Note: Although this proceeding P2317/2017 was heard together with proceeding P1741/2017 (an application by C&D Recycling Pty Ltd to amend the permit), a separate order will be issued in that other proceeding.

For The Australian Sawmilling Company Pty Ltd (TASCO)

Application by responsible authority under s 87 of the Planning and Environment Act 1987, seeking to cancel permit PP-163-2015 due to alleged substantial failure to comply with the conditions of the permit.

Design and Development Overlay - Schedule 18 (Geelong Ring Road Employment Precinct)

The Land at 300-400 Broderick Road, Lara comprises two irregularly shaped allotments, both oriented to Broderick Road, with a combined site area of approximately 14.49 ha.

1. C&D Recycling Pty Ltd (CDR) operates a materials recycling business on land at 300-400 Broderick Road, Lara (Land).
2. In August 2016, VCAT directed Greater Geelong City Council (Council) to issue a planning permit PP-163-2015 (Permit) to formalise the use and development of the Land for 'materials recycling', subject to conditions[2].
3. The Council, in its capacity as responsible authority under the Greater Geelong Planning Scheme, has now made application under s 87 of the Planning and Environment Act 1987, seeking to cancel the Permit due to alleged substantial failures to comply with the conditions of the permit.
4. This interim decision and reasons are concerned solely with this s 87 application.
5. For the record, we note that:
   • in a related proceeding P1714/2017 heard at the same time, we have separately dismissed a request by CDR to amend the Permit[3].
   • in another related proceeding P2315/2017, listed for hearing on 11 & 12 April 2018, the Council has made application under s 114 of the Planning and Environment Act 1987 to enforce conditions on the Permit (the enforcement proceeding). An interim enforcement order is in place pending that hearing.
6. At the conclusion of the hearing of the s 87 application, we indicated to the parties that we had formed the view that we could not finally determine that application in isolation from hearing and determining the enforcement proceeding. This interim decision and reasons is intended to give some context to that view, and to make a number of initial findings on the evidence and material put to the Tribunal at the hearings on 1 & 2 March 2018. This will assist in providing a basis for a final determination of the s 87 application in conjunction with the enforcement proceeding, when those matters are heard further on 11 & 12 April 2018.

1. For the purpose of the proceeding, we make the following initial findings. There being no objection from the parties, we propose to also adopt these findings in the enforcement proceeding involving the same parties.
2. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 allows us to inform ourselves as we see fit, and to admit into evidence any material put before the Tribunal in another proceeding, if we consider it desirable to do so. We certainly consider it desirable to avoid the same evidence and material (including detailed witness evidence from Council, CFA and EPA officers) having to be put again before the same Tribunal members in related proceedings concerning the same parties within a relatively short timeframe.

1. As we have indicated, CDR operates a materials recycling business on the Land. Mr David McAuliffe is the sole director of CDR.
2. Although CDR occupies the Land, the Land is owned by The Australian Sawmilling Company Pty Ltd (TASCO). TASCO also owns adjacent land which it is seeking to subdivide and sell.
3. In 2013, Central Demolition Recycling and Plant Hire Pty Ltd (a predecessor or related entity of CDR, of which Mr McAuliffe was also the sole director) leased the Land from TASCO, and commenced to operate a materials recycling business under a temporary permit P102B/2013B.
4. In 2015, the Council refused an application by CDR to extend the temporary permit. There was then a number of inter-related proceedings before VCAT. TASCO undertook enforcement action against CDR for breaches of the temporary permit. An initial enforcement order was made by consent, with the Council later seeking to amend the enforcement order (to include TASCO as a respondent, as owner of the land) and to cancel the temporary permit on the basis of ongoing breaches. CDR also sought to amend the enforcement order, theoretically to allow for finalisation of operations and the removal of all materials by 1 December 2017.
5. During the same time period, CDR also applied for a new permit. The Council failed to determine the application. As we have indicated, in August 2016, VCAT directed the Council (Council) to issue the Permit to formalise the use and development of the Land for 'materials recycling', subject to conditions.
6. The Permit included important conditions required by the Country Fire Authority (CFA) and the Environment Protection Authority (EPA) to deal with fire risks, and other risks to the environment or human health. The Permit also included other conditions relating to site surveys, stockpile heights, landscaping works, and various site and materials management plans.

