What is jurisdictional error? ..............................................................61

Tribunal Determination - Grounds 1 and 2: Was there a constructive failure to exercise jurisdiction and failure to consider mandatory relevant considerations? ....................................................................69

Tribunal Determination - Ground 3: Uncertainty or is permission significantly different from application...........................................112

Tribunal Determination - Ground 4: Beyond power.......................115

Materiality and discretion................................................................117

Conclusion.......................................................................................122

Costs reserved..................................................................................122

Appendix A - Timeline of proceeding - P1641/2023..............................123

Appendix B - Preliminary matters............................................................131

Appendix C - Submissions - Grounds 1 and 2: Was there a constructive failure to exercise jurisdiction and failure to consider mandatory relevant considerations?..........................................................................................134

Appendix D - Submissions - Ground 3: Uncertainty or is permission significantly different from application.....................................................223

Appendix E - Submissions - Ground 4: Beyond Power...........................252

1. 'Waste to energy' ('WtE') or 'energy from waste' ('EfW')[2] describes a number of different industrial techniques and technologies to convert waste into a usable form of energy. The technology generates energy as heat from the combustion of waste. Heat is converted to steam, which can be used to generate electricity and / or in operational processes. There are many waste to energy facilities operating globally.[3]
2. Prospect Hill International Pty Ltd ('PHI') seeks to establish an energy from waste ('EfW') facility, capable of treating 400,000 tonnes per year of municipal solid waste ('MSW') and commercial and industrial ('C&I') waste and generating 35 megawatts of electricity per year ('proposal'), on the land situated at 164-200 McManus Road, Lara ('subject land').
3. Pursuant to section 474 of the Environment Protection Act 2017 (Vic) ('EP Act 2017'), a works approval application made under the former Environment Protection Act 1970 (Vic) ('EP Act 1970') is taken to be a development licence application made under the EP Act 2017.
4. PHI seeks permission to conduct AO8 (waste to energy) prescribed development activities under section 44(1) of the EP Act 2017 and Schedule 1 of the Environment Protection Regulations 2021 (Vic) ('EP Regulations').

PHI lodged works approval application 1004200 ('Application') with the Environment Protection Authority ('EPA') pursuant to the EP Act 1970.

Former EP Act 1970 was replaced by the EP Act 2017.

EPA granted Development Licence DL00030041 ('Development Licence') to PHI for the proposal pursuant to section 69(1) of the EP Act 2017.

L. Bisinella Developments Pty Ltd ('Bisinella') commenced two proceedings concerning the EPA's decision to grant the Licence:

1. Proceeding P1641/2023, being an application for declaration commenced pursuant to section 436 of the EP Act 2017 (the 'Declaration Proceeding'); and
2. Proceeding P1642/2023, being an application for review commenced pursuant to section 434 of the EP Act 2017 (the 'Review Proceeding').

Tribunal ruled that the two proceedings would not be heard and determined together, with the Declaration Proceeding to be heard first.[4]

1. A number of practice day hearings and preliminary hearings have been held in advance of this hearing, including with respect to the related proceeding in P1642/2023. A timeline of the orders made in this proceeding is set out in Appendix A.
2. A record of other procedural matters is set out in Appendix B.
3. This declaration proceeding has been determined by Deputy President Daicic. [5]

1. Bisinella's application for declaratory relief relies upon four grounds that EPA's approach was unlawful and is affected by jurisdictional error because:
   1. there was a constructive failure to exercise jurisdiction (Ground 1 - failure to exercise jurisdiction);
   2. there was a failure to take into account mandatory relevant considerations (Ground 2 - mandatory relevant considerations);
   3. the purported decision and conditions in the development licence result in uncertainty because there is no effective approval and the conditions allow for a significantly different development (Ground 3 - no effective approval);
   4. it was beyond power because significant issues for determination were deferred without third parties being able to effectively exercise their review rights due to lack of clarity over the specific development, as will ultimately be proposed (Ground 4 - beyond power).
2. PHI submits that Bisinella's grounds are all based on the same proposition and in this sense it said the application is like a fancy restaurant that has 'duck cooked three ways'.
3. PHI and EPA contend Bisinella has not discharged the burden of proof that there was a jurisdictional error in the decision making process.
4. EPA submits it has discharged its obligations under the statutory framework.
5. Bisinella bears the onus of proof on the balance of probabilities an error has occurred. Ultimately, I have found Bisinella has not satisfied me that EPA's decision of 6 December 2023 is affected by jurisdictional error.
6. In coming to this conclusion, I have relied on the submissions made by the parties with respect to the EPA's record of its reasons contained in the Assessment Report.
7. Detailed reasons for these findings and conclusions follow.

1. The written and oral submissions made at the hearing were extensive and complex. There were overlapping of arguments across the grounds and submissions were made in closing submissions that the other parties did not understand a party's case and vis-a-versa. For ease of reference, summaries of the submissions made by the parties have been included in Appendices C, D and E for each of Bisinella's grounds.

436 Application for declaration

(1) A person may apply to VCAT for a declaration concerning any matter in relation to which the person may apply to VCAT under this Act or anything done by the Authority under this Act.

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

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

(4) Without limiting subsection (1), a person proposing to engage in an activity may apply to VCAT for a declaration as to whether or not a permission is required to engage in that activity.

1. Pursuant to section 436 of the EP Act 2017, Bisinella seeks the following declaration from the Tribunal:[6]

That the decision of the Environment Protection Authority made 6 December 2023 to grant development licence number DL000300041 is affected by jurisdictional error.

1. In order to make the declaration sought, the Tribunal must be satisfied that EPA's decision is affected by jurisdictional error.
2. Bisinella relies on a number of grounds in support of the proposition that there is a jurisdictional error (refer below).
3. Bisinella's fourth ground concerns the impact of the EPA's decision on the capacity for third parties to exercise review rights conferred under the EP Act 2017. Here, Bisinella refers to section 434 of the EP Act 2017, which provides:

434 Application for review by third parties

(1) A person who is not an eligible person in relation to a reviewable decision specified in subsection (2) may, if the person's interests are affected by the decision, apply to VCAT for review of the decision within 15 business days after the day on which the decision was made.

(2) The following reviewable decisions are specified for the purposes of subsection (1) -

(a) the issue of a development licence;

(b) the removal of the suspension of an operating licence.

(3) An application under subsection (1) for the review of a decision may only be made on one or more of the following grounds -

(a) the decision unreasonably and adversely affects the financial, physical or personal interests of the applicant;

(b) the licence to which the decision relates authorises a licence activity that, if conducted in accordance with the licence, would lead to a contravention of the general environmental duty;

(c) the licence authorises a licence activity that, if conducted in accordance with the licence, would pose an unacceptable risk of harm to human health or the environment;

(d) any condition of the licence that specifies how a person is to comply with the general environmental duty when engaging in a licence activity is not sufficient to minimise the risks of harm to human health or the environment from pollution or waste to which the condition relates, so far as reasonably practicable.

(4) Without limiting section 5 of the Victorian Civil and Administrative Tribunal Act 1998, VCAT may take into account the following matters when determining whether a person's interests are affected by a decision -

(a) the principles of environment protection specified in Chapter 2 and the purposes of this Act;

(b) the objective of the Authority specified in section 357;

(c) the nature of the licence activity specified in the licence that is the subject of the decision;

(d) the impact of the licence activity on human health and the environment;

(e) whether the person has a genuine connection with the subject of the decision, including but not limited to whether the person made comments or submissions to the Authority in relation to the application for, or the review of, the licence that is the subject of the decision.

(5) A person may not apply to VCAT under subsection (1) for the review of the decision to issue a development licence -

(a) if the application for the licence specifies an activity that is works to which the Environment Effects Act 1978 applies -

(i) the notice of the application for the licence under section 52 is combined with any notice under the Environment Effects Act 1978 in accordance with section 70; and

(ii) the licence is substantially in accordance with the assessment, by the Minister administering that Act, of the Environment Effects Statement prepared under that Act for those works; or

(b) if the application for the licence specifies an activity that requires a planning permit or the preparation of an amendment to a planning scheme under the Planning and Environment Act 1987 -

(i) the notice of the application for the licence under section 52 is combined with any notice under the Planning and Environment Act 1987 in accordance with section 70; and

(ii) a panel has been appointed under that Act to hear the application or amendment; and

(iii) the licence is substantially in accordance with the application or amendment as heard by the panel.

1. Bisinella's statement of grounds [which accompanied the declaration application] is as follows:
   1. In assessing the application, the EPA relied upon a conceptual design to establish that an appropriately designed project could achieve acceptable outcomes rather than assessing a detailed design to determine whether the facility as designed would achieve the required outcomes.
   2. As a consequence of its acceptance of this approach, the EPA imposed conditions on the licence which had the effect of deferring the determination of whether the facility as constructed was capable of achieving the required outcomes for an indefinite period.

1. It amounted to a constructive failure to exercise the EPA's jurisdiction in circumstances where the EPA was required to refuse the application if it concluded the activity would poses [sic] an unacceptable risk to human health and the environment and the effect of the EPA's decision was to defer the question of whether the specific development as ultimately proposed would pose such a risk to the future process established by the conditions on the development licence.
2. Further, or alternatively, the EPA constructively failed to have regard to mandatory relevant considerations contained in s 69(4) of the Act in that it approached the consideration of those matters by reference to a potential facility rather than by reference to the specific development as ultimately proposed.
3. Further, or alternatively, the purported decision to grant a development licence by the EPA was unlawful in that it was uncertain whether it was feasible to design a project which complied with the conditions (i.e., whether an approval had in substance been granted) or what a compliance project would entail.
4. Further, or alternatively, it was beyond power of the EPA to make a decision on the basis of a conceptual design in circumstances where the effect of making a decision on a conceptual design was to significantly impact on the ability of third parties to effectively exercise their review rights due to the lack of clarity over the specific development as will ultimately be proposed.

1. PHI relies on the statement of grounds dated 5 February 2024:
   1. This statement of grounds is filed on behalf of Prospect Hill International Pty Ltd ('PHI') in relation to proceeding P1641/2023 ('Proceeding P1641/2023'), which relates to an application for a declaration in relation to the decision of the Environment Protection Authority ('EPA'), made 6 December 2023 ('Decision'), to grant a development licence for the proposed waste-to-energy facility at 164-200 McManus Road, Lara ('subject land').
   2. PHI seeks to be joined as a party to Proceeding P1641/2023 on the basis that the Decision concerns PHI's proposed development. Accordingly, PHI's interests are affected by Proceeding P1641/2023 and it is desirable that PHI be joined as a party.
   3. As a threshold matter, it is not clear how the applicant's interests are affected by the Decision and whether there is a bona fide dispute sufficient to provide the applicant with standing to bring the application, as no details have been provided as to:

a) the land the applicant or its related entities own in the 'vicinity' of the subject land; and > > b) the applicant's participation in the EPA's decision making process in respect of the development licence application, particularly the public consultation process.

Without this information, the standing of the applicant to bring the application is not clear. Unless this is established by the applicant, then Proceeding P1641/2023 should be summarily dismissed.

1. On the basis that the applicant's standing is established, the application for declaration should be summarily dismissed as the declaration sought is of no utility, given that:

a) irrespective of the outcome of the application for declaration, the Decision has been made under the Environment Protection Act 2017 (Vic), as provided for by section 4(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); > > b) the Decision is the subject of a separate application for review made in proceeding P1642/2023 by the same applicant. In determining proceeding P1642/2023, the Tribunal will 'stand in the shoes' of the EPA and make its own determination of the application for development licence; and > > c) even if the Tribunal was to make the declaration sought by the applicant in this Proceeding P1641/2023, namely that the Decision is affected by jurisdictional error, this would not preclude the Tribunal considering and determining the application for review in proceeding P1642/2023.

For these reasons, the question of whether the Decision itself was affected by jurisdictional error is of no practical consequence, and this Proceeding P1641/2023 should be summarily dismissed on the basis that it is misconceived.

1. In the alternative, if the Tribunal does not summarily dismiss this Proceeding P1641/2023, then PHI relies on the following grounds:
   1. The approach of the EPA in assessing the application did not amount to a constructive failure to exercise the EPA's jurisdiction.
   2. The EPA did not fail to have regard to mandatory relevant considerations contained in s 69(4) of the Act.
   3. The decision of the EPA to grant a development licence was not unlawful on the basis that it was uncertain whether it was feasible to design a project which complied with the conditions or what a compliant project would entail.
   4. The decision of the EPA was not beyond power on the basis that it was made in circumstances where third parties ability to exercise their review rights was impacted.

