should not complain now that planning permission is required.

103 EPA and SITA maintain that the Responsible Authority should not be granted its declarations, pursuant to the equitable doctrine of laches, which highlights the Responsible Authority's delay in prosecuting breach of condition 11 or even raising any doubt about the depositing of hazardous wastes into the landfill. The Responsible Authority acquiesced for fifteen years in this activity.

104 The Responsible Authority counters that until 2003, when the EPA unilaterally amended the Licence by deleting 'hazardous wastes' as a prohibited deposit, without being required to refer to council, it thought the Licence was consistent with planning permissions.

105 The Responsible Authority counters that it had no knowledge of the 2003 licence amendment as there was no inter-authority referral.

106 I have already mentioned my opinion of the Responsible Authority's attitude to the 1991 licence amendment. It seems to me that as far back as 1991, Council relied upon persuasion by EPA that there are classes of 'acceptable' and prohibited hazardous wastes.

107 In Remedies[24], the authors doubt whether the general equitable defences, such as unclean hands, are relevant, citing Meagher, Gummow & Lehane Equity Doctrines and Remedies[25].

108 MJ Tilbury, the author of Civil Remedies[26], mentioning that equitable relief is not strictly applicable[27], nevertheless considers there seems no reason why the traditional equitable considerations (eg clean hands)[28] should be excluded from the court's discretion if their application is warranted in all the circumstances of the case. The contrary view seems to be based on the fallacy that there is something inherently particular to equitable discretions which justifies their application only in equitable proceedings.

109 The authors of Principles of Remedies[29] relied upon Ainsworth v Criminal Justice Commission[30]:

Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. ...relief will not be granted if "the court's declaration will produce no foreseeable consequences for the parties".

110 1.5 million cubic metres of tipping space is left in the Lyndhurst landfill, with room for approximately 450,000 cubic metres of prescribed industrial waste. This translates into approximately six years of tipping left. In short, the grant of a declaration is not hypothetical exercise.

111 Macnamara DP in Wendy Cook v Melbourne CC_[31]_ was faced with a similar dilemma where a declaration of invalidity would prejudice a party (the permit holder) who had no control over council's failure to exercise its statutory duty (to issue a NOD containing notice of appeal rights and time limits. Nevertheless, Macnamara DP granted the declaration, holding that otherwise the objective of the legislation to grant the applicant neighbour rights of review would be subverted.

112 The planning permit prohibits the deposit of hazardous wastes, as understood in it natural and ordinary meaning. The EPA licence permits the deposit of materials that in the common meaning of the word is hazardous. The difference is that stringent EPA testing regime separates hazardous wastes into 'acceptable' and 'non-acceptable' or 'prohibited' wastes.

113 Council now seeks a declaration that SITA is in breach of condition 11 of its two planning permits, even though it has acquiesced in this activity for fifteen years. Notwithstanding this inconvenience to SITA, the Responsible Authority, as the corporate representative of the residents near the Lyndhurst landfill should not be denied the benefit of a declaration. To do otherwise, would subvert the rights of residents around the Lyndhurst tip by depriving them of their third party rights in the planning regime.

114 I remind the respondents of the Order of Gibson DP dated 8 February 2006, giving them leave to file and serve s.87 applications under the PEAct 1987, to amend their two planning permits.

[1] (1988) 67 LGRA 51 per Holland, J

[3] Residents Against Toxic Waste In The South East

Environment Protection (Prescribed Waste) Regulations 1987

Environment Protection (Prescribed Waste) Regulations 1998

Environment Protection (Prescribed Wastes) (Amendment) Regulations 1988

Environment Act 1987

Greater Dandenong CC v Sita Australia PL [2006] VCAT 1361 (11 July 2006)

Greater Dandenong CC v Sita Australia PL [2006] VCAT 1361

At a glance

Court

Decision date

Source

Judgment (129 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)

Greater Dandenong CC v Sita Australia PL [2006] VCAT 1361 (11 July 2006)