1. Applications P448/2016 and P672/2016 are adjourned for administrative mention on 14 October 2016. By that date each party must advise the Tribunal in writing:
   • whether the matter is resolved or is proceeding to a hearing;
   • if that party is ready for a hearing;
   • whether the hearing scheduled to commence on 24 October 2016 is likely to proceed;
   • whether any other procedural orders are required; and
   • whether a further directions hearing or mention is requested.

1. Any party may request that the administrative mention be converted to a Practice Day Hearing. The party making the request must file and serve a Practice Day Request in accordance with Practice Note PNPE6 - Practice Day.

Mr Chris Canavan QC and Ms Clare Exell of counsel, instructed by Adam Bisits, solicitor.

• Dr Peter Nadebaum, chemical engineer and environmental auditor, GHD Pty Ltd

• Timothy David Faragher, Manager Developments Assessments Unit, Environment Protection Authority
• Karen Anne Wilson, Manager Waste And Resource Recovery Planning, Sustainability Victoria
• Vanessa Anne Petrie, Director of Strategy and Projects, Metropolitan Waste and Resource Recovery Group

Introduce a solid inert waste stream to the existing waste management facility at the subject land.

Application under Section 36D Environment Protection Authority 1970 - application for declarations.

The property at 600 Sunbury Road, Bulla is a large site (260 ha), which has been used for quarrying and landfill for many years. An extractive industry licence in respect of the quarrying activities on the land was first issued in 1969. A landfill licence was issued to the prior landowner in 2001. The applicant currently operates a Type 2 landfill which is licensed to receive prescribed industrial waste (PIW). Other ongoing activities on the land include grazing, quarrying and a large green waste reprocessing facility.

1. This proceeding arises in the context of two other proceedings by Hi-Quality Quarry Products Pty Ltd ('Hi-Quality') against the Environment Protection Authority ('EPA'):
   • Application P448/2016 - application under section 33(1)(b) of the Environment Protection Act 1970 ('the Act') for review of the EPA's failure to determine Hi-Quality's application for works approval ('works approval application').
   • Application P672/2016 - application under section 33A(2)(b) of the Environment Protection Act 1970 for review of the EPA's failure to determine Hi-Quality's application for licence amendment ('licence amendment application').
2. Hi-Quality made an application to the EPA on 28 November 2014 to amend licence 45279 to include solid inert waste ('SIW') as a new waste type permitted to be deposited at Hi-Quality's existing waste management facility at the subject land.
3. On 12 February 2015 EPA indicated to Hi-Quality that pursuant to section 20A(3)(b)(ii) of the Act it would not deal with the applicant's licence amendment application because it considered a works approval was required ('the first decision').
4. Hi-Quality then made an application to the EPA for a works approval on 29 July 2015.
5. Following a number of extensions of time, on 11 February 2016 EPA indicated to Hi-Quality that it refused to consider the works approval application pursuant to section 50C(1)(a) of the Act because it considered the application was inconsistent with the relevant State-Wide Waste and Resource Recovery Infrastructure Plan ('the second decision').
6. With respect to the two applications for review, the EPA contends that the Tribunal cannot review a decision of the EPA to refuse to consider a works approval application or a licence amendment application.

1. Before the applications for review can be considered on their merits, the question of the Tribunal's jurisdiction needs to be resolved. In this context, the present application P675/2016 has been lodged pursuant to section 36D of the Act seeking the following declarations:
   1. a declaration by the Tribunal that its application to the respondent to amend licence 45279, dated 28 November 2014, and particularised below, does not relate to a matter in respect of which a works approval is required, for the purpose of s 20A(3) of that Act.

Licence 45279 issued by the respondent (i) allows "prescribed industrial waste (Category C drilling mud, Category C soil and asbestos)" to be deposited at 600 Sunbury Rd, Bulla; (ii) allows recovery of solid inert material recycling and production of road base, aggregates and sand products. The licence is subject to conditions. The licence is under s 20 of the Environment Protection Act 1970.

The applicant's application to amend that licence proposed the insertion of a new waste type, namely solid inert waste, in schedule 2 of the licence as an acceptable waste for disposal into Cell 2 stages 2 and 3. Further the application stated "(n)o new works are required for this waste to be accepted at the site".

1. a declaration by the Tribunal that the respondent's decision of 12 February 2015, in its letter to the applicant of that date, ... was of no force or effect for the purpose of a s 20A(3)(b)(ii) of the Environment Protection Act 1970;
2. a declaration by the Tribunal that the operations of the waste management facility of the applicant at 600 Sunbury Rd, Bulla, in accordance with the foregoing licence amendment if granted or in accordance with a works approval [in accordance with the works approval application] would not be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan, for the purpose of s 50C(1)(a) of the Environment Protection Act 1970;

1. a declaration by the tribunal that the respondent's decision of 11 February 2016 was of no force or effect for the purpose of s50C of the Environment Protection Act 1970.
2. Put more simply, the issues that the Tribunal must resolve by way of these declarations are:
   • Is a works approval required for the proposed licence amendment?
   • Was the EPA entitled to refuse to deal with the licence amendment application pursuant to section 20A(3)(b)(ii) of the Act on the basis that a works approval was required?
   • Is the works approval application inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan?
   • Was the EPA entitled to refuse to deal with the works approval application pursuant to section 50C(1)(a) of the Act on the basis that the operations of the facility for which a works approval application is made could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan?
3. The EPA says that because the Act does not confer jurisdiction on the Tribunal to review a decision of the Authority to effectively refuse to consider a licence amendment application under section 20A(3)(b)(ii) or to refuse to consider a works approval application under section 50C, the Tribunal does not have jurisdiction to make any declarations. Section 36D, only confers jurisdiction on the Tribunal to make a declaration concerning a matter that may - at the time the application for that declaration was filed - have been the subject of an application to the Tribunal under the Environment Protection Act 1970.

1. The jurisdictional issues raised by the EPA in this declaration proceeding have important implications and potential consequences for the accountability of the Authority and access to justice by persons making applications for works approvals, licences or amendments to licences.
2. If the Authority is right in its contention that the Tribunal lacks jurisdiction in cases such as this, it means that the Authority would be able to avoid scrutiny of much of its decision making with respect to the way in which works approval and licence applications are handled. By the simple expedient of the EPA refusing to consider them, applicants would be left without any recourse to challenge the Authority's reasons for such decision or to have the merits of their applications considered.
3. The EPA's use of provisions in the Environment Protection Act 1970 to refuse to consider certain types of applications and to then say that there can be no review either of the merits of the application or the veracity of the basis on which the Authority has refused to consider the applications, represents a departure from the principle contained in section 32 of the Act making VCAT the forum for resolving disputes under the Act.
4. I do not consider that this scenario represents Parliament's intention under the Act when the Environment Protection Act 1970 is read holistically and regard is had to the provisions of the Victorian Civil and Administrative Tribunal Act 1998 for the following reasons.

At the time of making application was there a matter that may be subject of an application to VCAT?

1. The application for declarations in this proceeding is made under section 36D of the Act, which provides as follows:

(1) A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning any matter which may be the subject of an application to that Tribunal under this Act.

(2) On an application under subsection (1) the Tribunal may make any declaration it thinks appropriate in the circumstances.

(3) The Tribunal's power to make a declaration under this section is exercisable only by a presidential member of the Tribunal.