Joint statement of facts agreed and not agreed

1. The Tribunal's orders dated 17 June 2024 required the parties to prepare a Joint Statement of Facts Agreed and Not Agreed ('JSOAF').
2. Below sets out the facts agreed, followed by the facts not agreed between the parties to the Declaration Proceeding as at the date of the statement being filed, being 23 July 2024:
   1. On 17 February 2021 Prospect Hill International Pty Ltd (PHI) lodged works approval application 1004200 (Application) with the Environment Protection Authority (EPA), in relation to an energy-from-waste facility capable of treating 400,000 tonnes per year of residual municipal solid waste (80%) and commercial and industrial waste (20%) and generating 35 MW of electricity (Project), to be situated on the land at 164-200 McManus Road, Lara (subject land).
   2. The Application was accompanied by a number of appendices:
      1. Appendix A - General Information prepared by Jacobs Group (Australia) Pty Ltd (undated);
      2. Appendix B - Supporting Information prepared by Jacobs Group (Australia]) Pty Ltd (undated);
      3. Appendix C - Greenhouse Gas Assessment prepared by Jacobs Group (Australia) Pty Ltd (undated);
      4. Appendix D - Air Quality Impact Assessment, Revision 1, prepared by Jacobs Group (Australia) Pty Ltd dated 6 October 2020;
      5. Appendix E - Noise Assessment Report , Revision A.1, prepared by Jacobs Group (Australia) Pty Ltd dated 19 September 2020;
      6. Appendix F - Health Impact Assessment, Revision C, prepared by EnRisks dated 25 January 2021;
      7. Appendix G - Cultural Heritage Due Diligence Assessment, Revision A, prepared by Jacobs Group (Australia) Pty Ltd dated 16 June 2020;
      8. Appendix H - Qualified Desktop Flora and Fauna Assessment, Revision 2, prepared by Jacobs Group (Australia) Pty Ltd dated 2 June 2020;
      9. Appendix I - Land and Groundwater Desktop Contamination Assessment, Rev 0, prepared by Jacobs Group (Australia) Pty Ltd dated 21 September 2020;
      10. Appendix J - Land and Groundwater Contamination, Rev 0, Site Investigation Report prepared by Jacobs Group (Australia) Pty Ltd dated 21 September 2020;
      11. Appendix K - Traffic Impact Assessment, Revision 1, prepared by Jacobs Group (Australia) Pty Ltd dated 26 October 2020;
      12. Appendix L - Landscape and Visual Assessment, Revision 0, prepared by Jacobs Group (Australia) Pty Ltd dated 24 September 2020;
      13. Appendix M - Concept Design Basis Report prepared by Jacobs Group (Australia) Pty Ltd dated 15 April 2020; and
      14. Appendix N - BREF 2019 Compliant Flue Gas Treatment Reference Plants dated 25 September 2020;
   3. The subject land is a vacant rectangular parcel approximately 158,093 square metres in size, predominantly within an Industrial 2 Zone, with a small section of land on the northern boundary located within the Farming Zone. The subject land is located approximately 1.2 kilometres south-west of the township of Lara, within the Geelong Ring Road Employment Precinct.
   4. The Application was made pursuant to s 19B of the Environment Protection Act 1970 (Vic) (former EP Act).
   5. The former EP Act has now been replaced by the Environment Protection Act 2021 (Vic) (EP Act). Pursuant to section 474 of the EP Act, which commenced on 1 July 2021, a works approval application which was made under the former EP Act is taken to be a development licence application made under the EP Act.
   6. Chapter 7 of the Application contains the Project Description. The Chapter provides "a description of the technology, the concept design and the project implementation process for the proposed project". The Concept Design Basis Report was Appendix M of the Application.
   7. The Application was referred to the following government agencies:
      1. Minister for Planning
      2. Recycling Victoria
      3. Sustainability Victoria
      4. WorkSafe Victoria
      5. Barwon Region Water Corporation
      6. City of Greater Geelong.
   8. Between 24 March - 28 April 2021, the Application was subject to the first of three periods of public advertising and submissions. In response, 63 submissions were received of which 59 objected to the Application.
   9. On 12 May 2021 EPA issued the first of six requests for information notices (RFI) to PHI under the relevant provisions of the former EP Act and the EP Act. This notice required a response to the submissions received between 24 March - 28 April 2021 and referral agency comments from Sustainability Victoria, Barwon Region Water Corporation, City of Greater Geelong and the Barwon South West and Metropolitan Waste and Resource Recovery Groups.
   10. On 13 July 2021, a conference of interested persons (subject to an attendance limit due to COVID) pursuant to s 236 of the EP Act was held.
   11. On 22 July 2021 EPA issued the second RFI requiring completion of EPA forms f1017 and f1018 relating to fit and proper person and prohibited person questionnaires.
   12. On 28 July 2021 EPA issued the third RFI requiring a response to the s 236 conference of interested persons report and the Chair's recommendation and the referral agency comments from Sustainability Victoria.
   13. On 10 September 2021 PHI submitted EPA forms f1017 and f1018 in response to the second RFI.
   14. On 20 September 2021 PHI submitted 'Response to s50(3) Notice and s236 Conference of Interested Persons Report' in respect of the first and third RFIs.
   15. On 7 October 2021 EPA issued the fourth RFI requiring a response to the referral agency comments from Barwon Region Water Corporation.
   16. On 15 October 2021 PHI responded to the fourth RFI by submitting a response to Barwon Region Water Corporation's comments.
   17. Between 13 - 26 October 2021, the Application was subject to a second period of public advertising and submissions. In response 58 submissions were received of which 56 objected to the Application.
   18. On 18 November 2021 EPA issued the fifth RFI requiring further details on the proposed Engineering, Procurement and Construction tender process, a response to Sustainability Victoria referral comments and a response to the Victorian Waste to Energy Framework.
   19. On 9 December 2021 EPA issued the sixth RFI requiring an updated noise impact assessment prepared in accordance with the Noise Protocol, a direct summary of details of measures proposed to comply with the general environmental duty in relation to air emissions and odour, information on greenhouse gas emissions including potential impact from variation in feedstock overtime and further fit and proper person assessment details.
   20. On 24 August 2022 PHI submitted a revised noise impact assessment in response to the sixth RFI. PHI also submitted a response to submissions received between 13 and 28 October 2021.
   21. On 10 November 2022 PHI submitted 'EPA Victoria - Development Licence Application Request for further information pursuant to s 50(3) of the Environment Protection Act 2017' in response to the fifth RFI.
   22. On 11 November 2022 PHI submitted further fit and proper person assessment details in response to the sixth RFI.
   23. On 21 November 2022 PHI submitted a direct summary of details of measures proposed to comply with the general environmental duty with regard to air emissions and odour and information on greenhouse gas emissions in response to the sixth RFI.
   24. On 6 January 2023 PHI submitted further details on the Engineering, Procurement and Construction tender process, a response to Sustainability Victoria referral comments and a response to the Victorian Waste to Energy Framework in response to the fifth RFI.
   25. Between 22 June to 13 July 2023, the third period of public comment occurred in respect of the Application. In response 101 submissions were received of which 95 objected to the Application.
   26. On 6 December 2023 the EPA issued Development Licence DL000300041 (Licence) and produced the Development Licence assessment report (Assessment Report).
   27. The Assessment Report sets out the basis on which the EPA made its decision to issue the Licence and identifies the matters which it considered relevant in making its decision. A list of materials referenced in the Assessment Report is set out from page 223 of the Assessment Report.
   28. The Licence is subject to 17 conditions.

1. There are no facts that are not agreed at this stage.
2. Thus, three matters provide important context to the determination of the proceeding:
   1. the Application submitted by PHI;
   2. EPA's assessment of the Application; and
   3. the terms of the Development Licence.
3. These are addressed in turn further below.

1. It is common ground that:
   1. on 17 February 2021, PHI lodged an application for a works approval in accordance with section 19B of the former EP Act 1970 ('Application').
   2. at the time the Application was lodged, the former EP Act 1970 was in force. Pursuant to section 19A of the former EP Act 1970, a works approval was required prior to the commencement of the construction or installation of plant or equipment that was likely to cause an increase or alternation in the waste discharged from certain types of premises.[7]
   3. on 1 July 2021, the former EP Act 1970 was replaced with the EP Act 2017 and pursuant to section 474 of the EP Act 2017, a works approval application made under the former EP Act 1970 is taken to be a development licence application made under the EP Act 2017;
   4. the framing of the Application in the form of a concept plan per se is not impermissible;
   5. the EU Framework compromised in the documents referred below is the 'best available techniques and technologies' ('BATT') for the purpose of WtE proposals with respect to compliance with s69(3)(d) of the EP Act 2017:
      1. the European Union Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) ('2010 EC IED');
      2. in December 2019 the EU issued the 'Best Available Techniques (BAT) Reference document for Waste Incineration (Industrial Emissions Directive 2010/75/EU (Integrated Pollution Prevention and Control 2019)' ('2019 BREF'); and
      3. the conclusions from the 2019 BREF ('2019 BATC').

1. In its closing submissions on the final day of the hearing, Bisinella said that its case had been misunderstood by PHI and EPA.
2. Bisinella then attempted to perfect its submissions by placing greater emphasis on how EPA purportedly and erroneously addressed the General Environmental Duty ('GED') when considering the Application and the intersection with BATT under the EU Framework. Further, Bisinella said that a key component of the GED, the requirement to reduce risk 'to the extent reasonably practicable' was omitted from the EPA's decision making process, and this was where the error by the EPA emerges.
3. PHI and EPA said they were somewhat taken by surprise by Bisinella's closing submissions, but were given opportunity to respond. They in turn made submissions that it was their respective cases which had also been misunderstood by Bisinella. They too were given the opportunity to perfect their submissions, which they did orally, on the last day of the hearing.
4. This discord about misinterpretations by parties of respective submissions resulted in:
   1. the Tribunal making orders after the hearing asking the parties to file a joint statement identifying the key issues for determination with respect to each ground relied upon by Bisinella to the Tribunal after the hearing; and
   2. Tribunal considering it should listen to the audio recording of the entire hearing, a time consuming exercise which has resulted in a delay in the delivery of this determination.
5. The issues are set out in these reasons under each ground. In agreeing to the issues, the parties noted these issues do not constitute the entirety of the matters put to the Tribunal in the hearing and that the Tribunal will need to make its determination based on all submissions and materials put before it.

1. The Application was constituted by:
   1. an application report;
   2. an application summary report; and
   3. various appendices, being:
      1. Appendices A - B, setting out general and supplementary information to the Application;
      2. Appendices C - L, addressing technical analysis in different environmental disciplines (including but not limited to risks relating to air quality and noise); and
      3. Appendices M and N, addressing the concept design and reference plants that informed the Application.
2. The Application report was prepared by Jacobs dated 10 February 2021 and provides the following summary of the proposal:[8]

The Prospect Hill Energy from Waste Project (the Project) proposes the development of an EfW plant near Lara, Geelong. The Project proposes to use conventional moving grate boiler technology, with a steam boiler and steam turbine to recover energy by combusting non-hazardous Municipal Solid Waste (MSW) supplemented with Commercial and Industrial (C&I) waste. The plant aims to divert approximately 400,000 tonnes per annum (tpa) of MSW and C&I waste from landfill and generate approximately 35 megawatts of electricity (MWe) which will be fed into the existing grid.

1. The Application report prepared by Jacobs described the key elements of the proposal and contained a conceptual layout for the facility, and specified key operating parameters.
2. Relevantly, a 'concept design' was utilised to inform aspects of the assessment, which design was proposed to be revised and refined through the detailed design and procurement phases of the project.
3. Chapter 7 of the Jacob's report is headed 'project description' and includes:
   1. the key plant parameters set out in Table 7.1 These include the key design parameters and inputs that would inform the design and operation of the facility, including 'design life', 'number of boiler lines', 'number of steam turbines', 'annual auxiliary fuel consumption', 'typical hours of operation',' design waste throughput of each boiler', 'target main steam conditions from boiler', and 'stack height'. The description of each of the technological processes to be undertaken within the proposal is set out in Part 7.4 of the Application.[9]
   2. a conceptual layout of the plant was shown in Figure 7.1 (refer below) and was said 'to inform the works approval and planning processes and also potential Engineer Procure Construct (EPC) Contractors of the general expectations of site location, plant orientation, road access and existing site interfaces', and that it is expected that the 'layout will be updated and refined' during the detailed design phase of the Project':[10]