1. The Land now contains large stockpiles of mixed construction and demolition waste including concrete, timber, hard and soft plastics, tyres, cardboard, carpet, foam and metal, and smaller stockpiles of timber, mulch, medium density fibreboard, plasterboard, mixed fines.
2. Little (if any) materials recycling is actually taking place on the Land, and little (if any) material or waste is currently being transferred or removed from the Land.
3. Both the CFA and the EPA have serious concerns with fire safety and risks to human health, and other risks associated with the current stockpiles, arising in part from an ongoing breach of conditions of the Permit by CDR.
4. Some of the materials stockpiles exceed the permitted height of 9 metres. Apart from visual and environmental concerns, the excess height would create additional difficulty to the CFA in accessing a stockpile with appropriate equipment in the event of a fire, and thus increases the fire safety risk.
5. CDR had allowed another entity Metro Recycling Pty Ltd (Metro) to conduct activities on the site during part of 2017, with the intention of potentially transferring ongoing operations on the land to Metro. Metro had, in turn, engaged EnviroProtect (Vic) Pty Ltd, environmental scientists, to conduct site investigations in relation to the stockpiles. Both the Council and TASCO accessed a copy of EnviroProtect's report dated October 2017, and a copy of the report was tendered to the Tribunal.
6. The EnviroProtect report is clearly marked as a 'Preliminary Investigation', and some of the information in the report relating to specific stockpiles is summarised in the table below. The location of the numbered stockpiles is included in the plan attached to the report.

Woods, plastics, plumbing fixtures, carpeting, tiles, furniture, insulations, vinyl flooring, used tyres, domestic waste, metals scraps, asbestos, construction debris, soil, electrical appliances

Timber woods, used tyres, large oak woods, plasterboard is, metals scraps

Construction materials such as bricks, concrete, metal rods/steel bars, scrap metals and used tyres

Woods, plastics, plumbing fixtures, carpeting, tiles, furniture, insulations, vinyl flooring, used tyres, metals scraps, asbestos, construction debris and soil

Asbestos, tyres, soil (unclassified - potentially contaminated)

Woods, trees, timbers, mulch, cupboards, plasterboard's, plastics, tiles, vinyl flooring, used tyres, construction mixed debris and soil

Tyres, soil (unclassified - potentially contaminated)

Woods, plastics, carpeting, tiles, insulations, metals scraps, asbestos, construction debris and soil

Asbestos, soil (unclassified - potentially contaminated)

1. Some of the stockpiles have changed in their size since EnviroProtect's inspection on 25 October 2017, but the information in the preliminary investigation report remains indicative of the make-up of the stockpiles on the Land. It is self-evident that the size and composition of some stockpiles is more significant than others.
2. Although EnviroProtect has listed materials such as concrete and tyres as 'non-permitted', it has indicated it has done so without access to all applicable documentation. It is not yet apparent to us that the Permit expressly excludes materials such as concrete or tyres from being deposited or recycled on the Land, and this may be a matter for submission at the further hearing. The composition of some of the stockpiles potentially triggers environmental concerns beyond the scope of our planning considerations and the Permit. [We note separately below that the EPA has issued a Pollution Abatement Notice and Clean-Up notice for the Land.]
3. EnviroProtect concludes, however, that the presence of 'unaccepted materials' (sic) including asbestos, over 4,000 tyres, potentially contaminated soils, and concrete, have resulted in cross contamination with other materials, with the potential that entire stockpiles could be deemed contaminated and not able to be recycled.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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:

There is a high risk of ignition with likely causes being lightning strike, arson, machinery breakdown, external fire burning into the site and spontaneous combustion. CFA rates the likelihood of a fire event at this site as likely. Any fire that cannot be extinguished in a first attack would become a complex and long duration fire that would have a severe impact on the surrounding community, including the national and state rail networks and major highways leading into Geelong.

1. The Council's submissions usefully summarised the evidence of its officers, together with the evidence of the CFA and EPA officers, into a chart that indicates the breaches of particular conditions in the Permit as at the date of the two main site inspections on 15 December 2017 and 9 February 2018. For convenience, and in order to make findings on the evidence, we set out relevant parts of that chart as follows:

1. 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.]
2. 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.
3. 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.

Findings about breach of interim enforcement order

1. In December 2017, VCAT made an interim enforcement order[4] requiring CDR and Mr McAuliffe to immediately cease accepting any further material whatsoever onto the Land, to ensure that all times an operational excavator, bulldozer and 4000L water tanker remained on the Land.
2. Given this relates to the enforcement proceeding, we will not say too much about the issue at this stage, pending the hearing of the enforcement proceeding, save to note that the evidence of Mr Trowell is that, as at the date of his inspection on 9 February 2018:
   • the excavator was not on the Land.
   • a water tank was on the Land but was not operational. Mr McAuliffe admitted that the water tank had not been operated on the land since 22 December 2017 and that the water tank it did not hold any water.
   • CDR and Mr McAuliffe had failed to comply with undertakings given to the Council to complete the construction of a dam for fire-fighting purposes, to provide two trained staff to be present on the Land for a minimum of 16 hours a day as first fire responders, and to provide temporary fire-fighting equipment for use by those first responders.

1. 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'.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with VCAT practice, not all of this material is cited or referred to in these reasons.

[2] C&D Recycling Pty Ltd v Greater Geelong CC [2016] VCAT 1207 (Members Bennett & David)

[3] C&D Recycling Pty Ltd v Greater Geelong CC [2018] VCAT 451

[4] Orders made by Acting Deputy President Rickards on 22 December 2017 in proceeding P2315/2017.