1. The EPA submits that section 36D only confers jurisdiction to make a declaration concerning a matter that may - at the time the application was filed - have been the subject of an application to the Tribunal. This submission reflects what was said by Deputy President Dwyer in Ileowl Pty Ltd v Environment Protection Authority[1] in which he held that the words may be in section 36D did not allow VCAT to exercise jurisdiction on an expected or anticipatory basis, where the circumstances for an application to VCAT under the Environment Protection Act 1970 had not yet arisen.
2. In Ileowl, the application for declaration concerned the need for a works approval. The applicant contended that there was no need for a works approval and no application for a works approval had been made. In considering this situation, Deputy President Dwyer said:

[13] The question of jurisdiction therefore hangs on the words in s 36D about a matter which 'may be' the subject of an application to VCAT. Do these words broaden the jurisdiction of VCAT to make a declaration about something that might prospectively become the subject of a future application for review to VCAT under the EP Act? Ileowl contended that the utility of the declaration power in s 36D would be diminished if a reviewable decision needed to exist as an effective pre-condition to the use of s 36D, as an applicant would instead simply undertake that review.

[14] Given what I have said above, I am not convinced that the words 'may be' in s 36D can be read in such broad fashion as Ileowl suggests. I prefer the EPA's contention that s 36D should be read as conferring jurisdiction only concerning a matter that may - at the time the declaration is sought - be the subject of an application to VCAT. That does not however mean that the other application must have already been made. But the circumstances must already reasonably exist for that other application.

[15] The EPA properly conceded that, if an application for a works approval was made and decided (even if refused), it would be open for an applicant to seek a declaration that the works approval had not been required. There would then be a matter that may be the subject of an application for the purposes of s 36D. However, here, there is no decision on a works approval, or even a works approval application.

1. The circumstances in the present case are quite different. This application, P675/2016, was made on 1 April 2016. On the same day, Hi Quality lodged its licence amendment application P672/2016. Its works approval application P448/2016 was previously lodged on 3 March 2016. In each case, these applications to VCAT and the applications to the EPA relevant to the VCAT applications had been made before the section 36D application.
2. Thus the circumstances in the present case can be distinguished from those in Ileowl where no application to the EPA had been made, and indeed there were no circumstances that would have enabled any application for review to be made by Ileowl under the Act.
3. On the face of it, it would therefore seem that the circumstances which would enable another application to VCAT under the Act already presently exist, and indeed such applications have already been made. However, if the EPA is implying that any application to VCAT must be a valid application, i.e. one that the Tribunal has jurisdiction to determine, before a declaration about jurisdiction under section 36D can be made, and the validity of such application is disputed, this is a different scenario and creates something of a catch-22 situation.
4. What the EPA seems to be saying is that because there is no specific right of review for these matters under the Act, the Tribunal has no jurisdiction to review or make declarations about:
   • EPA's refusal to consider the licence amendment application under section 20A(3)(b)(ii) on the basis that a works approval is required; or
   • EPA's refusal to consider the works approval application under section 50C because it could be contrary to the State-Wide Waste and Recovery Infrastructure Plan.

It must simply be accepted that this is what the EPA has done and this is an end of the matter. The basis for the EPA making a decision to not consider or to refuse to consider applications under either of these provisions can never be challenged.

1. Therefore, if the Tribunal does not have jurisdiction to review such matters, the applications for review made to VCAT are not valid applications. There has been no refusal or failure to amend the licence or issue a works approval because the EPA has not considered the merits of the applications or made a decision about them. Consequently they cannot be the proper subject of an application for declarations under section 36D.
2. In my view, the EPA's position that the Tribunal has no jurisdiction to make declarations about the validity of the applications for review cannot be sustained for several reasons.
3. First, the argument overlooks the fact that if the section 36D application had not been made, it would have been necessary in any event for the Tribunal to make rulings on the question of jurisdiction in the context of those applications for review.
4. In any proceeding, if a question of jurisdiction is raised, the Tribunal must rule upon it. The Tribunal has the power to do this either as a necessary component of its decision making role or pursuant to section 124 of the Victorian Civil and Administrative Tribunal Act 1998.[2] This must entail an ability to examine and rule upon the basis of why it is alleged that the Tribunal lacks jurisdiction. To do so, the Tribunal must be able to make findings about any jurisdictional facts said to be the basis of why there is no jurisdiction. For example, if there is an application to review the failure to amend a licence and the EPA says it did not need to consider the application because a works approval is required and has not been obtained, the Tribunal must be able to determine if this fact regarding the need for a works approval exists in order to rule upon whether it has jurisdiction or not.
5. In support of the Tribunal's powers in this respect, section 4 of the Victorian Civil and Administrative Tribunal Act 1998 operates to cut the 'Gordian Knot' of an argument such as that put forward by the EPA. This is an argument that says if the Authority refuses to make a decision about an application and there is no specific right of review of that refusal, then the Tribunal has no jurisdiction to review the application made to the Authority either on the basis of its refusal (or failure) or on its merits, thereby avoiding any scrutiny of the Authority's refusal to make a decision.
6. Section 4 of the Victorian Civil and Administrative Tribunal Act 1998 provides, relevantly, as follows:
   1. When does a person make a decision?

(1) For the purpose of this Act or an enabling enactment, a person makes a decision if the person -

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

(b) gives, suspends, revokes or refuses to give a certificate, direction, approval, consent or permission;

(c) issues, suspends, revokes or refuses to issue a licence, Authority or other instrument;

(2) For the purposes of this Act or an enabling enactment -

(a) a decision is made under an enactment if it is made in the exercise or purported exercise of a function conferred or imposed by or under that enactment;

(b) a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision-maker;

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision.

1. The Environment Protection Act 1970 is an enabling enactment under the Victorian Civil and Administrative Tribunal Act 1998. It makes provision to review both refusal and failure. Each of Hi Quality's applications for review are in respect of the failure of the Authority to issue a works approval or to amend its licence.
2. Hi-Quality says it has made applications for review in respect of failure because by not considering the licence amendment application, the EPA has failed to determine its application. Likewise, by refusing to consider its works approval application, the EPA has failed to determine its application. However, in my view, I consider that in both cases the EPA has made a refusal and that both applications for review should be applications against refusal for the following reasons.
3. I regard section 4 of the Victorian Civil and Administrative Tribunal Act 1998 as sufficiently broad to encompass the actions of the EPA in the context of both its decision not to consider the application to amend the licence pursuant to section 20A(3)(b)(ii) and its refusal to consider the application for works approval pursuant to section 50C(1)(a) of the Act. I find that both actions can be characterised as decisions to refuse to make a decision to amend the licence or to issue a works approval within the meaning of either section 4(1)(a) - a decision not to make a decision, determination or assessment - or section 4(2)(c) - a refusal to make a decision because the decision-maker considers that the decision cannot be lawfully made. Accordingly, with respect to both the licence amendment application and the works approval application, I find that the EPA has made a decision to refuse to amend the licence and a decision to refuse to issue a works approval, and consequently a right of review has accrued to Hi-Quality to review those decisions under sections 33A(2) and 33(1) of the Act.
4. Even if the applications for review could be properly characterised as being failures to make a decision, section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 deems a failure by a decision-maker to make a decision under an enactment within a specified period as a decision at the end of that period to refuse to make the decision.
5. As a result, I find that there are valid applications for review on foot. This does not necessarily mean that the applications will be successful, but it does mean that the EPA cannot defeat a consideration of the applications on the basis that at the time the section 36D application was made there was no valid application for review either on foot or concerning a matter that may have been the subject of an application to the Tribunal.
6. Having regard to these findings, I will amend both applications pursuant to section 127 of the Victorian and Civil Administrative Tribunal Act 1998 to include refusal to issue a works approval and amend the licence so there can be no dispute on this point.