1. a description of each of the technological processes to be undertaken within the proposal was set out in Part 7.4 and includes:
   1. a general plant overview (Part 7.4.1);[11]
   2. descriptions of each of the main components of the proposal, including:
      • the waste reception, tipping hall and storage bunker (Part 7.4.2);[12]
      • the moving combustion grate (Part 7.4.3);[13]
      • the waste feedstock sources and composition (Part 7.4.4);[14]
      • the furnace and heat recovery boiler (Part 7.4.5);[15]
      • the flue gas emission control systems (Part 7.4.6);[16]
      • the steam turbine and generator (Part 7.4.7);[17]
      • the condensate and feedwater systems (Part 7.4.8);[18]
      • the cooling water system (Part 7.4.9);[19] and
      • the balance of plant (Part 7.4.10).[20]
   3. Part 7.4.6 of the Application described the flue gas emission control system and stated:
      • that air emissions from the stack are the 'most regulated and controlled emissions from an WtE facility', and that the plant will be required to have 'continuous (24/7) emission monitoring systems...for the majority of pollutants to ensure compliance with the air quality requirements';[21]
      • in Europe, the Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) ('2010 EC IED') 'sets out stringent emissions levels' for a series of pollutants, and that in December 2019 the EU issued the 'Best Available Techniques (BAT) Reference document for Waste Incineration (Industrial Emissions Directive 2010/75/EU (Integrated Pollution Prevention and Control 2019)' ('2019 BREF'), which included recommendations to tighten flue gas emission limits for new plants.[22] And whilst there are very few operating plants that have been designed to comply with the 2019 BREF standard, design techniques (identified in Table 7.2) have been identified that can achieve that level of performance;[23]
      • the various elements of the flue gas treatment system to be implemented in respect of the proposal, which include an advanced Selective Non Catalytic Reduction ('SNCR') system (part 7.4.6.2.1), a flue gas recirculation system (part 7.4.6.2.2), a dry / semi dry absorbent reactor system (part 7.4.6.2.3), the Circulating Fluid Bed ('CFB') reactor design (part 7.4.6.2.4) or the loop reactor design with reagent recirculation (part 7.4.6.2.5), the bag filtration system (7.4.6.2.6), the various reagents that will be utilised (7.4.6.2.7) and the Continuous Emission Management ('CEM') system (7.4.6.2.8);
   4. that a dry, semi-dry, or part dry/part semi-dry absorbent reactor system would be adopted within the proposal. Furthermore, to 'accommodate potential changes in waste composition identified during the detailed design phase', an allowance would be made to include an additional flue gas dosing system. One of the two flue gas technologies would be utilised: a CFB system or a loop reactor design with reagent circulation (as described in parts 7.4.6.2.3 and 7.4.6.2.4 respectively). However, the application report made clear 'both types of flue gas treatment systems are fairly similar in their functionality and purpose and are very similar to what is offered by other global technology suppliers;[24]

1. the reference plants used to inform aspects of the assessment were identified in Part 7.5 of the Application report. These included the identification of three plants utilising CFB technologies (as part of the flue gas reticulation process) and three plants utilising loop reactor and recirculation technologies (as part of the flue gas reticulation process). The reference plants were designed to achieve compliance with the 2010 EC IED emissions standards, but went on to specify the 'additional' design changes that would be needed in order for each reference plant to achieve compliance with the more stringent 2019 BREF emissions standards;[25]
2. the energy efficiency specifications for the proposal were set out in Part 7.6; and
3. the construction, commissioning, and operating phases of the proposal were addressed at Parts 7.7. - 7.9 respectively.

1. Appendix M to the Application contained the 'concept design basis report' dated 15 April 2020 and that report:
   1. described the subject land (at Part 2);
   2. identified various assumptions that informed the preparation of the concept design (at Part 3);
   3. set out consultation undertaken with third parties and stakeholders in the preparation of the design (Part 4);
   4. described the design basis of the concept design (Part 5), including in respect of:
      1. site conditions (Part 5.1);
      2. design parameters (Part 5.2);
      3. key plant outputs (Part 5.3);
   5. contained the conceptual site layout (at Appendix A); and
   6. contained various technical specifications concerning heat balance diagrams (at Appendix B), climatic site conditions (at Appendix C), a single line diagram (at Appendix D), and water balance (at Appendix E).
2. For the assessment of environmental effects of the proposal, there was documented within the application report an assessment of environmental best practice (chapter 4), the outcomes of community consultation (chapter 5), a risk assessment (chapter 6), and assessments of various aspects of environmental performance, including (but not limited to):
   1. energy use and greenhouse gas emissions (Chapter 11, Appendix C);
   2. air quality (Chapter 12, Appendix D);
   3. noise (Chapter 12, Appendix E); and
   4. human health (chapter 14, Appendix F)

Process following lodgement - requests further information

1. Between May 2021 and July 2023, six tranches of further information were requested by the EPA, and provided by PHI, and three tranches of public consultation and submissions occurred.
2. The further information request included:
   1. a request that an updated noise impact assessment be prepared in accordance with EPA Publication 1826/4: 'Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues' (the 'noise protocol'); and
   2. a request for a direct summary of measures proposed to comply with the GED with regard to air emissions and odour.
3. These requests were responded to by submission of:
   1. 'Prospect Hill Energy from Waste Facility - Noise Impact Assessment Revision No: 2', dated 24 August 2022); and
   2. 'Memorandum: EPA Victoria - Development Licence Application: Request for further information pursuant to s 50(3) of the Environment Protection Act 2017' (dated 10 November 2022).

EPA'S assessment of the application - overview

1. On 6 December 2023, the EPA decided to grant the Development Licence subject to conditions ('Decision').
2. The Decision was supported by an assessment report prepared by the EPA entitled, the EPA's Development Licence Assessment Report also dated 6 December 2023 ('Assessment Report'),[26] consisting of nine parts and seven appendices.

1. The Executive Summary contained in the Assessment Report contains a summary of:
   1. the development licence application details comprising the Application details:[27]

1. the EPA assessment framework;[28]
2. referral agency consultation;[29]
3. community engagement;[30]
4. EPA's assessment setting out the following summary conclusions:[31]

1. Identification of a series of conditions 'which, when implemented, will further reduce risk of harm to human health and the environment (Table C)':[32]

1. The future steps required for the proposal to move forward, noting the Development Licence only allowed for the construction or installation of plant and equipment, but does not allow for its ongoing operation, and there are pre-conditions to obtaining an operating licence including:[33]

1. Parts 1 - 4 of the Assessment Report were about the preliminary steps, addressing the background to the Assessment (Part 1); the activity site (Part 2); an overview of the proposal (Part 3); and the consultation undertaken in respect of the proposal (Part 4).
2. The Assessment Report acknowledged there are more than 1,600 operational WtE facilities globally,[34] and while there are no comparable facilities presently operating in Victoria, there were a number of WtE facilities that have been approved and licenced by the EPA over the past five years, including several large-scale WtE facilities that will operate using similar technologies to that proposed to be utilised in this proposal.[35]
3. Part 3 of the Assessment Report contained a detailed description of the proposal including relevantly:
   1. a description of the moving grate combustion technology as being a 'type of combustion or thermal treatment technology [that] is one of the most common types of WtE facilities' (Part 3.1);[36]
   2. details of the Conceptual design and configuration that informed the assessment (Part 3.2). That description relevantly:
      1. stated that the concept design had been prepared with input Jiangsu Power Design Institute, that it would be subject to Engineering, Procurement and Construction ('EPC') tender process, and that this was 'a common approach for large complex industrial facility projects like this proposal';[37]
      2. stated that that concept design includes benchmarks informed by 'relevant published state of knowledge documents' including 'internationally recognised BAT for EfW in the EU', expressed as:[38]

1. recorded the key plant design and performance parameters that had informed the EPA's assessment;[39]
2. reproduced the activity site plan;[40] and
3. contained descriptions of the nature and operation of each of the main technological components of the proposal.[41]
4. Part 3.5 contained a description of the design resolution that would occur as part of the EPC tender process. In doing this, the EPA provided the following explanation concerning the basis of its assessment as it related to the concept design:[42]

1. Part 3.6 contained a description of the reference facilities cited within the Application, noting that those facilities were designed to achieve compliance with the 2010 EC IED standard, and the measures that would need to be implemented in order to ensure that they complied with the 2019 EU Standards (the 2019 BREF and 2019 BATC).[43]
2. Parts 5 - 7 of the Assessment Report documented the EPA's assessment of the proposal.

1. Part 5 of the Assessment Report described the assessment framework. The EPA said that it 'takes an evidence and risks-based approach to its regulatory function and decision-making under the permissioning framework'.[44] Further, the EPA explained that the Application was assessed against:
   1. the EP Act 2017, EP Regulations, Environmental Reference Standards (Victorian Government Gazette No S 245), and relevant EPA Guidelines;
   2. the matters set out in section 69 of the EP Act 2017; and
   3. the requirements of other relevant statutory frameworks.
2. Part 6 of the Assessment Report sets out the EPA's more detailed assessment of the Application. In assessing concept design and performance-based applications the EPA said:[45]

1. The EPA's assessment contains an assessment of the measures taken or proposed to be taken by PHI, as a means of complying with the GED, in Part 6.1. That assessment included specific consideration of:
   • the risk and hazard identification and hazard management framework proposed under the Application (Part 6.1.1);[46]
   • the proposed construction activities (Part 6.1.2);[47]
   • greenhouse gas emissions (Part 6.1.3);[48]
   • air emissions (Part 6.1.4);[49]
   • noise emissions (Part 6.1.5);[50]
   • water, wastewater and stormwater (Part 6.1.6);[51]
   • land and groundwater emissions (Part 6.1.7);[52]
   • odour emissions (Part 6.1.8);[53]
   • waste (incoming) (Part 6.1.9);[54]
   • waste (outgoing) (Part 6.1.10).[55]
2. In each instance, the Assessment Report demonstrated how the conditions contained within the Licence would operate to ensure the GED would be achieved and made the following conclusion respectively:

1. At Part 6.2, the Assessment Report set out the assessment of the impact of the proposed activity on human health and the environment. This included separate and detailed assessments of the proposal as it would concern:
   1. Human health (Part 6.2.1), including by reference to published literature,[56] the Human Health Impact Assessment,[57] psychological health impacts,[58] and concluded that:

1. Climate change and greenhouse gas emissions (Part 6.2.2),[59] and concluded that:

1. Air emissions (Part 6.2.3),[60] and concluded that:

1. Noise (Part 6.2.4),[61] and concluded that:

1. Odour (Part 6.2.5),[62] and concluded that:

1. At Part 6.3,[63] the Assessment Report next considered the proposal by reference to the principles of environment protection (Part 6.3), which relevantly included an assessment of the proposal by reference to the principle of evidence-based decision-making (Part 6.3.7) and the principle of accountability (Part 6.2.10) and concluded:

1. At Part 6.4, the Assessment Report considers 'Best availability techniques and technologies' (as supplemented by the analysis in Appendix F), and in this context the EPA makes the following observations concerning the EU Framework that informed aspects of the assessment:

1. The Assessment Report then considers whether the activity was otherwise consistent with:
   1. the EP Act 2017 and the EP Regulations (Part 6.5), and concluded:[64]

1. the comments received from prescribed referral authorities (Part 6.6), and concluded in each case that the EPA was satisfied the recommendations of the Assessment Report are consistent with referral agency comments;[65]
2. the comment and submissions received from third parties (Part 6.7);[66]
3. the prescribed matters under section 69(h) of the EP Act 2017 (Part 6.8).[67]

1. Part 7 of the Assessment Report addresses other assessment considerations (including other relevant legislative regimes), as well as the relevant prohibited person and fit and proper person requirements.[68]
2. Part 8 of the Assessment Report sets out the EPA's decision (refer below) and in summary stated that:
   1. EPA was satisfied that the proposal:
      1. poses a low and acceptable risk to human health and environment;
      2. includes measures consistent with internationally recognised BATT for WtE facilities;
      3. includes measures that will enable it to comply with the GED;[69]
   2. EPA determined that 'its decision to grant a development licence for the proposal is consistent with the environment protection principles and the interim Victorian Recycling Infrastructure Plan';[70]
   3. additional steps are required on the part of the operator.
3. The EPA stated its decision in Part 8:

1. The Assessment Report explains that the Development Licence includes a set of conditions, which need to be met to EPA's satisfaction:[71]

1. The Development Licence,[72] was issued pursuant to section 69(1)(a) of the EP Act 2017.
2. The prescribed permission activity was identified as 'A08 (Waste to energy)'.
3. The Development Licence is comprised of various parts. The main body of the Development Licence contains various conditions, with the balance comprised of the following appendices:
   1. Appendix 1 - locality plan;
   2. Appendix 2 - activity plan (being the site layout plan forming part of the Application).[73]
4. The conditions are arranged under the following headings:
   1. General conditions, being DL-G1, DL_G02, DL_G03, DL_G04, DL_G05 and DL_G07;
   2. Standard conditions, being DL_C01, DL_C02, DL_C05, DL_C06, DL_C07, DL_W08, DL_W09.1; and
   3. Specific conditions, being DL_R01, RD_R02, DL_R03 and DL_R04.

1. The general conditions include:
   1. DL_G02: a condition that the development activities must be constructed in accordance with specified approved plans and documents, which plans include the Application and the various other materials submitted in response to the EPA's requests for further information. In the event of any inconsistency between the approved documents and the conditions of the Development Licence, the conditions shall prevail;
   2. DL_G03: a condition specifying that the permission allows the construction of a 'moving grate incineration waste to energy facility capable of treating 400,000 tonnes per year of residual municipal solid waste (MSW) (80%) and commercial industrial waste (C&I) (20%) and consisting of 'a series of key components' that comply with the terms of the Application. These relevantly include, in sub-condition (4), a flue gas cleaning system (FCGS) which in turn must (amongst other things):
      1. meet BAT as defined by Article 3(1) of the 2010 EC IED;[74]
      2. comply with the 2019 BATC and the 2019 BREF;[75] and
      3. meet the requirements and procedures (including applicable emission limits) of the 2010 EC IED with any reduced emission levels necessary to reflect the outcomes of the future reports provided under condition DL_R04 and which is capable of:[76]
         1. operating within the BAT-AEL ranges for new plants contained in BAT 25, BAT 27, BAT 28, BAT 29, BAT 30 and BAT 31 of 2019 BATC under transient, part load, and start up and shutdown operating conditions; and
         2. does not exceed the BAT-AEL ranges for new plant contained in BAT 25, BAT 27, BAT 28, BAT 29, BAT 30 and BAT 31 of 2019 BATC under all other operating conditions and reduces emissions within those ranges so far as reasonably practicable.

