Greater Geelong CC v C and D Recycling Pty Ltd [2018] VCAT 452

Greater Geelong CC v C and D Recycling Pty Ltd [2018] VCAT 452 - VCAT 2018 case summary — Zoe

[24]

In support of its application, the Council had filed or presented witness statements and material including the following:
- Statement of Joshua Trowell (Council officer) dated 15 December 2017. This statement followed an inspection of the land on the same day, and noted particular breaches of the Permit.
- Statement of Joshua Trowell (Council officer) dated 9 February 2018. This statement also followed an inspection of the land on the same day, and noted ongoing breaches of the Permit.
- Record of 'Compliance Communications History' for the period from 9 August 2016 (the date of issue of the Permit) until 3 July 2017, outlining relevant meetings and emails between the Council and CDR and its representatives, produced during the oral evidence of Joshua Trowell.
- Council officer inspection reports comprising reports by:
  - officer Michael Morgan dated 14 November 2017.
  - officer Leon Websdale dated 21 December 2017.
  - officer Leon Websdale dated 2 February 2018.
  - officer Michael Morgan dated 9 February 2018.
- Witness statement and evidence of Matt Allen (CFA officer, and the CFA's State Infrastructure and Dangerous Goods Team Leader) comprising:
  - statement for Council dated 14 December 2017.
  - review of permit conditions.
  - letter to CFA dated 6 September 2017.
  - email correspondence to Council dated 15 December 2017.
  - CFA Primary Incident Report dated 22 February 2018.
- Statement of Ben Poole (EPA officer, and the EPA's compliance strategist (South West Region)) dated 22 February 2018, including attachments comprising:
  - amended Pollution Abatement Notice dated 7 November 2017, issued under s 31A(5) of the Environment Protection Act 1970..
  - Clean Up Notice dated 6 November 2017, issued under s 62A of the Environment Protection Act 1970.
  - a short video taken from a drone flyover of the land, showing the various materials stockpiles.
Mr Trowell and Mr Poole also gave oral evidence at the hearing and were subject to cross-examination. Mr Poole's video was also shown at the hearing. Mr Allen was unavailable to attend at the hearing. Oral evidence in relation to his statement and material was given by Patrick Geary (CFA officer, and the CFA's Operations Officer (Corio Region)). Mr Geary had personal knowledge of CDR's operations on the Land, and the matters in Mr Allen's statement, and he was subject to cross-examination.
All of this material forms part of the Tribunal's file, and we will not analyse it in detail for the purposes of this interim order and reasons. It is perhaps sufficient to state at this stage that, with one limited exception, we accept the entirety of the evidence contained in the statements and other material from the Council, EPA and CFA outlined above, and in the oral evidence from Mr Trowell, Mr Poole, and Mr Geary.
For the record, the limited exception relates to the extent of a fire in one of the stockpiles on 10 January 2018, and the extent of the CFA response. Mr McAuliffe claimed that the fire was already out by the time the CFA arrived. Mr Geary disputed this, but readily conceded that the fire was relatively small and quickly subdued. Little turns on this. We accept Mr Geary's evidence that the existence of any fire in one of the stockpiles confirms the CFA's position that the Land represents a high-risk site, exacerbated by CDR's ongoing non-compliance with the CFA and other fire safety and risk management conditions in the Permit.
Having regard to the experiences of the CFA and EPA in relation to a much larger fire in a materials recycling plant at Coolaroo in mid-2017, we also accept Mr Geary's evidence that the risk of fire on the Land is correctly rated as 'likely' and the consequences of such a fire could be 'catastrophic' in terms of the potential impact on the environment and human health, and in terms of the impact on state and local government resources. This leads to the high-risk rating for the Land. The risk would be substantially reduced if CDR complied with all of the fire safety and risk management conditions in the Permit, and implemented the works required to give effect to those conditions.
Mr Geary's assessment is corroborated by another CFA officer Rohan Luke, whose somewhat prescient correspondence to the Council in December 2017 (which preceded the January 2018 fire) is included in the written statement of Mr Allen as follows:

[27]