1. I now turn to what section 36D means when it says that a person may apply to the Tribunal for a declaration concerning any matter which may be the subject of an application to the Tribunal under the Act.
2. In Ramholdt v Planning Panels Victoria[3], Justice Morris said:

[28] It is important, as the High Court has recently observed [in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59], that powers given to specialist courts and tribunals be interpreted amply to give effect to the legislative policy that the specialist court or tribunal address legitimate issues of concern...

1. The words of section 36D confer a broad jurisdiction on the Tribunal that I do not consider should be narrowly interpreted when regard is had to the overall structure of the Environment Protection Act 1970 in terms of its review and dispute resolution provisions.
2. Part IV of the Act deals with reviews by Tribunals. Section 32 deals with jurisdiction of the Tribunal and provides as follows:
   1. Jurisdiction of Tribunal

(1) The Tribunal has jurisdiction to review decisions of the Authority, delegated agency or a litter Authority with respect to -

(c) abatement notices and notices of amendment under section 28B;

(d) pollution abatement notices and notices of amendment under section 31A;

(e) a direction to a protection agency to submit a proposal to develop a neighbourhood environment improvement plan to the Authority for endorsement;

(fa) requirements made under section 49AF, 49AH or 49AL;

(g) the variation or discharge of a financial assurance under section 67B(7) -

1. What is the purpose of section 32? The actual jurisdiction of the Tribunal to review decisions and the rights given to different people to do so are provided for in the specific legislative provisions listed. This is made clear by the last words "as provided in this Part". There is no need to list these provisions in section 32 in order to confer jurisdiction on the Tribunal. Why then would this introductory section to a Part of the Act dealing with reviews by Tribunals, commence with the broad statement that the Tribunal has jurisdiction to review decisions of the Authority with respect to the various listed matters?
2. In my view, these words indicate an intention by Parliament that the Tribunal will have a broad jurisdiction to consider matters in respect of decisions of all kinds made about works approvals and licences (and the other matters listed). It indicates Parliament's choice of VCAT as the forum in which disputes relating to EPA decisions are to be resolved. It needs to be read in conjunction with section 4 of the Victorian Civil and Administrative Tribunal Act 1998 in order to identify what constitutes a decision that the Tribunal has jurisdiction to review and section 36D.
3. I interpret section 32 as being an enabling provision that broadens the scope of the Tribunal's jurisdiction rather than narrowing it, if such a choice had to be made when interpreting the Act.
4. The broad ambit of what constitutes a decision under the Victorian Civil and Administrative Tribunal Act 1998 or an enabling enactment such as the Environment Protection Act 1970 can be seen from section 4 of the Victorian Civil and Administrative Tribunal Act 1998. As the Tribunal said in Allie v Director of Public Transport[4]: "it is important that the meaning of 'decision' be given a liberal meaning so justice may be done."
5. This intention to confer a broad jurisdiction on the Tribunal to review decisions in respect of the types of applications listed in section 32 is complemented by the broad ambit of the wording of section 36D. Section 36D(1) provides that: "A person may apply to the Victorian Civil and Administrative Tribunal for a declaration concerning any matter which may be the subject of an application to that Tribunal under this Act."
6. The category of persons who may apply for such a declaration is not limited to persons who may personally have a right of review. Whilst not relevant in this case due to the standing of Hi-Quality as an applicant for both an amendment of licence and a works approval, conceivably the reference to a person could encompass a third party. The reference to a person being able to make an application for declaration is extremely broad.
7. The word concerning is also a broad word meaning pertaining to, relating to, connected with, of interest or importance to, or affecting.[5] In Buttergieg v Melton No. 2,[6] Justice Morris referred to the "elasticity inherent in the word 'concerning'".[7]
8. Whilst the subject matter of a declaration is limited to a matter that may be subject of an application to the Tribunal[8], so long as this constraint is met there are no constraints on the ambit of the words any matter. The broad ambit of these words is reinforced by subsection (2), which provides that on an application under subsection (1) the Tribunal may make any declaration it thinks appropriate in the circumstances.
9. If the Parliament had intended to confine the ambit of types of matters that the Tribunal could make declarations about, it would have specified such limits rather than referring to any matter or any declaration.
10. For example, there are no limits in section 33A or section 33(1) to the grounds on which an application for review may be made of a refusal or failure to amend a licence or to issue a works approval made by an applicant for licence or works approval. This contrasts with sections 33B(2) and (2A), which restrict the grounds upon which an application to review the EPA's issue of a works approval, licence or licence amendment by a third party may be based. This distinction in the types of grounds that may be relied upon in different cases demonstrates Parliament's ability to limit jurisdiction if it so wishes.[9]
11. In my view, these words concerning any matter are broad enough to encompass consideration of any preconditions for the making of a decision by the EPA such as whether:
    • A works approval was required for a licence amendment; or
    • A works approval application could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan.
12. Such matters are jurisdictional facts[10] that must exist if the EPA is entitled to make the decisions it has made to refuse to consider the applications made to it under either section 20A(3)(b)(ii) or section 50C(1)(a) of the Environment Protection Act 1970.
13. By refusing to make decisions under these provisions, the EPA has made decisions within the meaning of the Victorian Civil and Administrative Tribunal Act 1998. The decisions it has made could be characterised in several ways as:
    • A decision to refuse to amend the licence or to issue a works approval;
    • A decision not to make a decision whether to amend the licence or to issue a works approval;
    • A refusal to make a decision because the Authority considers a decision cannot lawfully be made to amend the licence or issue a works approval; or
    • A failure to make a decision to amend the licence or to issues a works approval.
14. As I have previously found, all of these scenarios are decisions falling within the ambit of section 4 of the Victorian Civil and Administrative Tribunal Act 1998. Whatever way the decisions are characterised, I find that section 36D is wide enough to enable an application to be made by Hi-Quality for declarations concerning these jurisdictional facts; i.e. the facts which must be established if the Authority is to be entitled to rely upon the provisions of either section 20A(3)(b)(ii) or section 50C(1)(a) of the Act to justify its decisions to refuse to consider the applications for the licence amendment or the works approval.
15. To find otherwise would mean that the EPA would be entitled to refuse to consider an application but the applicant would be denied any opportunity to challenge the basis upon which the decision was made to refuse to consider the application either on the facts or on the basis of 'Wednesbury unreasonableness'. That cannot be right having regard to the following:
    • Such an interpretation is not within the spirit of section 32 or section 36D of the Environment Protection Act 1970.
    • It would be contrary to the broad deeming provisions under section 4 of the Victorian Civil and Administrative Act 1998, in particular section 4(2)(c), and the way in which the courts have interpreted them.[11]
    • It would be contrary to the broad powers of correction available to the Tribunal under section 127 and clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to amend applications and other documents in a proceeding.
    • It would be contrary to the ability of the Tribunal to disregard failures under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
16. The Tribunal's powers under the Victorian Civil and Administrative Tribunal Act 1998 to correct or amend documents or to disregard failures enable the Tribunal to deal with the substantial merits of a case (as directed under section 97 of this Act) notwithstanding procedural errors or other deficiencies.
17. In the recent case of Statewide Recycling Service Pty Ltd v Environment Protection Authority[12], the Tribunal held that it had power under clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 to disregard any failure of the applicant to comply with section 20A(2) of the Environment Protection Act 1970. This meant that whilst under section 20(3)(a) the EPA shall not deal with an application that does not comply with section 20A(2), this did not mean that the Tribunal may not deal with an application for review for the amendment of a licence where the application does not comply with subsection (2).[13]
18. In Statewide Recycling, the EPA refused to consider an application to amend a licence pursuant to both section 20A(3)(a) and section 22A(3)(b)(ii) on the basis that a works approval was required. The Tribunal held that the question of whether or not a works approval was required was a substantive issue about which there was a dispute that would need to be determined in the context of hearing the merits of the application for review:

[36] If it transpires that a works approval is required, then it is clear from the provisions of the Act that an amendment of the licence cannot be made. But if, as Statewide contends, no works approval is required because no works are proposed, then the question of whether the licence should be amended will need to be determined on its merits having regard to other relevant matters.