1. The specific conditions include:
   1. DL_R01: a condition requiring that at least 60 business days before the start of any commissioning, a series of reports - including a construction verification report, a summary report of the site Environment Management System (EMS), and a detailed Commissioning Plan - to be submitted to the EPA;
   2. DL_R04: a condition requiring that at least 60 business days before the start of any construction or installation, a further series of reports be submitted to the EPA. The reports prepared under this condition must be endorsed by a suitably qualified EPA-appointed auditor (or an alternative expert approved by the EPA in writing) or other expert as specified. The reports must address a number of elements of the proposal, including but not limited to:
      1. waste characterisation and acceptance (sub-clauses 1-4);
      2. ongoing testing and investigation of existing or emerging technology options for resource recovery (sub-clause 5);
      3. reports concerning the final detailed designs and schematics of elements of the proposal, including:
         1. the waste feedstock (sub-clause 6),
         2. the optimised facility to treat the waste characteristics specified in the Waste Acceptance Criteria (sub-clause 7),
         3. computerised fluid dynamics modelling of the incineration furnace (sub-clause 8),
         4. the flue gas cleaning system (sub-clause 9),
         5. the primary and back up odour control systems (sub-clause 12),
         6. the noise attenuation controls (sub-clause 13),
         7. the bottom ash treatment system (sub-clause 14),
         8. the water, wastewater, and stormwater infrastructure (sub-clause 16);
      4. various plans concerning different aspects of the proposal's performance, including an air emissions management plan (sub-clause 10), a community consultation and stakeholder engagement plan (sub-clause 11), a residual waste management plan (sub-clause 15), and a construction environment management plan (sub-clause 20);
      5. other matters, including:
         1. an updated human health impact assessment based on the final detailed design of the facility (sub-clause 17);
         2. a life cycle analysis with a GHG assessment based on the final detailed design of the facility (sub-clause 18); and
         3. a baseline conditions report (sub-clause 19).
2. The condition DL_R04 matters were described in the Assessment Report as a means of 'validating' and 'verifying' the relevant aspects of the concept design. Refer for example:
   1. in relation to the FGCS, the Assessment Report stated:[77]

1. in relation to sub-condition (17) requiring an updated human health risk assessment based on the final detailed design of the facility, the Assessment Report stated in Chapter 6.2.1, referring to the review that the EPA had undertaken of scientific literature on potential human health effects associated with air emissions from WtE facilities, that:[78]

Historic context and new regime under EP Act 2017

1. Certain aspects of the legislative history assist in understanding the operation of the permission framework established under the EP Act 2017:
   1. the EP Act 2017 was introduced with the intent of modernising the EPA, including its governance, legislative and regulatory framework.[79] One of the key reforms introduced by the EP Act 2017 was the establishment of a new prevention - focussed regulatory scheme, at the heart of which is the GED;[80]
   2. the EP Act 2017 also introduced a modernised and streamlined permissions framework in Part 4, which is designed to better manage risks of harm to human health and the environment;
   3. the new permissions framework seeks to complement the GED in a way that seeks to benefit businesses and the community by providing additional guidance and support to better manage compliance and risk;[81]
   4. consistent with the risk-based approach of the GED, the permissions framework moved away from the traditional premises -based approval under the former EP Act 1970, and instead applies to 'activities';
   5. as such, approval is no longer required in respect of particular works (as was the case under the former EP Act 1970), but rather seeks to regulate the associated design, manufacture, construction and installation activities;[82]
   6. there are corresponding differences in the application requirements between the two regimes,[83] the matters that must be taken into account by the EPA in determining applications,[84] and the specification of the types of conditions that may be implemented in approvals.[85]

The purpose of the EP Act 2017[86]

1. The purposes of the EP Act 2017 are described in section 1:

Purposes

1 The main purposes of this Act are -

(a) to provide for the continuation of the Environment Protection Authority; and

(b) to specify a new objective of the Environment Protection Authority; and

(c) to provide for a new governance structure of the continued Environment Protection Authority; and

(d) to provide for the Governing Board of the Environment Protection Authority; and

(e) to set out principles of environment protection; and

(f) to set out the legislative framework for the protection of human health and the environment from pollution and waste; and

(g) to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and

(h) to establish a permissions scheme that enables the Environment Protection Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations; and

(i) to provide a framework for the management of waste; and

* * * * *

(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and

(l) to provide for a system of criminal and civil penalties; and

(m) to provide for a system of civil remedies and compensation orders available to the Court; and

(o) to make consequential amendments to the Public Administration Act 2004 and other Acts.

1. The legislative framework for the protection of human health and the environment from pollution and waste relevant in this proceeding includes:
   1. the approvals regime established by Part 4 of the EP Act 2017; and
   2. the general environmental duty imposed by section 25 of the EP Act 2017.

1. The expressly stated objective of the EPA is set out in section 357 of the EP Act 2017 which provides:

(1) The objective of the Authority is to protect human health and the environment by reducing the harmful effects of pollution and waste.

(2) The Authority must exercise its powers and perform its duties and functions under this Act or any other Act for the purposes of achieving the objective set out in subsection (1) to the extent that it is practicable to do so having regard to the nature of the power being exercised or the duty or function being performed.

1. The powers of the EPA are set out in section 359 of the EP Act as follows:

359 Powers of the Authority

(1) The Authority has -

(a) any power conferred on the Authority under this or any other Act; and

(b) the power to do all things that are necessary or convenient to be done for or in connection with the performance of the Authority's functions and duties and to enable the Authority to achieve its objective.

(2) The Authority may give advice to a person who has a duty or obligation under this Act about complying with that duty or obligation.

(3) The Authority's power under subsection (2) to give advice may also be exercised by an authorised officer.

(4) The giving of advice under subsection (2) by the Authority or an authorised officer does not give rise to -

(a) any liability of, or other claim against, the Authority; or

(b) any right, expectation, duty or obligation that would not otherwise be conferred or imposed on the person given the advice; or

(c) any defence that would not otherwise be available to that person.

(5) The Authority has power -

(a) to apply for, obtain and hold intellectual property rights (including patents, copyrights, trade marks and registered designs); and

(b) to enter into agreements or arrangements for the commercial exploitation within or outside Victoria of those intellectual property rights and ancillary services on any terms or conditions as to royalties, lump sum payments or otherwise as the Authority may see fit.

1. Part 4 of the EP Act 2017 establishes a regime for the grant of approvals (described as 'permissions' in the EP Act 2017) for activities which may affect the environment.

Part 4.2 - Permissions required for certain activities

1. Part 4.2 prohibits persons from engaging in specified or prescribed activities without a permission. It sets out 'Permissions required for certain activities' and this includes issuing development licences to authorise activities for prescribed development activity.
2. Section 44 relevantly provides:
   1. Development licences required for development activities

(1) A person must not engage in one or more of the following activities except as authorised by a development licence in respect of the activity -

(a) the construction or installation of plant or equipment for a prescribed development activity;

(b) the development of processes or systems for a prescribed development activity;

(c) the modification, other than general maintenance, of plant, equipment, processes or systems for a prescribed development activity or of the operation of a prescribed development activity -

(i) if the modification creates a risk of material harm to human health or the environment from pollution or waste; or

(ii) in prescribed circumstances.

Penalty: In the case of a natural person, 2000 penalty units;

In the case of a body corporate, 10 000 penalty units.

Note

Section 314 provides that subsection (1) is a civil penalty provision. The penalty for contravention of this civil penalty provision is set out in the table in section 314.

(2) Subsection (1) does not apply -

(a) in respect of any action or thing the person takes or does to comply with -

(i) a pilot project licence issued to the person that is in force in respect of the activity; or

(ii) an authorisation granted to the person under section 157 that is in force in respect of the activity; or

(iii) an exemption granted to the person under section 80(1) that is in force in respect of the activity; or

(iv) requirements specified under section 48(a) in respect of the activity; or

(b) in respect of any action or thing that the person is required to take or do under an improvement notice or environmental action notice; or

(c) if a prescribed exemption applies to the person.

(3) An offence under subsection (1) is an indictable offence.

Note

This offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).

1. Section 3(1) of the EP Act defines the term 'activity' as follows:

activity includes -

(a) the storage or possession of waste or any other substance or thing; or

(b) anything prescribed to be an activity;

1. Regulation 16 of the EP Regulations contains Chapter 3 - 'Permissions' and r 16(1) provides
   1. Permission activities

(1) For the purposes of section 44 of the Act, an activity set out in column 3 of the Table in Schedule 1 is a prescribed development activity if the corresponding entry in column 4 of that Table specifies that the activity is a prescribed development activity.

(2) ...

1. Schedule 1 of the EP Regulations sets out 'Prescribed permission activities and fees'. The relevant prescribed permission activity in this proceeding is under the heading 'A: Waste treatment, disposal, transport and recycling', item 12, 'AO8 (Waste to energy)' with the description of the prescribed permission activity (column 3) being:

Recovering energy from waste at a rated capacity of at least 3 megawatts (MW) of thermal capacity or at least one MW of electrical power'

1. The activity is both a prescribed development activity and prescribed operating activity under column 4. This means that both a development licence and an operating licence under the EP Act is required, unless an exemption applies.[87]

Part 4.3 - General provisions relating to permissions

1. Part 4.3 of the EP Act sets out the application, transfer and amendment processes for permissions, and other provisions that apply to permissions generally. It contains 'General provisions relating to permissions' which, in most cases, apply to all applications for approvals, regardless of type. These include provisions relating to the form and content of applications, requirements for notice of development licence applications specifically, and a power to impose conditions.
2. Section 50 of the EP Act sets out the form and contents of applications:

50 Form and contents of applications

(1) An application for a permission must -

(a) be made -

(i) in the case of an application made to the Authority, in a form and manner approved by the Authority; or

(ii) in the case of an application made to a council, in the prescribed form and manner; and

(b) be accompanied by the prescribed fee (if any) for the application; and

Note

An additional fee may be payable under section 50A.

(c) specify whether the application is for -

(i) a development licence; or

(ii) an operating licence; or

(iii) a pilot project licence; or

(iv) a permit; or

(v) a registration;

(d) specify the activity in relation to which the permission is sought; and

(e) include any prescribed information.

(2) The Authority or a council -

(a) must not deal with an application that does not comply with this section; and

(b) must advise an applicant if an application does not comply with this section.

83 My understanding is that there are no prescribed matters of relevance in this case.

51A Authority or council may require additional information

The Authority or council (as the case requires) may require an applicant to provide the Authority or council with any information relating to a relevant permission application that the Authority or council considers necessary.

1. Section 52 of the EP Act concerns the nature of notice to be given in respect of an application for a development licence. Section 52(2)(b) provides that a notice must, amongst other things, describe the activity that is the subject of the application.[88]
2. Section 53 of the EP Act provides that the EPA must developed a Charter of Consultation. That charter is contained in EPA Publication 1928 (published on 15 June 2021).
3. Section 54 of the EP Act 2017 provides that the EPA may issue a permission subject to conditions specified in the permission:
   1. Permission conditions

(1) The Authority or a council may issue a permission subject to conditions specified in the permission.

(2) Without limiting subsection (1), the Authority or council may specify that a permission is subject to a condition -

(a) specifying measures the permission holder must take to comply with the general environmental duty when engaging in the permission activity; or

(b) measures the permission holder must take to meet the objects set out in section 111 when engaging in the permission activity; or

(c) ensuring that the permission activity is engaged in consistently with the Victorian Recycling Infrastructure Plan; or

(d) relating to the commissioning of plant or equipment, including the setting of performance standards for the commissioning of plant or equipment; or

(e) relating to the monitoring, testing or analysis of any impacts of engaging in the permission activity; or

(f) requiring the permission holder to provide monitoring data, information or performance reports to the Authority or council, the public or both; or

(g) relating to consultation with the local community; or

(h) requiring the permission holder to report to the Authority or council on compliance with the conditions of the permission; or

(i) relating to pollution incident planning, reporting or responses; or

(j) relating to the cessation of the permission activity; or

(k) requiring the permission holder to provide a financial assurance; or

(l) relating to any prescribed matter.

(3) Without limiting subsection (1), the Authority or council may specify that a permission is subject to a condition -

(a) that the permission activity must only be engaged in at a specified place or using a specified vehicle; or

(b) requiring a person or class of persons approved by the Authority or council to engage in a specified activity.

(4) For the purposes of subsection (2)(f), the Authority or council may specify in the permission -

(a) the intervals of time at which any monitoring data, information and performance reports must be supplied to the Authority or council or provided to the public; and

(b) the form and manner in which that data and information must be supplied to the Authority or council or provided to the public.

[Tribunal emphasis]

1. Part 4.4 of the EP Act sets out provisions that apply to development licences, operating licences and pilot project licences and applications relating to those licences.
2. In particular, Division 1 contains provisions relating to the grant of development licences.
   1. Development licences

(1) The Authority must, not later than 4 months after receiving an application for a development licence that complies with section 50 -

(a) issue a development licence subject to any specified conditions that the Authority considers appropriate; or

(b) refuse to issue a development licence.