Although this chart indicates those conditions of the Permit that have been breached, it represents a summary only of the material before us, and needs to be read in conjunction with the very detailed material presented by the Council, EPA and CFA in relation to each breach. By way of example:
- although we have simply recorded above a breach of Condition 4 of the Permit in relation to 'maximum stockpile heights', which are required to be no more than 9 metres, the Council's licensed surveyors had prepared a survey plan of the site on 13 December 2017 (forming part of the material before us) showing that seven of the stockpiles had recorded heights of 10.19m, 10.69m, 12.62m, 11.05m 9.71m, 11.78m and 11.4m respectively. Visual inspections on 15 December 2017 and 9 February 2018 did not show any discernible reduction in the stockpile heights.
- although we have simply recorded breaches of the CFA conditions included in the Permit, the evidence of the Council officer Mr Trowell and the CFA officer Mr Allen detail each of these breaches, and Mr Allen also details the 'CFA priorities' arising from such breaches, where the CFA considers some 'immediate' or 'short-term' action is required (i.e. within 15 or 30 days) in relation to some breaches such as the provision of water and fire-fighting equipment and access. [This led in part to the making of the interim enforcement order in December 2017.]
We find that the breaches of the relevant conditions of the Permit summarised in the chart are all established on the evidence. As indicated, we intend to adopt this evidence and our findings in the enforcement proceeding, and in our final determination in this proceeding.
We do not consider our findings to be at all surprising or controversial. The evidence of the Council, EPA and CFA officers about particular permit breaches was largely uncontested. TASCO, in its capacity as the owner of the Land, concedes that its lessee CDR is in breach of the relevant conditions of the Permit. Even CDR itself largely concedes the breaches of the relevant conditions of the Permit, and it led no evidence nor made any submissions to the contrary. Mr McAuliffe indicated that he was more concerned with looking to a way out of his current predicament through opportunities to create a sustainable off-take market to reduce the existing stockpiles, rather than contesting specific breaches of the Permit. He suggested that it was only through the creation of a sustainable off-take market that he could fund the necessary works to comply with the Permit.

[30]

Section 87 of the Planning and Environment Act 1987 authorises the Tribunal to cancel or amend a permit in one of six circumstances including, under s 87(1)(b), if the Tribunal considers that there has been 'any substantial failure to comply with the conditions of the permit'.
Whilst we have made several findings above in relation to proven and conceded breaches of the Permit, it still remains for us to determine whether the breaches, individually or collectively, represent a 'substantial failure to comply' with the conditions of the permit. It is apparent from the evidence that some breaches of conditions of the Permit are more serious than others. We have reserved that aspect of our decision, and make no findings on that matter at this stage.
Our jurisdiction under s 87 is discretionary, and we must also take into account certain matters, including by reference to s 90A. We have also reserved this aspect of our decision, along with our ultimate decision as to whether or not to cancel the Permit.
The reason for reserving these aspects of our decision is that the discretionary nature of our jurisdiction, and the particular circumstances of this matter, present us with a dilemma. If we are minded to cancel the Permit, as requested by the Council, what would be the consequence of such a decision? The stockpiles of material would still be present on the land, without adequate fire safety mechanisms in place. There is some evidence that the removal of the stockpiles, presumably by disposal to landfill, could cost up to $100 million and take at least 18 months to undertake. Who would undertake this, and at whose cost? What is the risk that CDR and Mr McAuliffe will simply walk away from the site if the Permit is cancelled? Even though the cancellation of the Permit under s 87 is a live option that is very much open to us, we are reluctant to make a decision in that regard without better understanding its consequences. This, in our view, cannot occur in isolation from a consideration of the enforcement proceeding where additional or alternative mechanisms for compliance are proposed.
A secondary part of the dilemma relates to the position of TASCO. The Permit technically runs with the land rather than solely with CDR as the occupier. If the Permit is cancelled, and no materials recycling can continue on the Land at all, even on some modified basis, does this restrict TASCO in the way in which it might seek to deal with its obligations (if any) arising from breaches of conditions of the Permit by its lessee CDR. TASCO has made submissions to us that suggest a more reasonable approach would be to retain the Permit to facilitate a staged solution that would allow some waste processing to be undertaken on the Land over the next 3 to 5 years. Again, in our view, we do not believe that we can properly consider these and other issues raised by TASCO in isolation from a consideration of the enforcement proceeding, and a better understanding of the consequences of cancellation of the Permit.
Moreover, whilst the CFA and EPA tacitly support the Council in its application, it is clear from their respective submissions and evidence that both agencies are primarily concerned with compliance.
For these reasons, having regard to the inter-relationship of this proceeding and the enforcement proceeding, we consider that the two proceedings should be determined in conjunction with each other. Hence the interim orders that we have made.

At a glance

Court

Decision date

Source

Judgment (34 paragraphs)

Greater Geelong CC v C and D Recycling Pty Ltd [2018] VCAT 452 (27 March 2018)

Parties

Legislation Cited (3)