1. Nevertheless, the Tribunal determined to exercise its discretion under clause 62 to disregard the failure to comply with section 20A(2). In the course of considering the application of clause 62 to applications under the Environment Protection Act 1970, the Tribunal considered the decisions of the Supreme Court and the Court of Appeal in the two cases of Harvey v Mutsaers.[14] In the Supreme Court case, Emerton J commented on the width of the powers under clause 62. In doing so, she endorsed the comments of Balmford J in Rumpf v Mornington Peninsula SC[15] where Balmford J said:

[56] ... Thus, clause 62 is consistent with the general legislative approach of giving the Tribunal the extensive powers which are necessary to enable it to resolve planning issues which arise in the community, and to resolve them according to the merits of the case. Its powers are in many respects wider than the powers of the responsible authorities whose decisions it reviews.

1. As the Tribunal noted in Statewide Recycling:

[32] The decision of Emerton J in Harvey v Mutsaers was upheld by the Court of Appeal[16]. In doing so, the Court of Appeal also upheld the decision in Rumpf. It held that clause 62 extends to all forms of failure to comply with statutory requirements, regardless of effect.[17] The Court observed that:

[26] ...although at first it might strike one as odd for Parliament to confer a power of extension on VCAT which the relevant Authority does not have, it is not illogical. VCAT is itself an administrative decision maker but with superadded obligations and capacity to act in the interests of justice.

[33] The effect of the Court of Appeal decision in Harvey v Mutsaers is to put beyond doubt the broad power of the Tribunal to disregard failures to comply with any planning or other enactment and to determine a proceeding if the Tribunal considers it in the interests of justice to do so, notwithstanding that power may exceed what it is open to the relevant Authority to do.

1. Thus the overall tenor of provisions in both the Environment Protection Act 1970 and the Victorian Civil and Administrative Tribunal Act 1998, together with the broad approach taken by courts when interpreting these Acts and the role of the Tribunal, lead me to the conclusion that it would be inconsistent with Parliament's intention to establish the Tribunal as the forum in which disputes relating to EPA decisions are to be resolved to find that the Tribunal lacks jurisdiction. The ambit of the specific provisions of these Acts, which I have examined, evinces an intention that the Tribunal should be seized of jurisdiction to consider applications on their merits and, where relevant, to determine issues of jurisdictional fact that the Authority relies upon to make certain decisions.

1. For these reasons, I determine that the Tribunal has jurisdiction under section 36D of the Environment Protection Act 1970 to make declarations about whether the reasons relied upon by the EPA in making its decisions under section 20A(3)(b)(ii) and 50C(1)(a) existed in fact at the time the relevant decisions were made.

1. With respect to the need for a works approval, Hi-Quality says:
   • The landfill is a Type 2 landfill licensed to receive PIW.
   • Under EPA Publication 788.3 Best Practice Management Siting, design, operation and rehabilitation of landfills ('Landfill BPEM') relating to Classification of Landfills, SIW may be accepted at both a Type 2 and Type 3 landfill, whereas PIW Category C contaminated soils may only be accepted at a Type 2 landfill.
   • The standard required for the construction of a Type 3 landfill to receive solid inert waste ('SIW') is less than the standard required for construction of a Type 2 landfill to receive prescribed industrial waste ('PIW').
   • No additional works are required to ensure the landfill is of a standard capable of receiving SIW.
   • This accords with the EPA's own assessment in its Works Approval Assessment Report and Reasons for Refusal to Consider Application dated 11 February 2016.
   • If no works are required, then there is no need for a works approval because a works approval is only required for works.
   • In any event, the existing works approval for the subject land, WA31841 dated 30 October 1997, is a works approval for works in respect of low level contaminated soil ('LLCS'), solid inert waste ('SIV') and asbestos.
   • Consequently, no further works approval is required before the licence may be amended.

1. With respect to the need for a works approval, the EPA says that at the time of the first decision on 12 February 2015 a works approval was required because:
   • The licence amendment application proposed the deposit or receipt of SIW at the premises. This involved "an act" or "thing" and a "process" that was likely to cause an increase or alteration in the waste deposited to the premises within the meaning of section 19A of the Act in terms that:
     • SIW is capable of leaching and producing gas; and
     • Works were required to specifically address landfill gas and leachate collection and management in the absence of the licence amendment application containing information that satisfactorily addressed those matters.
   • At the time of the first decision on 12 February 2015:
     • The EPA did not have sufficient information available to it to conclude that a works approval was not required in order to assess the risk arising from leachate and landfill gas. It did not have the level of detail available in the works approval application; and
     • The EPA had not then undertaken its assessment of the works approval application or prepared its Works Approval Assessment Report and Reasons for Refusal to Consider Application dated 11 February 2016 in which it states that:

Hi-Quality proposes to accept, in addition to the wastes they are currently licensed for, Solid Inert Wastes (SIW). Hi-Quality in their application make the case that the current standard of the landfill is more than sufficient for these types of wastes and the EPA has now determined that no further construction or modification of the landfill infrastructure is necessary. The current licensed cells would be used to dispose of both prescribed industrial and solid inert wastes.[18]

• Consequently a works approval was required pursuant to section 19A(1) of the Act.

Was a works approval required at the time of the first decision?

1. At the time of the first decision on 12 February 2015, I find that a works approval was not required before a decision could be made on the merits of Hi-Quality's application for licence amendment for the following reasons.

1. The application for licence amendment specified that no works were proposed.
2. The definition of works approval in the Environment Protection Act 1970 means an approval of works issued under section 19B.

64 There is no definition of "works" in the Act. However, giving a plain English meaning to this term, works require some physical manifestation either in the form of a building, construction of plant, equipment or other structure, or some change to the natural or existing condition or topography of the land.[19] Throughout the provisions of the Act that refer to a works approval, there is an assumption that works in the form of some physical activity, construction or structure are required. For example, see the reference to works in sections 19B(5)(c), 19B(7A), 19CA(2), 19CA(3), 19CA(4), 19D(1)(b), 19E(2), 19F(2), 20A(3)(b), 20A(5), 20A(5A), 20A(5B), 20A(5C), 20A(6).