(2) The Authority must refer an application for a development licence to a prescribed agency for comment in the prescribed circumstances.

(3) When determining whether or not to issue a development licence, the Authority must take into account -

(a) any measures the applicant has taken or proposes to take in order to comply with the general environmental duty when engaging in the activity that is the subject of the application; and

(b) the impact of the activity on human health and the environment, including the impact on any environmental values identified in any relevant environment reference standard, taking into account any other activities being or proposed to be engaged in by the applicant or any other person; and

(c) the principles of environment protection; and

(d) the best available techniques or technologies; and

(e) whether the activity is otherwise consistent with this Act and the regulations;

(f) if the regulations require the Authority to refer the application to a prescribed agency, any comments or submissions received from that agency; and

(g) any comments and submissions received -

(i) in response to the notice of the application published under section 52; and

(ii) within the time specified in that notice; and

(iii) any prescribed matter.

(4) The Authority must refuse to issue the development licence if -

(a) the Authority considers that the activity that is the subject of an application poses an unacceptable risk of harm to human health or the environment; or

(b) the Authority determines that the person is not a fit and proper person to hold a development licence; or

(c) any prescribed circumstances exist.

(5) The development licence must specify the date on which the development licence expires.

(6) If the Authority decides to issue a development licence, the Authority must, within 5 business days of issuing the licence, take reasonable steps to notify each person who made a submission in relation to the application for the licence of the following -

(a) the decision to issue the licence;

(b) that certain persons may seek review of the decision under section 434.

[Tribunal emphasis]

1. For the purposes of section 69(2) of the EP Act 2017 and the requirement to refer an application for a development licence to a prescribed agency for comment in the prescribed circumstances, Regulation 22 of the EP Regulations applies.
2. In particular, Regulation 22(1) provides:

1. Referral of development licence applications to prescribed agencies

(1) For the purposes of section 69(2) of the Act, the following agencies are prescribed -

(a) in the case of an application to conduct extractive industry or mining activities, the Minister administering the Mineral Resources (Sustainable Development) Act 1990;

(b) in the case of an application relating to an activity that is to be engaged in within one or more municipal districts, any responsible authority within the meaning of the Planning and Environment Act 1987;

(c) in the case of a significant development licence application, the Secretary to the Department of Health;

(d) any agency to which the Authority considers it appropriate in the circumstances to refer the application for comment.

1. Sub-regulations 22(3) and (4) of the EP Regulations set out what the respective roles are for the responsible authority and the Secretary to the Department of Health if they are referred an application for a development licence as a prescribed agency for comment.
2. For the purposes of section 69(4)(c) of the EP Act 2017 and the mandatory requirement to refuse to issue the development licence if any prescribed circumstances exist, Regulation 22(5) of the EP Regulations states:

(5) For the purposes of section 69(4)(c) of the Act, the following are prescribed circumstances -

(a) the proposed activity that is the subject of the application is prohibited by a planning scheme, unless the Authority has been advised under subregulation (2)(b) that an amendment to the planning scheme is to be prepared;

(b) the Secretary to the Department of Health provides written comments under subregulation (4) objecting to the issue of the development licence on the ground that public health is likely to be endangered if the development licence is issued.

1. There were no prescribed matters with respect to the Application at the time the EPA made the Decision.

1. The matters set out in section 69(3) engage various other provisions within the EP Act. These other provisions include:
   1. the general environmental duty in section 25 of the EP Act;
   2. the concept of harm minimisation in section 6;
   3. the term 'harm' defined in section 4; and
   4. the principles of environment protection set out in Part 2.3 of the EP Act.

25 General environmental duty

(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

Notes

See section 6 in relation to the concept of minimising risks of harm to human health and the environment.

Section 314 provides that subsection (1) is a civil penalty provision. The penalty for contravention of this civil penalty provision is set out in the table in section 314. See also section 314(3).

(2) A person commits an offence if the person contravenes subsection (1) in the course of conducting a business or an undertaking.

Penalty: In the case of a natural person, 2000 penalty units;

In the case of a body corporate, 10 000 penalty units.

(3) An offence under subsection (2) is an indictable offence.

Note

This offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).

(4) Without limiting subsection (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable -

(a) use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;

(b) use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;

(c) use and maintain adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised;

(d) ensure that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health and the environment from pollution and waste;

(e) provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the duty under subsection (1).

(5) Without limiting subsection (1), a person who is conducting a business or an undertaking and engaging in an activity that involves the design, manufacture, installation or supply of a substance, plant, equipment or structure, contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking and engaging in the activity, so far as reasonably practicable -

(a) minimise risks of harm to human health and the environment from pollution and waste arising from the design, manufacture, installation or supply of the substance, plant, equipment or structure when the substance, plant, equipment or structure is used for a purpose for which it was designed, manufactured, installed or supplied;

(b) provide information regarding the purpose of the substance, plant, equipment or structure and any conditions necessary to ensure it can be used in a manner that complies with the duty under subsection (1).

Section 6 - harm minimisation

1. Section 6 of the EP Act 2017 provides:
   1. The concept of minimising risks of harm to human health and the environment

(1) A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person -

(a) to eliminate risks of harm to human health and the environment so far as reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.

(2) To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters -

(a) the likelihood of those risks eventuating;

(b) the degree of harm that would result if those risks eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;

(d) the availability and suitability of ways to eliminate or reduce those risks;

(e) the cost of eliminating or reducing those risks.

1. The term 'harm' is defined in section 4 of the EP Act 2017 as:

4 What is harm?

(1) In this Act, harm, in relation to human health or the environment, means an adverse effect on human health or the environment (of whatever degree or duration) and includes -

(a) an adverse effect on the amenity of a place or premises that unreasonably interferes with or is likely to unreasonably interfere with enjoyment of the place or premises; or

(b) a change to the condition of the environment so as to make it offensive to the senses of human beings; or

(c) anything prescribed to be harm for the purposes of this Act or the regulations.

(2) For the purposes of subsection (1), harm may arise as a result of the cumulative effect of harm arising from an activity combined with harm arising from other activities or factors.

1. Chapter 2 of the EP Act 2017 contains the principles of environment protection. This states that it is the intention of Parliament that in the administration of the EP Act 2017 and the regulations, regard should be given to the principles specified in the Chapter.[89]
2. The principles of environment protection set out in Part 2.3 of the EP Act 2017 are:
   1. Principle of integration of environmental, social and economic considerations;
   2. Principle of proportionality;
   3. Principle of primacy and prevention;
   4. Principle of shared responsibility;
   5. Principle of polluter pays;
   6. Principle of waste management hierarchy;
   7. Principle of waste management hierarchy;
   8. Principle of evidence-based decision making;
   9. Precautionary principle;
   10. Principle of equity;
   11. Principle of accountability; and
   12. Principle of conservation.

1. The EPA has published two publications concerning aspects of the permissions process under Part 4 of the EP Act 2017. A brief summary is set out below.

EPA Publication 1799.2 'Permissions Scheme Policy'

1. While the text and structure of the EP Act itself makes plain that the approvals regime contained in the EP Act is a significant mechanism by which the reduction of risks to human health and the environment is to be achieved, the EPA has itself helpfully explained the position in EPA Publication 1799.2, Permissions Scheme Policy ('Permissions Policy)'.
2. The Permissions Policy describes the EPA's approach to implementing the permissions scheme established under Part 4 of the EP Act 2017 which relevantly states:
   1. In Part 3, 'An Overview of the Permissions Scheme':[90]

....

The EP Act introduces a new duties-based framework to target the risks of harm from pollution and waste in a more preventative manner, so that harms to human health and the environment are minimised.

The permissions scheme is an important part of EPA's broader approach to setting performance standards, such as conditions, and supporting and monitoring compliance. The permissions scheme in the new EP Act complements and supports the GED and waste duties by providing greater assurance that key risks are being effectively managed. It does this by prohibiting persons from engaging in specified activities without the appropriate permission and setting standards and customised conditions, including reporting requirements for permission holders.

...

1. In Part 4, Permissioning Tools':[91]

The permissions scheme reinforces the GED and the prevention of harm through the control of who can conduct prescribed activities and participate in aspects of the waste industry, and the application of specific conditions for the conduct of prescribed activities.

The permissions scheme allows a risk-based and proportionate control of activities that present a significant risk to human health and the environment. Over time, the scheme will evolve along with the overall legislative framework, further utilising risk-based mechanisms to incentivise and sustain high performance.

...

Licences are a category of permission that address complex activities that justify the highest level of regulatory control due to the significant risk of harm to human health and the environment or a high potential for mismanagement. Decisions on licence applications will involve a detailed assessment and a licence that is granted will include customised conditions and undergo ongoing oversight by EPA.

1. In Part 4.1.2, 'Development Licence':[93]

A Development Licence (DL) covers the design, construction and modification stages of complex, high-risk activities. The process allows EPA to make a science and evidence-based assessment of the design, seek the views of the community and interested stakeholders, and drive innovation and better practice. This is an important tool in preventing harm as it supports the proponent to more effectively seek options to mitigate risks and allows EPA to influence the design of works or a facility, including operating and management capability, before it is built.

DLs will lead to an Operating Licence or Permit where specified in the Regulations, and once the development activity has been completed, to enable the operational stage of the activity.

The statutory EPA assessment time of DL applications is up to four months. These licences can contain conditions specifically for the commissioning of the plant or equipment. DLs are subject to expiry dates which will be specified within the licence. DLs are subject to a public notification and consultation process set out in the EP Act and the Charter of Consultation.

1. In Part 6.1, 'Permission Conditions':[94]

As the permissions scheme supports the operation of the GED, conditions of a permission will complement a permission holder's compliance with the GED and reinforce the state of knowledge around the management of risks of harm.

Conditions in a permission will focus on the key risks of the permissioned activity and may not be exhaustive of all measures that the holder needs to take to discharge their GED. Therefore, a permission may include conditions that address only a subset of the risks that a duty holder may need to manage under the GED, with guidance and good industry practices providing state of knowledge about how other risks should be managed.

Where compliance with a permission condition addresses a particular risk of harm, and the holder of the permission complies with that condition, they will be taken to have performed a duty or satisfied an obligation.

In some circumstances, including where the combined impact of multiple activities results in risks of a cumulative nature, EPA may raise the performance standards beyond the level of the GED by specifically requiring the use of best available techniques and technology.

Permissions may also include conditions that require administrative and management actions, such as:

• ➢ consultation with the local community
• ➢ reporting back to EPA on compliance with the conditions of a permission, or provide data on emissions to EPA and the community
• ➢ pollution incident planning
• ➢ provision of financial assurance in favour of the cost of remediating a site.

1. In Part 7, 'Accountability in Decision-Making':[95]

Consistent with the principle of accountability in the EP Act, EPA believes that the public should have access to reliable information that supports a good understanding of the condition of the environment, risks of harms, and of how decisions are made in relation to environmental protection. This principle includes providing opportunities to be engaged in decision-making and have their interests taken into consideration.

1. This individualised approach may be contrasted with the approach taken to permissions for lower risk activities. For example, the Permissions Policy states that Permits 'are subject to a standardised assessment process' and, if granted, a permit will contain 'conditions that are largely standard across an industry sector.'[96]

EPA Publication 2011 'Development licence application guidance'

1. The EPA Publication 2011, 'Development licence application guidance' provides guidance concerning the use of online application tool.

Anderson v PWM (Lyndhurst) Pty Ltd & Anor ('Anderson')[97]

1. The parties were given leave to file any submissions in response to the decision of the Supreme Court of Victoria in Anderson in the event it had any relevance to the matters in this proceeding.
2. As expressed in the summary submissions made below, Anderson is illustrative, but it is relevant that the Supreme Court has found that the GED is 'risk-based' and not 'outcome-based'. This means it is an assessment of risks of harm that is required, not an assessment of actual harm.

1. PHI submits that as an important matter of context, in Anderson, the Supreme Court of Victoria was considering whether the defendant had breached the GED, for the purposes of an application made pursuant to section 309 of the EP Act 2017. In the present case, the Tribunal must consider whether the EPA was able to consider the measures PHI proposed to take in order to comply with the GED, within the terms of section 69(3) of the EP Act.
2. PHI said that the Supreme Court of Victoria made the following pertinent remarks in relation to the GED:
   1. first, the GED is risk-based, and not outcome based, thus, what is required in assessing the GED is an assessment of risks (which PHI says it has undertaken in its licence application, and which the EPA has undertaken in its Assessment Report);
   2. further, the obligation to take 'all practice measures' (which in Anderson was the wording of the licence condition, that is, to take 'all practice measures' to prevent emissions of landfill gas from exceeding certain prescribed levels at the landfill boundary) is more onerous than an obligation to take a 'reasonably practicable measure';
   3. the Supreme Court referred favourably to the comments of Justice Garde in Warburton Environment Inc v VicForests (No 5)[98] that 'reasonable' is a relative term, which requires that any measures 'be proportioned to the circumstances of the case considered as a 'whole' and 'in this sense, the word, "reasonably" serves to limit or qualify the scope of what would otherwise be an absolute obligation or duty to take particular measures'. Further, that 'whether a measure is reasonably practicable is an objective assessment, which is concerned with the state of knowledge generally possessed by persons engaged in the relevant field of activity, rather than the actual knowledge of a specific person in particular circumstances.'
   4. Second, PHI said that the case demonstrates that each case concerning the GED will turn very much on its own facts and circumstances and therefore:
      1. in Anderson, the practicable / reasonably practicable measures that were not being taken by the operator, that have been required by the Supreme Court to be taken, were founded in the context of the landfill - related policy documents, the landfill's gas extraction system, the migration of landfill gas that was occurring, and the expert evidence called by the parties;
      2. in the present case, an assessment by the Tribunal of whether the EPA was able to lawfully consider the measures the applicant proposes to take in order to comply with the GED will need to be informed by things such as the nature of WtE facilities, their particular risks, the 'state of knowledge' that exists for the WtE facilities, and the technologies and techniques that are available to eliminate or reduce risks from WtE facilities;
      3. a key question in this case is whether the EPA had sufficient information before it about those things, in order for it to be able to judge PHI's proposed risk reduction measures? PHI submits the answer to that question is 'yes', particularly having regard to what is known about the current BATT and state of knowledge for WtE facilities, which are being employed in this case;
   5. third, PHI said that the principle that a licence should be construed not as a document drafted with legal expertise, but rather to achieve practical results, is generally applicable; and
   6. fourth, PHI said the case is a demonstration of the successful employment of one of the remedies available to 'third parties' if they consider there is a breach of the GED occurring, during the undertaking of a relevant activity.