1. Mr Timothy Faragher gave evidence on behalf of the EPA as the manager of the Development Assessments Unit and the person responsible for signing off on the first decision and the second decision.
2. With respect to the first decision on 12 February 2015 that pursuant to section 20A(3)(b)(ii) of the Act the Authority would not deal with the applicant's licence amendment application because it considered a works approval was required, his evidence revealed a disturbing lack of rigour. Mr Faragher admitted this by saying that in hindsight, some of the assessment of the licence amendment application was not done carefully or adequately and that 'we dropped the ball on this'. Mr Faragher acknowledged in cross examination that when assessing the licence amendment application he considered that a works approval requirement under section 19A could be triggered when no works were contemplated. He agreed with the proposition put by Mr Canavan on behalf of Hi-Quality that the Authority wanted to require a works approval when no works were required because it wanted to involve third parties.[20]
3. The desire to provide an opportunity for comment to third parties is not a valid reason for requiring a works approval. Mr Faragher's understanding that a works approval requirement can be triggered when no works are contemplated is also wrong.
4. I find that the requirement for a works approval under section 19A(1) only arises if works are proposed. If no works are proposed, even though there may be a process which is likely to cause an increase or alteration in the waste deposited to the premises, a works approval will not be required. Section 19A of the Act provides as follows:

(1) The occupier of a scheduled premises must not do any act or thing, including the commencement of any construction, installation or modification of plant, equipment or process or any subsequent step in relation thereto, which is likely to cause -

(a) an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises; or

(b) an increase or alteration in the waste which is, or substances which are a danger or potential danger to the quality of the environment or any segment of the environment which are, reprocessed, treated, stored, contained, disposed of or handled, at the premises; or

(c) a change in any method or equipment used at the premises for the reprocessing, treatment, storage, containment, disposal or handling of waste, or of substances which are a danger or potential danger to the quality of the environment or any segment of the environment; or

(d) a significant increase in the emission of noise; or

(e) a state of potential danger to the quality of the environment or any segment of the environment -

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 act or thing is only in the course of and for the purpose of general maintenance.

1. Whilst section 19A(1)(a) refers to an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises, which would encompass the situation in the present case, the actual wording of section 19A precludes the occupier of a scheduled premises from increasing or altering the waste deposited at the premises except in accordance with a works approval or a licence [emphasis added].
2. In the present case, Hi-Quality proposes to alter the waste deposited at the premises in accordance with an amendment to its licence. If the licence is amended, but there are no works, this would meet the requirements of section 19A(1).
3. Mr Faragher says that at the time of the first decision, the Authority was concerned that if the licence was amended to include solid inert waste, this waste stream was capable of leaching and producing gas. Accordingly, it considered that works were required to address landfill gas and leachate management. Mr Faragher says that no information was included with the licence amendment application about landfill gas and leachate management. The Authority's letter dated 18 March 2015, which sets out the reasons for the Authority's first decision, refers to an upgrade that was recommended in the auditor's Design Assessment Report for a current cell in which Category C soil is to be deposited.
4. I find that this purported reason for concluding that a works approval was required cannot be supported for the following reasons:
   • The auditor's report referred to by the EPA is not relevant to the application for licence amendment. Hi-Quality said it was prepared in relation to an extension to cell 3, whereas the licence amendment application specifies that SIW will be deposited in cell 2.
   • The licence includes a condition requiring monitoring to be verified by an environmental auditor. There have been two environmental audits (Cardno Lane Piper, 2013 and Cardno, 2015), which identify a number of recommendations about establishing a landfill gas monitoring network and program and other monitoring programs under the Environmental Monitoring Program that is also required as a condition of the licence. These audit reports relate to the existing use of the site for PIW, not SIW.
   • The EPA has power to ensure compliance with the recommendations of any audit reports pursuant to section 21 of the Act. The EPA does not need to rely upon a proposed amendment to a licence in order to require compliance with an audit report relating to existing licenced operations.
   • The EPA says that there was no information in the licence amendment application material to address landfill gas and leachate management issues. It says that Hi-Quality cannot rely upon the detailed information provided later in support of the works approval application, which establishes that no additional works are required to address landfill gas or leachate management associated with the deposition of SIW even though this was also the conclusion of the EPA in its Works Approval Assessment Report and Reasons for Refusal to Consider Application dated 11 February 2016, which states:

Hi-Quality proposes to accept, in addition to the wastes they are currently licensed for, Solid Inert Wastes (SIW). Hi-Quality in their application make the case that the current standard of the landfill is more than sufficient for these types of wastes and the EPA has now determined that no further construction or modification of the landfill infrastructure is necessary. The current licensed cells would be used to dispose of both prescribed industrial and solid inert wastes.[21]

...it is clear that the application is technically sound and the EPA has no objection to the proposal on an environmental or technical basis.[22]

• The EPA says that it did not have access to this information when Hi-Quality made its application for a licence amendment on 20 October 2014. However, the EPA has power under section 20A(2)(c) to require any further information about the application within 21 days of receiving the initial application. The EPA did not make any requests for further information to clarify the need for any further works or the means of addressing any landfill gas and leachate management.
• The landfill is a Type 2 landfill licensed to receive PIW.
• Under EPA Publication 788.3 Best Practice Management Siting, design, operation and rehabilitation of landfills ('Landfill BPEM') relating to Classification of Landfills, SIW may be accepted at both a Type 2 and Type 3 landfill, whereas PIW Category C contaminated soils may only be accepted at a Type 2 landfill.
• The standard required for the construction of a Type 3 landfill to receive solid inert waste ('SIW') is less than the standard required for construction of a Type 2 landfill to receive prescribed industrial waste ('PIW').
• These principles were tested in the expert evidence of Dr Nadebaum who is an accredited environmental auditor.
• These are principles that the EPA, as an expert statutory authority, should have been aware of and should have had regard to in its handling of the licence amendment application. If there was any reason for the Authority to believe that these principles would not be applicable to the application before it, it had the opportunity and the responsibility to seek further information, which it did not do.
• When taken to details of the works approval 31841 issued on 30 October 1997, the works approval application on which the works approval was based, and the environment improvement plan dated September 2000, which condition 2.1 of the original EPA licence (ES46084) issued in respect of the subject site required compliance with, Mr Faragher admitted there was a compelling case that the works approval included SIW and, if this had been pointed out and it had been appreciated by the EPA at the time the licence amendment application was received, the application would have been considered on its merits rather than the Authority not dealing with it pursuant to section 20A(3)(b)(ii) on the basis that a works approval was required and has not been obtained.

1. The EPA sought to make further submissions after the hearing about whether the works approval issued in 1997 includes approval for SIW. I have considered these further submissions and those made in response by Hi-Quality.
2. I have concluded that works approval WA31841 issued on 30 October 1997 approves the use of the subject land for disposing of SIW for the following reasons.
3. The works description states as follows:

This approval applies to the use of a former quarry for the deposition of low level contaminated soil. It allows for the construction of a new landfill.

1.1 The works must be constructed only onto that piece of land delineated and hatched in the attached "Plan A" in accordance with the Works Approval application accepted on 24/6/97 except that in the event of any inconsistency arising between the application and the conditions of the Works Approval, the conditions of the Works Approval must apply.

1. The application for EPA works approval dated June 1997 referred to in condition 1.1 describes the proposal in the following terms:

... Northern Recycling and Waste Management Pty Ltd have submitted this works approval application to demonstrate the suitability of the site for landfilling with low level contaminated soil, asbestos and solid inert materials. If this application is approved Northern Recycling and Waste Management Pty Ltd will submit a licence application to EPA for the landfilling of low level contaminated soil only. The landfilling of solid inert and asbestos materials would be the subject of separate and future licence applications.[23] [Tribunal emphasis added]

1. There are numerous references throughout the application for works approval document that it is an application for the deposit of low level contaminated soil, solid inert waste and asbestos, although initially a licence application for the receipt of low level contaminated soil only will be made.[24]
2. In accordance with the intentions expressed in the works approval application, the initial licence[25] only allowed the disposal of contaminated soil (low level) and waste acid sulphate soils. Condition 2.1 of the licence provided:

2.1 The licence holder must operate the landfill in accordance with the Environment Improvement Plan dated September 2000 supplied by Egis Consulting Australia annotated as VP8583.001.RevA or the latest version of the Environment Improvement Plan subsequently approved by the EPA.

1. The Environment Improvement Plan (September 2000) includes the following references to the permitted wastes allowed under the works approval as follows:

Wastes considered for disposal at the site in the EPA works approval WA31841 are low level contaminated soil, waste asbestos of industrial and domestic origin and solid inert waste. To ensure compliance with the interim waste management plan of the Northern Regional Waste Management Group, the site will initially accept low level contaminated soil only. However, it is expected that as the closure of the nearby Bulla Tip and Quarry Pty Ltd landfill and other landfills approach, the operator will make an application to EPA for amendment of the site licence to permit the acceptance of asbestos and solid inert materials. At that time this plan will be amended to include provisions for the landfilling of these wastes.

1. I find that when the works approval application is read as a whole, it is not simply a statement of future intention that wastes will include solid inert waste. Rather, there is a clear intention that the works approval will be for works able to accept low level contaminated waste, solid inert waste and asbestos, and the works proposed are designed for this purpose. It is made abundantly clear that a licence will only be sought initially for low level contaminated waste with other wastes to be licenced separately at a later stage.
2. I find there is a consistency between the works approval application and the subsequent Environment Improvement Plan on this point.
3. The works approval must be read holistically. It includes not only the works description but also the conditions. The conditions specifically state that the works must be constructed in accordance with the works approval application. The works approval application describes works that are suitable for and intended for the deposit of low level contaminated soil, asbestos and solid inert materials.
4. The site was initially only licenced for low level contaminated soil, which is now known as prescribed industrial waste, but the site was subsequently licenced to accept asbestos, as contemplated in the works approval application, without requiring a further works approval.
5. I do not accept the EPA's suggestion the Authority was not likely to have approved works for solid inert waste at the time the works approval was issued as the site was not included as a high priority in the regional plan and there was no need for solid inert waste landfilling at the site at the time. I do not consider that such an assertion can be relied upon as representing the Authority's view 19 years ago when there is no evidence to support this. Rather, I consider that the documents must be interpreted on their face and in a holistic way. They do not support such an assertion.
6. I further find that the works described in the works approval application, were designed to be suitable for the deposit of low level contaminated soil, solid inert waste and asbestos, and that this is evidenced by the issue of the works approval and the subsequent licence issued for prescribed industrial waste, which requires a higher standard of construction than a landfill licenced to receive solid inert waste.
7. In all these circumstances, I am satisfied that works approval WA31841 issued on 30 October 1997 is a works approval in relation to solid inert waste. My finding on this point is a finding of fact. This fact existed at the time of the first decision. It is not relevant that the EPA personnel, who made the first decision, did not realise this.

1. For the EPA to be justified in refusing to deal with an application under section 20A(3)(b)(ii), the precondition for invoking this section (in other words, the jurisdictional fact) must exist in fact not just be a subjective opinion of the Authority at the time. I have found that on two bases the facts required to invoke section 20A(3)(b)(ii) did not exist:
   • No works were proposed or required as part of the licence amendment application, consequently no works approval was required.
   • In any event, the existing works approval WA31841 is a works approval for works in respect of solid inert waste.
2. Consequently, as at the date of the first decision on 12 February 2015 no further works approval was required (or is now required) before the licence may be amended.

STATE-WIDE WASTE AND RESOURCE RECOVERY INFRASTRUCTURE PLAN

1. With respect to whether the works approval application is or could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan, Hi-Quality says:
   • The Hi-Quality landfill at Bulla is expressly acknowledged as an existing landfill receiving SIW in Table 7.10 to the State-Wide Waste and Resource Recovery Infrastructure Plan.
   • This is a complete answer to any argument that the proposed amendment of the licence is inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan.

1. With respect to whether the works approval application is or could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan ('SWRRIP'), the EPA says that at the time of its second decision on 11 February 2016:
   • The State-Wide Waste and Resource Recovery Infrastructure Plan:
     • Provides Victoria with the long-term vision and roadmap to guide future planning for waste and recovery infrastructure;
     • Reflects principles of environmental justice to ensure that impacts on community, environment and public health are not felt disproportionately across communities;
     • Sets out the strategic directions that will guide decision-making to ensure that investment in the right infrastructure will achieve the four goals of the SWRRIP;
     • Relevantly includes the following goals:
       1. Landfills will only be for receiving and treating waste streams from which all materials can be viably recovered have been extracted.
       2. Waste and resource recovery facilities including landfills are established and managed over their lifetime to provide best economic, community, environment, and public health outcomes for local communities and the State and ensure their impacts are not felt disproportionately across the communities.
       3. Targeted information provides the evidence base to inform integrated statewide waste and resource recovery infrastructure planning and investment at the state, regional and local levels by industry, local, government, waste and resource recovery groups, government agencies and the broader community.[26]
   • The State-Wide Waste and Resource Recovery Infrastructure Plan will guide strategic planning to meet the infrastructure needs of Victoria and provide certainty to industry for the next 30 years.
   • The State-Wide Waste and Resource Recovery Infrastructure Plan:
     • Includes a high level overview of the waste and resource recovery regions across the State that will be further refined through the development of the Regional Waste and Resource Recovery Implementation Plans (RWRRIPs);
     • Recognises that a vital component of the RWRRIPs is targeted consultation with the community to determine the waste and resource recovery priorities and to ensure that communities have opportunities to participate in the decisions and long-term planning to establish a safe, integrated waste and resource recovery system; and
     • Sets out a number of considerations that should guide decision-makers (such as the Authority) when making decisions in respect of works approvals and licences, including consistency with the SWRRIP vision, purpose, goals, long-term directions and five year outcomes.[27]
   • If the Applicant were permitted to accept solid inert waste at the premises for recycling and disposal, the operation of the Applicant's facility could be inconsistent with the SWRRIP. This is because:
     • In the absence of the relevant RWRRIP, it could conflict with the evidence base (as will be outlined in the RWRRIP and consequent planning decisions) that will inform integrated State-wide waste and resource recovery infrastructure planning and investment;
   • It could be inconsistent with long-term directions of the SWRRIP insofar as they require integrated State-wide planning and decision-making;[28]
   • It could be inconsistent with Goal 3 of the SWRRIP, as the addition of another solid inert waste landfill in close proximity to two other existing solid inert waste landfills may mean that the impacts of solid inert waste landfills are felt disproportionately by the Sunbury and Melton communities;
   • The establishment of a solid inert waste landfill could be inconsistent with Goal 3 of the SWRRIP, as landfills need to be managed over their lifetimes to provide best economic outcomes in the context of other landfills being able to meet this need;[29]
   • It could be inconsistent with the principles of environmental justice in the SWRRIP, as the community has been unable to participate in decision-making and long-term planning in relation to waste resource and recovery infrastructure, including landfills; and
   • It could be inconsistent with the SWRRIP because the Application proposes the deposition of waste at the premises prior to it being recovered, whereas Goal 1 of the SWRRIP states that "[l]andfills will only be for receiving and treating waste streams from which all materials can be viably recovered have been extracted."