1. Bisinella made oral submissions with respect to Anderson at the hearing. It submits that Anderson was a case about a prosecution under section 25 of the EP Act 2017 for a breach of the GED. That being so, it is not like this case because what was fundamentally of concern in that case, was the state of affairs and state of knowledge of the operator regarding the risk of harm to the environment and the factors set out in section 6(2) of the EP Act 2017 are the evaluative matters. Specifically, Anderson was concerning s 6(2)(c) of the EP Act 2017, and that is not this case.
2. So, Bisinella submits that Anderson is a case that is illustrative of how the GED arises in range of circumstances. In that case, where it is that an operator breaches the GED, it is important to determine whether the GED is breached to arrest escape of landfill gas.
3. Bisinella said that it agreed with the submissions made by PHI as to the relevance of Anderson in this proceeding, noting the Supreme Court said that the duty created by GED is risk based and not outcome based. The duty is breached where a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste fails to eliminate those risks so far as reasonably practicable.
4. Bisinella said that in a context like this, the natural extrapolation of these comments means that simply assessing the risk to be 'low' and proceeding to do the approvals later, is absolutely wrong. Where the obligation of the duty is to minimise risk even if it is 'low', and to eliminate it if it is 'reasonably practicable' - that is, what is meant by 'risk based' and not 'outcomes based'. Bisinella said that the GED is not looking for acceptably low impacts when considering the wording in:
   1. section 5(1) and the definition of 'material harm'; and
   2. the prescribed matters in section 6(2) - which must be taken into account for the purpose of determining what is 'reasonably practicable' in relation to the minimisation of risks of harm to human health and the environment.
5. Bisinella said that specifically at paragraph [297] the Supreme Court said that an 'activity' 'may give rise to' risks of harm to human health or the environment if the risk is a 'real possibility' or 'is on the cards'.
6. It was also said that the phrase 'might give rise to a claim' in section 40(3) of the Insurance Contracts Act 1984 (Cth) was described by Meagher JA (Bathhurst CJ agreeing) in DIF 111 - Global Co-Investment Fund LP v DIF Capital Partners Ltd[99] as creating 'a deliberating undemanding test'.
7. The Supreme Court went on to say that in order for the GED to apply it is not necessary that the activity may give rise to action harm to human health or the environment. Rather, the GED applies where an activity may give rise to risks of harm to human health or the environment of whatever degree or duration from pollution or waste. The duty created by section 25(1) is risk-based, not outcome-based.
8. Bisinella submits that this passage confirms its construction of the GED which is that GED applies to the risk. No one is saying here that there are no risks. PHI and EPA are saying the risk is 'low' and it can be kept low within parameters set by Europe. But Bisinella submits the duty in Victoria is to minimise the risk of harm and as the Supreme Court said in Anderson, it is not necessary that the activity may give rise to actual harm, it is the risk of harm alone that enlivens the GED.

1. I need not make any findings with respect to Anderson given it relates to a proceeding about an alleged breach of the GED and not about whether a jurisdictional error has affected a decision.

1. Bisinella succinctly summarised the principles of statutory interpretation which are generally agreed between the parties[100] [footnotes excluded]:
   1. The questions raised in this proceeding are predominantly, if not exclusively, questions of statutory interpretation.
   2. The principles of statutory construction are well-established. A convenient and recent summary of the relevant principles is found in the decision of Taungurung Land and Water Council v Goulburn Murray Water Corporation, where the Tribunal observed:

The Court of Appeal in Mason & Ors v Head, Transport for Victoria [2021] VSCA 19 summarised the relevant principles of statutory construction through the leading cases at [24] and observed that:

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (citations omitted), Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (citations omitted), the High Court (Kiefel CJ, Nettle and Gordon JJ) again emphasized the importance of text, context and purpose:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ also gave guidance with respect to the proper construction of the statutory text, explaining that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute and emphasising that the meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. Their Honours continued (381-2 [69]) (citations omitted):

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.

Section 35 of the Interpretation of Legislation Act 1984 (Vic) further expressly provides that in the interpretation of the provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.

1. The purpose of the Act, its structure and the context provided by the Act as a whole are central to the task.
2. Before I turn to consider the proper construction of the EP Act 2017 having regard to these principles, it is convenient to set out the principles regarding jurisdictional error and materiality which have very recently and helpfully been considered by the High Court of Australia.
3. The principles and practical guidance of the High Court of Australia are applied in my consideration of the issues which arise in this proceeding.

Principles - jurisdictional error and materiality

1. The plurality of the High Court of Australia recently set out the principles concerning 'jurisdictional error' and provided practical guidance in applying those principles in the joint judgement of Gageler CJ, Gordon, Edelman, Stewart, Gleeson and Jabot JJ in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) as follows:

[1] This appeal concerns jurisdictional error and the requirement of materiality.

Jurisdictional error and materiality

[2] Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is "in law ... no decision at all" and is in that sense "void".

[3] Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

[4] A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision-making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision-making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force).

[5] Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn -

"[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute".

[6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance.

[8] The reasons of the primary judge and the Full Court in the present case, as well as other trial and intermediate appellate decisions, suggest uncertainty or confusion about the meaning and effect of some of the language used by the Court in identifying the principles to be applied in assessing materiality. It would be unsatisfactory if that uncertainty or confusion persisted. It is desirable to give practical guidance in terms with which all the Court agree. Necessarily, differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of the guidance that is now set out.

Two questions

[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.

[10] The inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.

[11] What must be proved to show what decision was made and how it was made will depend upon the nature of the error. In a common case - of which the present is an example - where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, the applicant's onus of proving the relevant facts is discharged by nothing more than the tender of the decision-maker's statement of reasons.

[12] Where the jurisdictional error alleged is one concerned with the process of the decision making, such as a denial of procedural fairness, what must be proved by the applicant will depend upon the precise error alleged to have occurred in the decision-making process, having regard to any relevant statutory provisions within the applicable legislative framework. Examples of the types of evidence that have been sufficient for establishing the relevant facts in such cases include the appellate record, and evidence of the content of a document or information that was required to be provided as part of the decision-making process.

[13] The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.

[14] The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

[15] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

[16] In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

[Tribunal emphasis] [Footnotes excluded]

The application of the principles in LPDT in this proceeding

1. It is appropriate to follow the principles relating to jurisdictional error and materiality set out by the High Court in LPDT to the matters before me in this proceeding. Whilst LPDT was a case relating to immigration matters, the principles and practice guidance of the High Court of Australia is of course, at a minimum, highly persuasive given that jurisdictional error is pleaded here.
2. The plurality of the High Court also said that given there appears to be uncertainty or confusion about the meaning and effect of some of the language used in the Court in identifying the principles to be applied in assessing materiality that:

...

It would be unsatisfactory if that uncertainty or confusion persisted. It is desirable to give practical guidance in terms with which all the Court agree. Necessarily, differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of the guidance that is now set out.

1. Whilst those comments were directed to other jurisdictions, the principles regarding jurisdictional error and materiality are equally applicable here. To the extent it needs to be said, I accept and agree with the principles and practical guidance provided by the High Court of Australia in LPDT should be applied in this proceeding. Further, no party indicated that I should not apply the principles in LPDT.

Starting point - ascertain nature of error alleged

1. Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made.
2. There are no bright lines to be drawn and the nature of the error has to be worked out in each case concerning a specific decision under a particular statute.
3. The practicable guidance provided by the plurality of the High Court in LPDT means that in applying those principles, the starting point is:
   1. to identify the nature of the error alleged; and
   2. then to assess whether nature of the alleged error is one which incorporates a requirement of materiality.
4. That is, it must first be discerned whether the nature of the alleged error is one that is always jurisdictional either inherently, or irrespective of any effect that the alleged error might or might not have had on the decision made.
5. In any other case, the alleged error is one which incorporates the extra layer of a requirement of materiality.

1. If, having ascertained the nature of the error alleged incorporates a requirement of materiality, the next considerations must be informed by the answers to two questions as directed by the High Court in LPDT above:
   1. did an error occur? and
   2. was that error material?
2. The High Court said that the inquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. In this case, the EPA's Assessment Report is central.
3. Those are facts in respect of which the applicant bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious. What must be proved to show what decision was made and how it was made, will depend upon the nature of the error.
4. Here, the errors alleged are breach of a condition governing the reasoning undertaken by the decision maker being EPA. Therefore, Bisinella's onus of proving the relevant facts is discharged by nothing more than the tender of the reasons set out in the EPA's Assessment Report. That is, Bisinella must satisfy this Tribunal, on the balance of probabilities, that the alleged errors in fact occurred.
5. If it is found that the alleged errors in fact occurred, then, the second question requires consideration about whether the errors are, or are not, material. The High Court in LPDT said that this is determined by inferences drawn from the evidence adduced on the application.
6. The question here is whether the decision that was in fact made could, not would, 'realistically' have been different had there been no error.
7. The High Court said in LPDT that the word 'realistically' is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is 'fanciful' or 'improbable'.
8. Consistent with the practical guidance provided in LPDT, whilst Bisinella must satisfy this Tribunal that the threshold of materiality is met in order to establish that any errors found are jurisdictional, meeting that threshold is not demanding or onerous.
9. Thus, if it is held that any errors made were material, then according to the principles in LPDT, EPA's decision of 6 December 2023 is affected by jurisdictional error, meaning the decision was made lacking legal force.
10. The consequence of the EPA's decision of 6 December 2023 being found to be affected by jurisdictional error is that whilst it would be a decision in fact, is no decision at all in law, and in that sense is 'void'.

Summary - the test to be applied when jurisdictional error is pleaded

1. Applying the principles set out by the High Court in LPDT to the facts in this proceeding, the questions to be considered for each of the grounds relied upon by Bisinella are:

1. What is the nature of the alleged error under the relevant ground? 2. Is the alleged error inherently a jurisdictional error, or does the alleged error incorporate a requirement of materiality? 1. Is the alleged error jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact? (e.g. has apprehended or actual bias occurred); or 2. Is the potential for an effect on the decision inherent in the nature of the alleged error (e.g. unreasonableness in the final result)?

1. Where the alleged error incorporates a requirement of materiality: 1. Did an error occur? 1. Ascertain the limits of the statutory conferral of decision-making authority. 2. Was it a material error? 1. Assess the possibility of whether the decision made in fact could (not would) 'realistically' have been different had there been no error. 'Realistic' is used to distinguish the assessment of the possibility of an outcome that is 'fanciful' or 'improbable'.

1. Where a material error is found, should declaratory relief be granted?

Nature of the errors alleged by Bisinella and materiality

1. Whilst all parties were provided an opportunity to make submissions at the hearing, I have only recorded Bisinella's submissions below.
2. Bisinella contended in oral submissions that materiality is a necessary ingredient of a jurisdictional error. All jurisdictional errors were said to be necessarily 'material'.
3. However, Bisinella said that to the extent the other parties press the matter of materiality, Bisinella's primary argument is that had the error(s) not occurred, the decision could have resulted in a refusal of the Application. Alternatively, had the error(s) not occurred, a development licence with different conditions could have been granted. In either case, Bisinella says that a _differen_t outcome could have ensued.
4. Thus, if I find there has been an error made by the EPA, the required level of materiality is easily reached. The error(s) is then properly characterised as a jurisdictional error. A jurisdictional error is a decision in fact, but no decision is made in law, and, in that sense, is void.
5. Bisinella also made it clear in reply submissions that, even though it could have relied on the ground of exceeding the bounds of reasonableness, its grounds are not framed this way. Bisinella said that it was not relying on an argument that the nature of the error arose because EPA acted unreasonably such that the error was jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact.