• Section 50C may only be engaged before an application for review is made to the Tribunal. Once an application for review has been made, section 50C cannot be invoked by either the Authority or the Tribunal.

Consistency with State-Wide Waste and Resource Recovery Infrastructure Plan

1. Having determined that a works approval is not required for the proposed licence amendment, it is probably not necessary to determine whether the works approval application made by Hi-Quality could be said to be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan ('the Plan') such that the EPA was entitled to exercise its discretion under section 50C of the Act to refuse to consider the application.
2. Section 50C of the Act provides as follows:

50C Authority may refuse applications for certain facilities if Plans not observed

(1) The Authority may refuse to consider an application for a works approval or an application for the issue or amendment of a licence in relation to a waste management facility if -

(a) the operations of the facility could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan or a relevant Regional Waste and Resource Recovery Implementation Plan; or

(b) the applicant is in breach of any relevant requirements of a schedule of existing and required waste and resource recovery infrastructure within a Regional Waste and Resource Recovery Implementation Plan.

(2) Subject to subsection (3), the Authority must refuse to consider an application for a works approval in relation to a new landfill if the landfill is not provided for in the proposed sequence for the filling of available landfill sites in a relevant schedule of existing and required waste and resource recovery infrastructure within a Regional Waste and Resource Recovery Implementation Plan.

1. Section 50C(1) gives the Authority a discretion to refuse to consider an application for a works approval or an application for the issue or amendment of a licence in relation to a waste management facility if the operations of the facility could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan or relevant Regional Waste and Resource Recovery Implementation Plan.
2. At this stage the State-Wide Waste and Resource Recovery Infrastructure Plan is the only plan because there are not yet any relevant Regional Waste and Resource Recovery Implementation Plans.
3. The State-Wide Waste and Resource Recovery Infrastructure Plan was gazetted under the Act on 11 June 2015.
4. It is relevant to note that Hi-Quality made its application for a works approval on 29 July 2015, consequently if a works approval was required, the provisions of section 50C would be relevant to the EPA's consideration of the application. However, because the licence amendment application was made on 28 November 2014, section 50C is not relevant because at the time the application was lodged and at the time of the first decision there was no gazetted State-Wide Waste and Resource Recovery Infrastructure Plan that the licence amendment might be inconsistent with.
5. A great deal of time was spent at the hearing analysing why it could be said that the proposed acceptance of SIW at the subject land could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan. The Plan is a lengthy, aspirational document of nearly 150 pages. The way it is drafted, it would be difficult to say categorically that any proposal might not be inconsistent with some aspect of the Plan. The words of section 50C(1)(a) do not require that the operations of the facility will be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan, but only that they could be. This is a very subjective test.
6. The prospect of ever overcoming this hurdle appears remote given the view expressed by Ms Petrie of the Metropolitan Waste and Resource Recovery Group that there will be no need to schedule further airspace for landfill over the next 30 years. Although the Plan only covers a ten year period, if the view is taken that there will be no need for further landfill airspace for many years, then the likely effect of section 50C is that there will never be any further approvals of additional landfill in the short to medium term. The answer will always be 'no' to any applications for works approvals or licence amendments on the basis that there is no need for any additional capacity and hence the applications are not consistent with the State-Wide Waste and Resource Recovery Infrastructure Plan. Whilst this conclusion is not explicitly stated in the Plan, the strong impression I gained based on the evidence given by Ms Petrie is that this will be the outcome. The view will be that no new airspace required for at least the next 5-10 years, and possibly the next 30 years.
7. I have already made my finding about the fact that there was no need for a works approval at the date of the first decision. Therefore the relevance of the consistency of the operations of the facility with the State-Wide Waste and Resource Recovery Infrastructure Plan is not critical in respect of the licence amendment application because the Plan had not then been gazetted. It was only in respect of the works approval application that the EPA purported to rely upon section 50C(1)(a) "to refuse to consider the application on the basis that the operations of the facility, if it was authorised to accept SIW, could be inconsistent with the SWRRIP."
8. However, even if it is relevant to continue to consider the works approval application, I consider a very important fact when deciding whether the discretion under section 50C(1)(a) could be reasonably exercised is that on page 108 in Table 7.10 of the Plan, the Hi-Quality facility at Bulla is noted as an operating landfill accepting solid inert wastes. A note to Table 7.10 states that 'Category C soils and PIW are outside the scope of the SWRRIP'
9. According to Ms Wilson, who is the manager of waste and resource recovery planning at Sustainability Victoria, this entry in Table 7.10 is an error in the State-Wide Waste and Resource Recovery Implementation Plan.
10. Although the facility is not licensed to accept SIW, inclusion of the facility in the table may well reflect the works approval issued in 1997, which was for SIW. However, I can only speculate on this, just as I consider that Ms Wilson was speculating when she said that its inclusion was an error.
11. Whether it is an administrative error or not, whilst this entry forms part of the gazetted State-Wide Waste and Resource Recovery Implementation Plan, it must be given meaning and some weight. In the present case, I consider that considerable weight must be given to it, which would reduce the legitimacy of any argument that use of the Hi-Quality landfill at Bulla to receive solid inert waste would be inconsistent with the State-Wide Waste and Wide Waste Infrastructure Plan. In my view, its inclusion demonstrates that the operations of the facility could not be said to be inconsistent with the Plan.

1. This brings me to the question of the utility of making the third declaration that the operations of the waste management facility in accordance with the licence amendment, if granted, or in accordance with a works approval (in accordance with the works approval application) would not be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan for the purpose of section 50A(1)(a) of the Act, and the fourth declaration about the force and effect of the second decision.
2. Having regard to my findings about the lack of need for a works approval and the lack of relevance of the Plan to the decision about the licence amendment, I am not sure that the third and fourth declarations, which Hi-Quality requests, are required.
3. Nevertheless, I consider that it is appropriate to make some declaration about whether it was reasonable for the EPA to make the decision that it did under section 50C(1)(a). Any decision by the EPA under section 50C(1)(a) to refuse to consider an application for a works approval , licence or amendment of licence must always be a matter of judgement. It is not something about which there can be an objective finding of fact as there can be with respect to the need for a works approval in the case of section 20A(3)(b(ii). However, any exercise of judgement must be reasonable having regard to all the facts and circumstances of the case. It cannot be prejudiced by any preconceived opinions about outcomes.
4. I have carefully read the EPA Works approval assessment report & reasons for refusal to consider application dated 11 February 2016. The reasons for refusal to consider the application can be summarised as follows:
   • The application is technically sound and the EPA has no objection to the proposal on an environmental or technical basis.
   • Under the State-Wide Waste and Resource Recovery Infrastructure Plan, the Regional Waste and Resource Recovery Implementation Plans are contemplated as central to the strategic planning of future waste and resource recovery in Victoria, including specific landfilling needs at a State, regional and local level, including the hub in which Hi-Quality is located.
   • Essentially, because no relevant Regional Waste and Resource Recovery Implementation Plans have been approved as yet, it would be premature to approve the application.
   • Whilst EPA acknowledges that there are many factors in the works approval application that are consistent with various aspects of the State-Wide Waste and Resource Recovery Infrastructure Plan, on balance it considered that other matters relating to high order policy goals and lack of need for additional airspace outweighed those aspects.
5. In my view, I consider that the application was required to be considered in the light of the State-Wide Waste and Resource Recovery Infrastructure Plan and any Regional Waste and Resource Recovery Implementation Plan existing at the time it was made. If there was no relevant Regional Waste and Resource Recovery Implementation Plan in place at the time, then there is no basis in the Act to refuse to consider the application on the basis that the application is premature and must wait until such plan is approved.
6. The evidence given by Ms Wilson and Ms Petrie revealed a lack of understanding about the detail of the proposed SIW to be deposited. Their organisations' responses to the works approval application were relied upon by the Environment Protection Authority in making its judgement.
7. In fact, the final fill will only represent material from which recyclable materials have already been extracted, not material that could otherwise be recycled or recovered. The Executive Summary in the application states:

Hi-Quality wishes to accept solid inert waste into its landfill site for recycling and disposal. A works approval is sought for this purpose.