1. It was not clear whether Bisinella insisted that each of the four grounds alleging error relied upon by Bisinella were inherently jurisdictional errors or not. Bisinella's submissions were made in the alternative on the basis 'if materiality is pressed'. The main discussion about materiality and the higher court authorities unfortunately took place in closing submissions on the last day of the hearing. In hindsight, it would have been far more productive and of assistance if these submissions were made at the outset.
2. I have proceeded on the basis that the nature of the errors alleged by Bisinella, in its grounds that the EPA's decision made on 6 December 2023 necessarily incorporate a requirement of materiality.
3. This is because the errors alleged by Bisinella are not examples of apprehended or actual bias or unreasonableness which the High Court expressly said in LPDT are jurisdictional errors as they are inherent in their nature or regardless of any effect the error has on the outcome of the decision in dispute. Here, the alleged errors are more likely to fall into the category of errors, in the words of the High Court in LPDT, constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute.
4. This means that in order to satisfy me that any error found is a jurisdictional error, Bisinella must satisfy the additional hurdle (albeit a low bar) that there is a 'realistic' possibility that the EPA's decision (that is, the outcome of what was decided being a decision to grant the development licence) could have been different if the error had not occurred.
5. I accept Bisinella's submission that a different decision could include not only a refusal of the Application, but also the granting of a development licence subject to different conditions.

Were any of the alleged errors advanced by Bisinella material to the EPA's decision?

1. Given my findings that no errors in fact occurred, nothing turns on this in the sense that, the question of materiality does not strictly arise here.

WAS THERE A CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION AND FAILURE TO CONSIDER MANDATORY RELEVANT CONSIDERATIONS?**

1. The parties submit that the first and second grounds raise the following issues:

1. Having regard to the proper construction of s 69 of the EP Act, did the EPA discharge its statutory function in determining to grant the Development Licence?
2. In determining this question, the Tribunal should consider whether:
   1. in taking into account the matters specified in s 69, the approach taken by the EPA to the following documents issued by the European Union - IED 2010/75/EU, BREF 2019, and BATC (EU, 2019a) - was lawful; and
   2. the effect of the EPA's decision, and more specifically the conditions contained within the Development Licence, was to unlawfully defer consideration of the matters specified in s 69?

1. Bisinella's main submissions with respect to its first and second grounds are:
   1. there was not a sufficient level of specificity to enable the EPA to assess the approval in accordance with its statutory obligations because Appendix M proves the Application is based on a concept design;
   2. what was in fact approved is a set of 'performance standards' in accordance with EU laws. Those EU laws will set upper limits rather than respond to the requirements of the EP Act 2017 to consider the obligation to comply with the GED;
   3. it could not be possible to comply with the GED because the concept design is necessarily different to the actual design and the 'vice' is, it is the actual design that is required to be assessed by the EPA under the statutory regime and required to be subject to third party scrutiny;
   4. as a consequence, the combination of:
      1. the manner in which the Application was made;
      2. how it as assessed by the EPA and by reference to the EU standards which do not equate to the obligation of compliance with the GED;
      3. the deferral of risk assessment in conditions which are only for consideration between the EPA and the proponent,

all point to a situation where the EPA purported to make a 'decision' in granting the Development Licence. However, in doing so, it acted unlawfully because it did not comply with the statutory scheme and thus there is no valid 'decision' made under section 69 of the EP Act 2017;

1. this must be so because the statutory scheme contemplates third party rights and in only approving performance standards as opposed to approval of the actual design, means that third parties like Bisinella are excluded from the process and this is not what is contemplated by the statutory scheme and thus the EPA acted beyond power;
2. there is debate whether the location of plant and equipment of a prescribed activity is an activity of itself. In which case, the lack of precision in the concept plan, means that the EPA was not able to make the assessment and the 'decision' in the circumstances; and
3. PHI's and EPA's arguments are premised on establishing that the EPA's decision was unreasonable in a legal sense, in the Wednesbury[101] sense. However, Bisinella's attack is not based on Wednesbury's unreasonableness, or on lack of evidence or on irrationality. Rather_,_ the premise of Bisinella's case is that the EPA's approach is based on a misdirection as to the operation of the statute and that is manifest in the Assessment Report;
4. the EPA misunderstood its statutory task and in doing so, failed to exercise its power by deferring the assessment of matters required by the statute to occur at some point after the decision, and that deferral was impermissible. And whilst the EP Act 2017 confers substantial discretion on the EPA, discretion must be exercised in accordance with the statutory powers and that any broad discretion that exists is not a cure to any of the defects alleged to have occurred here.

1. PHI and EPA relied on the following main submissions that:
   1. the EP Act 2017 confers broad discretions on the EPA as to:
      1. the form and content of an application (section 50 of the EP Act 2017);
      2. the discretion it has in requesting Requests for Further Information ('RFIs') (section 51A of the EP Act 2017);
      3. the imposition of conditions (section 54 of the EP Act 2017); and
      4. the manner of the assessment under section 69(3) of the EP Act 2017 because it does not prescribe the weight to be given to different things, it leaves the discretion to be exercised broadly;
   2. the EPA is an expert body exercising its powers and it is within the exercise of discretion of the EPA to treat the application as sufficiently complete to proceed to assessment;
   3. VCAT is not exercising review power here, rather it is effectively exercising judicial review and the Tribunal should be cautious not to try and make the decision again.
   4. the key issue is whether it was legally open to the EPA on the basis that it had sufficient information to assess risk under section 69 of the EP Act 2017;
   5. a declaration proceeding has high threshold for Bisinella to say the exercise of discretion has miscarried; and
   6. the decision was made over a process of three years and there are real consequences.

1. Bisinella has the burden of proving, on the balance of probabilities, that EPA erred in granting the development licence and that the error in the decision making process is material such that a jurisdictional error occurred.
2. The High Court in LPDT tells us that the proof of the facts of there being a jurisdictional error ought not be difficult or contentious.
3. Having considered the submissions, I am not persuaded Bisinella has satisfied the burden of proof for establishing that EPA did not discharge its statutory function in determining to grant the Development Licence on 6 December 2023.
4. A forensic review of the Assessment Report indicates that there is more than one explanation about how EPA arrived at its decision to grant the development licence. The task of establishing error as alleged by Bisinella is difficult and contentious. It is a task that has not been proven in fact or based in evidence relied upon by Bisinella and I prefer the submissions made by PHI and the EPA.
5. Properly understood, it appears to me that Bisinella has attempted to 'dress up' arguments on the merits, which are appropriate for submissions at the merits hearing rather than in this proceeding which is about whether to make the declaration sought.

Principles to be applied in consider whether an error is established

1. The principles to be applied in determining whether there has been an error according to the High Court in LDPT are:
   1. it is a 'backwards looking' task in determining whether there has been a jurisdictional error of the type contended by Bisinella;
   2. Bisinella bears the onus of proof on the balance of probabilities that a jurisdictional error has in fact occurred;
   3. proof of the facts of there being a jurisdictional error ought be neither difficult or contentious;
   4. what must be proved to show what decision was made and how it was made, depends on the nature of the alleged error contended;
   5. here, the errors alleged are breach of a condition governing the reasoning undertaken by the decision maker, being EPA;
   6. Bisinella's onus of proving the relevant facts is discharged by nothing more than the tender of the reasons set out in the EPA's Assessment Report; and
   7. Bisinella must satisfy this Tribunal, on the balance of probabilities, that the alleged errors in fact occurred.

1. In unpacking Bisinella's submissions which became clearer in closing submissions, Bisinella contends EPA did not or could not complete the statutory task required under section 69(3), because:

1. the Application was made in the form of a concept plan; 2. section 69(3)(a) requires an assessment of the measures taken or proposed to be taken to comply with the GED; 3. BATT under the EU Framework was appropriately used as a tool to satisfy compliance with section 69(3)(d); 4. BATT under the EU Framework was also used as a proxy for compliance with the GED under section 69(3)(a) of the EP Act 2017; 5. BATT under the EU Framework only sets emissions limits and ranges; 6. compliance with the GED is a different test to meeting BATT under the EU Framework; 7. GED requires the elimination of risks so far as reasonably practicable, and if that is not possible, to reduce those risks so far as reasonably practicable, including within or outside the BATT limits / ranges; 8. in using BATT under the EU Framework as a measure to comply with the GED meant:

1. EPA did not complete the required statutory task under section 69(3)(a) because EPA did not assess whether it was possible to eliminate risks of harm so far as reasonably practicable, or where that is not possible, to reduce those risk so far as reasonably practicable;

1. in turn, by not complying with section 69(3)(a), EPA did not, and could not, properly assess the impacts of the activity on human health and the environment section 69(3)(b);

1. the risk assessment under section 69(3)(a) that must be done by EPA is at the time the decision is made;

1. the required risk based assessment under section 69(3)(a) could not be undertaken because the actual design (or at least a concept plan with greater detail than the Application) is required and that was not the case here; 2. this particular concept plan lacked sufficient information and detail to enable EPA to undertake its statutory task; 3. EPA deferred consideration of significant matters to the development licence conditions; 4. by imposing future requirements in conditions, EPA deferred the risk based assessment to the future, which was not appropriate; 5. at best, EPA approved a set of performance standards; 6. the proposal is one which does not eliminate or reduce risks of harm so far as reasonably practicable; 7. a proposal which does not eliminate or reduce risks of harm so far as reasonably practicable is one which poses an unacceptable risk of harm to human health of the environment; 8. EPA was required to refuse the application because it poses an unacceptable risk to harm to human health or the environment under section 69(4)(a) of the EP Act 2017; 9. EPA misunderstood its statutory task and meant EPA did not discharge its statutory function at the time it made its decision to grant the development licence; 10. there was constructive failure to exercise jurisdiction; 11. alternatively, EPA failed to taken into account mandatory considerations and should have refused to grant the development licence application; 12. the decision to grant the development licence is affected by jurisdictional error either of itself or, alternatively because it was a material error in that a different decision would have been made had the GED been complied with and / or the mandatory relevant considerations taken into account.

1. The obligation on the EPA, an expert decision making body, under section 69(3)(a) of the EP Act 2017 is to 'take into account' the matters prescribed in that provision. It does not specify the weight to be afforded to any relevant considerations in the exercise of discretion, which must be exercised within the realm of legal reasonableness.
2. EPA, as an expert decision-making body, is well placed to make assessments of this type. It is not the role of the Tribunal in this proceeding, to question the merits of the EPA's assessments in these respects.

Why EPA accepted the application in the form of a concept plan

1. The Assessment Report records EPA's reasons for accepting the application in the form that it did at paragraphs [101] - [111] :

Assessing concept design and performance-based applications

[101] EPA assesses development licence applications on a case-by-case basis. This takes into consideration the specific circumstances of the application, proposed activity, the activity site, and local community.

[102] In this case, the application was submitted based on a concept design. The concept design was developed with suitable technical support from an engineering consultancy firm experienced in the WtE industry, as well as a WtE technology vendor.

[103] The concept design does not present the final detailed designs of the facility. This will be finalised at a later stage subject to EPA oversight. However, it has clearly established specific environmental performance standards for the facility that the future design and constructed facility must adhere to.

[104] This includes such standards as air emission levels of pollutants from the facility's stack, noise and odour emissions, and hazardous waste management. The application demonstrates the reliability of the concept's design performance standards through reference facilities, other studies and literature, and internationally recognised standards such as the IED framework.

[105] This approach is only suitable for robust and well proven technology types such as moving grate incineration WtE facilities. This approach is commonly used when seeking environmental approvals for the WtE industry.

[106] EPA's assessment of the application focuses on whether the concept design and environmental performance standards are consistent with EPA's assessment criteria including the general environmental duty (GED) and the elimination or reduction of risks of harm to human health and environment so far as reasonably practicable, and the adoption of BATT.

[107] EPA also assesses the application to determine if the proposed technology type is robust and proven and whether the concept design and environmental performance standards are reliably and technically viable.

[108] As explained in Section 3.6, if a development licence is granted the company will proceed to an open EPC tender process. The development licence and its conditions form part of these commercial arrangements.

[109] EPA incorporates a comprehensive set of conditions if EPA is satisfied that the application demonstrates compliance with EPA's assessment criteria. This ensures that these are firmly established for the applicant's EPC tender process. For this reason, the development licence includes more conditions than would otherwise be considered necessary.

[110] EPA also imposes additional requirements on concept design and performance-based applications which are not usually required. For example, EPA requires involvement of an EPA-appointed auditor (or suitably qualified person approved in writing) at the detailed design, construction and commissioning phase of the project.

[111] The following assessment should be read with this context in mind.