Solid inert waste would initially be placed in the current landfill cells where prescribed industrial waste is deposited. Hi-Quality would also seek to minimise the quantity of solid inert waste landfilled by diverting suitable wastes to its recycling and recovery facility [on the same site].[30]

1. The process is further explained in the application as follows:

To ensure agree [sic] of waste minimisation, as part of the solid inert landfilling process Hi-Quality intends to establish a resource recovery facility for solid inert waste at the site.

This facility would be identical to Hi-Quality's facility in Sydney, operating under NSW Environment Protection Licences; No. 5186 - Waste disposal (General Solid Waste (non-putrescible)) & No. 12618 - Resource recovery. This operation involves the processing of construction and demolition waste via a state of the art mixed waste processing facility. This highly automated process utilizes various types of material separation equipment sourced from specialist suppliers around the world to achieve recovery rates of around 90 percent. The main products generated through this processing facility are soil, brick and concrete (which is crushed to make aggregate and road base), timber, green waste mulch and steel. Stringent incoming inspection procedures are adopted to ensure all the waste received is suitable for recovery and all waste derived products are tested in accordance with relevant NSW EPA Resource Recovery exemptions and supplied back to customers.[31]

1. In other words, it is anticipated there will be a 90% recovery rate (approximately) with only the balance going to final fill. This did not seem to be appreciated.
2. Having regard to all the evidence, the details of the works approval application and the State-Wide Waste and Resource Recovery Infrastructure Plan, I consider that that the EPA did not have a reasonable basis to conclude that the operations of the facility could be inconsistent with the State-Wide Waste and Resource Recovery Infrastructure Plan.
3. I prefer to make a declaration to this effect rather than in the exact terms of the third declaration applied for by Hi-Quality. However, I will make a declaration to the effect of the fourth declaration applied for.

1. Based on my conclusions that the Tribunal has jurisdiction to make declarations under section 36D and my findings with respect to the need (or lack of need) for a works approval at the time when the licence amendment application was made, I am prepared to make the first and second declarations sought by Hi-Quality.
2. To put the matter beyond doubt, I will make a further declaration that works approval WA31841 issued on 30 October 1997 is a works approval for construction of a landfill to accept low level contaminated soil, asbestos and solid inert waste.
3. I will make declarations about the consistency of the works approval application with the State-Wide Waste and Resource Recovery Infrastructure Plan and the EPA's decision under section 50C(a)(i) as outlined.

1. I note that the two applications for review in respect of the works approval and the licence amendment are scheduled for hearing on 24 October 2016 for four days. Whilst application P672/2016 in respect of the licence amendment will now need to be considered on its merits, there does not appear to be a need any longer to proceed with the application for review in respect of the works approval.
2. I will list both proceedings P448/2016 and P672/2016 for an administrative mention so that parties may indicate how these matters should be dealt with.

[1] [2015] VCAT 1105.

[2] Section 124 of the Victorian Civil and Administrative Tribunal Act 1998 provides as follows:

• (1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.

(3) The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under an enabling enactment to make a declaration.

[3] [2004] VCAT 2432

[5] See the Macquarie Concise Dictionary.

[6] [2004] VCAT 868 at [33].

[7] See also Terminate Tulla v EPA [2007] VCAT 2332.

[8] See Ileowl Pty Ltd v Environment Protection Authority [2015] VCAT 1105

[9] Further examples of limits on what may be taken into account in different types of reviews are found in section 33C and 34(2).

[10] A jurisdictional fact is a set of circumstances set out in a statute that must exist before a government official or authority can act.

[11] For example, in Harvey & Anor v Mutsaers & Ors [2011] VSC 23 at [32] Emerton J was considering a decision of the council to refuse an application for an extension of a permit made out of time by the Mutsaers. She held that the decision was a reviewable decision under the VCAT Act 1998 whether or not the Mutsaers had the right to make the extension application in the first place, because a decision that purports to be made under an enactment is deemed to be a decision made under that enactment even if the decision was beyond the power of the decision maker (section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998). Similarly, a refusal by a decision maker to make a decision under an enactment because the decision maker considers that the decision cannot be lawfully made is deemed to be a decision made under an enactment to refuse to make the decision (section 4(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998). Accordingly, she held that the Tribunal was properly seized of its jurisdiction to review the decision of the council not to extend the permit. There was no question of the Tribunal "conferring jurisdiction on itself". This decision of the Supreme Court was upheld by the Court of Appeal in Harvey & Anor v Mutsaers and Ors [2012] VSCA 69.

[12] [2016] VCAT 1558.

[13] [2016] VCAT 1558 at [34]- [35].

[14] Harvey & Anor v Mutsaers & Ors [2011] VSC 23 and Harvey & Anor v Mutsaers & Ors [2012] VSCA 69.

[15] [2000] VSC 311; (2000) 2 VR 69.

[16] Harvey v Mutsaers [2012] VSCA 69

[17] [2012] VSCA 69 at [24]

[18] Works Approval Assessment Report and Reasons for Refusal to Consider Application (11 February 2016) page 3.

[19] See, for example, the definition of works in the Planning and Environment Act 1987, which provides:

"works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.

[20] The desire to involve third parties is reflected in the EPA's letter dated 12 February 2015 which says:

As the requested inclusion of solid inert waste is likely to cause an increase or alteration in the waste deposited at the landfill (see section 19A(1) of the Act), the Authority is concerned, in particular, that third parties, including the responsible Authority and any other person or body that may have an interest in the application (such as the Metropolitan Waste and Resource Recovery Group), have an opportunity to comment on the proposal.

[23] Northern Recycling and Waste Management Pty Ltd: Proposed Landfill, Sunbury Road, Bulla; Application for EPA Works Approval (June 1997), page vii.

[24] See pages 1, 5, 26, 27, 29, and 45.

[26] State-Wide Waste and Resource Recovery Infrastructure Plan Figure 1.1. page 17.

[27] As listed at Figure 1.1 of the State-Wide Waste and Resource Recovery Infrastructure Plan.

[28] In the absence of the approval and gazettal of the Metropolitan Waste and Resource Recovery Implementation Plan (which is the relevant RWRRIP and which will set out the relevant infrastructure needs for the metropolitan region), the Authority cannot rule out the potential for the Application to be inconsistent.

[29] The Application states that only approximately 9.8% of solid inert waste may need to be landfilled.

[31] Works approval application page 26