Form of Application as a 'concept plan' acceptable

1. Despite its main written submissions, Bisinella conceded in oral submissions that an application made under section 69 of the EP Act 2017 could be made in the form of a concept plan. The emphasis it wished to place was on whether this concept plan was appropriate given EPA's statutory obligations in assessing compliance with the GED.
2. The text in the EP Act 2017 confers a broad power on the EPA to accept an application such as the form of Application, the subject of this proceeding.
3. There is nothing in the words contained in the EP Act 2017 which requires the 'actual proposal' to be the subject of an application for a development licence. The terms 'concept design' and 'detailed design' are not defined in the EP Act 2017 or in the EP Regulations. A 'concept design' is not a fixed term of art. What constitutes a 'concept design' will depend on the facts and circumstances of any given case.
4. An application is in the form of a concept plan per se can be lawful because:[102]
   1. the text, content and purpose of the relevant provisions of Part 4 of the EP Act 2017 allow an application to lawfully be made, and to be assessed, on this basis;
   2. section 44 of the EP Act 2017 makes it clear that the permission required concerns a prescribed development activity; and
   3. section 50 of the EP Act 2017 governs the form and content of applications and it grants power to the EPA to approve the 'form and manner' in which an application need be made, and requires that an application be made in that form and manner; requires the prescribed fee be paid; requires the application specify the type of permission that is sought; requires the application to 'specify the activity in relation to which the permission is sought; and requires that the application include any prescribed information.
5. In the present case, the design that informed the assessment by EPA is properly characterised as being 'conceptual' because it is anticipated to be the subject of ongoing resolution and refinement throughout the detailed design and procurement phases of the proposal that will follow approval, but that does not mean that the design is hypothetical, abstract, notional, or generic.
6. Given the statute does not prevent an application of this type being made on the basis of a 'concept plan', it was open to the EPA to accept and assess the Application framed, noting that I agree with PHI and the EPA that the Application comprised more than just Appendix M.
7. Taken as whole, I find that the Application provided a detailed description of the proposed activity. The fact certain elements of the 'concept design' may be refined and revised over time does not detract from the fact that the degree of specificity contained within the Application allowed the EPA to conduct a rigorous and thorough assessment of the proposal pursuant to the terms of the EP Act 2017.
8. Notwithstanding the potential for the concept design to be further resolved and refined during detailed design and procurement, I find that there was sufficient information in the Application material which allowed the EPA to undertake an evidence and risk-based assessment of the proposal pursuant to the terms of the EP Act 2017. Further, the terms of the EPA's approval, ensured that the 'low level of impact' as assessed would be achieved by the proposal.

1. Bisinella's case under grounds 1 and 2 is predicated on the proposition that EPA misunderstood the statutory task or failed to take into account mandatory relevant considerations. Bisinella alleges material errors were made which affect the validity of the decision.
2. Set out below is consideration of:
   1. how EPA structured the Assessment Report;
   2. how EPA addressed its statutory obligations with respect to BATT and the GED;
   3. how EPA assessed risk with respect to certain matters identified of concern e.g. air emission and noise emissions.
3. When analysing how the EPA approached the statutory task with reference to the text in the Assessment Report, I am not persuaded, on the balance of probabilities, that the errors Bisinella alleges occurred.
4. This is because when read as a whole, I find it is difficult or contentious to discern any proof of facts that EPA did not understand its statutory task, or that it failed to take into account mandatory relevant considerations.
5. Whilst Bisinella contends that EPA conflated BATT under the EU Framework with the requirements of the GED, the face of the record shows there is an alternative explanation about what EPA in fact did. There is no evidence to prove EPA did (that is, conflate BATT under the EU framework with its obligations under the GED) what Bisinella contends occurred.
6. And so, whilst I appreciate that theoretically a decision maker might fall into error if it did not properly apply the statutory scheme, I am not satisfied that this is what occurred here. In this case, I have found that Bisinella has not discharged the onus of proof.
7. However, I accept the proposition put by Bisinella in principle that BATT, in any given case, will not necessarily discharge the requirements of the GED. Care must be taken to ensure there is a proper understanding of the decision maker's obligation with respect to the GED being the cornerstone of the EP Act 2017. Each case will turn on its own facts and circumstances depending on the nature of the application and the BATT relied upon in any given case. Given the broad range of applications in which different BATTs may be relied upon, it is impossible to divine a rigid or prescribed set of classifications of BATTs which might be said also to satisfy the GED. Rather, compliance with the GED and BATT stand independently as separate obligations in sections 69(3)(a) and 69(3)(d) of the EP Act 2017.
8. At its highest, it might not be surprising that an assessment of a particular BATT relied upon for an application bears some relationship to, or works hand in glove with, the risk-based assessment required to be undertaken for the GED. For example, with respect to air emissions at least BATT is intended to be the lowest impact on the environment without compromising the economic health of (industrial) enterprises concerned.[103] However, each case will turn on its own facts and circumstances.

1. The Assessment Report uses the following structure to present the EPA's assessment:[104]

Abbreviations

Executive summary

Background: waste to energy

Application proposal

Development licence application details

EPA assessment framework

Referral agency consultation

Community engagement

EPA assessment

EPA decision

Next steps

Other approvals required

Independent verification of detailed design and construction

Development licence milestones

1 Background

1.1 Applicant information

1.2 Facility overview

1.3 Assessment process timeline

1.4 What is waste to energy?

1.4.1 Waste to energy in Victoria

2 Activity site

2.1 Activity site description

2.2 Surrounding environment

2.3 Land use zones and development overlays

2.3.1 Statuary planning context

2.3.2 Strategic planning context

3 Proposal overview

3.1 Waste to energy facility

3.2 Conceptual design and configuration

3.2.1 Activity site layout

3.2.2 Proposed waste or 'waste feedstock'

3.2.3 Waste tipping hall

3.2.4 Waste bunker and cranes

3.2.5 Waste feeding hopper

3.2.6 Moving combustion grate

3.2.7 Furnace and heat recovery boiler

3.2.8 Steam turbine and generator

3.2.9 Flue gas emission and air pollution control system

3.2.10 Continuous emission monitoring system

3.2.11 Stack

3.2.12 Cooling water system

3.2.13 Wet bottom ash extraction system

3.2.14 Bottom ash treatment building

3.3 Construction

3.4 Commissioning

3.5 EPC tender process and concept design

3.6 Reference facilities

4 Consultation

4.1 Consultation carried out by applicant

4.2 Consultation carried out by EPA

5 Assessment framework

6 Assessment

Assessing concept design and performance-based applications

6.1 Measures to comply with the general environmental duty

6.1.1 Risk and hazard identification and management framework

Risk assessment

Conclusion

6.1.2 Construction activities

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 11: Environmental control measures and environmental performance standards - construction

Key considerations

Construction environment management plan

Conclusion

6.1.3 Greenhouse gas emissions

Identification of risk and degree of harm

Table 12: GHG inventory results (Scope 1-3 emissions)

Table 13: Operation non-energy relation emissions by source

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Table 14: Environmental control measures and environmental performance standards - GHG emissions

Cost of eliminating or reducing those risks

Key considerations

Resource recovery

Energy efficiency

Commissioning and proof of performance

Conclusion

6.1.4 Air

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 15: Environmental control measures and performance standards - air emissions

Key considerations

Incineration plant, furnace and heat recovery boiler

Emission characterisation

Flue gas cleaning system

Licence limits and emission monitoring

Table 16: Proposed licence limits and emission monitoring

Reference facilities

Other than normal operating conditions (OTNOCs)

Commissioning and proof of performance

Conclusion

6.1.5 Noise

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 17: Environmental control measures and performance standards - noise emissions

Key considerations

Site planning, plant layout and configuration\Emission characterisation

Plant and mechanical equipment

Onsite vehicle movement

Other than normal operating conditions

Commissioning and proof of performance

Conclusion

6.1.6 Water, wastewater and stormwater

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 18: Environmental control measures and performance standards - water, wastewater and stormwater

Key considerations

Water consumption

Wastewater management

Stormwater management

Conclusion

6.1.7 Land and groundwater

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 19: Environmental control measures and performance standards - land and groundwater

Key considerations

Chemical, fuels and dangerous goods storage

Construction, waste bunker and groundwater

Conclusion

6.1.8 Odour

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Cost of eliminating or reducing those risks

Table 20: Environmental control measures and performance standards - odour

Key considerations

Waste tipping hall and bunker

Other than normal operating conditions

Commissioning and proof of performance

Conclusion

6.1.9 Waste (incoming)

Identification of risk and degree of harm

Knowledge of risk and availability and suitability of controls to eliminate or reduce risks

Incoming waste management controls

Cost of eliminating or reducing those risks

Table 21: Environmental control measures and performance standards - waste (incoming)

Key considerations

Targeted waste feedstock - access and availability

Targeted waste - Victorian Waste to Energy Framework

Waste characterisation and auditing

Waste Acceptance Criteria and procedures

Pre-incineration waste storage and management

Waste treatment or incineration

Commissioning and proof of performance

Conclusion

6.1.10Waste (outgoing)

Outgoing waste management controls

Cost of eliminating or reducing those risks

Table 22: Environmental control measures and performance standards - waste (outgoing)

Waste characterisation and classification

Monitoring and classification

Storage, handling and management

Resource recovery and IBA treatment

Conclusion

6.2 Impact of the activity on human health and environment

6.2.1 Human health

Human health risks associated with waste to energy facilities - EPA Victoria (2018)

Human health risks associated with waste to energy facilities - Public Health England (2019)

Human health risks associated with waste to energy facilities - Public Health Scotland (2022)

Human Health Impact Assessment

Psychological health impacts

Conclusion

6.2.2 Climate change and greenhouse gas emissions

Operations - variation in feedstock

Operations - displaced gird electricity

Operations - avoided emissions from landfilling

Other avoided emissions not accounted

Avoided emissions over the lifespan of the facility

Conclusion

6.2.3 Air

Conclusion

6.2.4 Noise

Risk of low frequency sound

Risk from noise emissions on environment values

Conclusion

6.2.5 Odour

Conclusion

6.3 Principles of environment protection

6.3.1 Relevance of the principles to the approvals process

6.3.2 Principle of integration of environmental, social and economic considerations

6.3.3 Principle of proportionality

6.3.4 Principle of primacy of prevention

6.3.5 Principle of polluter pays

6.3.6 Principle of waste management hierarchy

6.3.7 Principle of evidence-based decision-making

6.3.8 Precautionary principle

6.3.9 Principle of equity

6.3.10 Principle of accountability

6.3.11Principle of conservation

Conclusion

6.4 Best available techniques and technologies

6.5 Whether the activity is otherwise consistent with the Act and Regulations

6.5.1 Section 52A Authority may refuse certain applications inconsistent with Victorian Recycling Infrastructure Plan

6.6 Comments or submissions from prescribed referral agency

6.6.1 Planning Authority - Minister for Planning

Conclusion

6.6.2 Barwon Region Water Corporation

Conclusion

6.6.3 City of Greater Geelong

6.6.4 WorkSafe Victoria

Conclusion

6.6.5 Recycling Victoria

6.6.6 Sustainability Victoria

6.7 Comments and submissions received from third parties

6.7.1 Submission period 24 March to 28 April 2021

6.7.2 Community conference 13 July 2021

6.7.3 Submission period 13 to 28 October 2021

6.7.4 Submission period 22 June to 13 July 2023

6.7.5 Consideration of key themes and issues in comments and submissions by third parties

Human health: Risks to human health from air emissions and residual wastes

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Human health: Risks to human health from emergency or other than normal operating conditions

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Separate or buffer distances to sensitive receptors (such as homes, schools): many submissions

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Public reporting of monitoring performance

Consultation

Controls and conditions

Contamination in incoming waste

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Resource recovery

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Level of detail and scope of assessments supporting the concept design

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Greenhouse gas emissions and climate change

Consultation

Applicant documentation

EPA assessment

Controls and conditions

Waste

Consultation

Applicant documentation

EPA assessment

Fit and proper person assessments

Consultation

Response

Environment effects statement

Consultation

Response

Principles of environment protection

Consultation

Response

Matters raised but not assessed by EPA

6.8 Any prescribed matters

6.8.1 Regulation 112 Generators or emitters of Class 3 substances

6.8.2 Regulations 167 and 168 Financial assurances

7 Other assessment considerations

7.1 Climate Change Act 2017

7.1.1 Potential impacts of climate change relevant to the decision or action

7.1.2 Potential contribution to the state's greenhouse gas emissions of the decision or action

7.1.3 Conclusion

7.2 Flora and Fauna Guarantee Act 1988

7.2.1 Flora and fauna assessment

7.2.2 Objectives of the FFG Act

Instruments of the FFG Act

7.2.3 Conclusion

7.3 Charter of Human Rights and Responsibilities Act 2006

7.3.1 Right to life

7.3.2 Right to privacy and reputation

7.3.3 Protection of families and children

7.3.4 Taking part in public life

7.3.5 Conclusion

7.4 Minamata Convention on Mercury

7.4.1 Conclusion

7.5 Stockholm Convention on Persistent Organic Pollutants

7.5.1 Conclusion

7.6 Prohibited and fit and proper person

7.6.1 Prohibited person

7.6.2 Fit and proper person

7.6.3 Conclusion

8 Decision

8.1.1 Other approvals required

8.1.2 Independent verification of detailed design and construction

8.1.3 Development licence milestones

9 Conditions

References

Appendix

Appendix A: List of application documents and information

Appendix B: Summary of submissions received between 24 March and 28 April 2021

Appendix C: Conference of Interested Persons Report

Appendix D: Summary of submissions received between 13 and 28 October 2021

Appendix E: Summary of submissions received between 20 June and 13 July 2023

Appendix F: BATT assessment

Appendix G: Referral agency responses

1. The above contents / index of the Assessment Report sets out the headings of the various chapters. Under the main headings, there are a number of sub-headings which comprise the 'full' index of the matters considered by EPA.
2. As can be seen, the face of the record shows with respect to the structure of the Assessment Report that:
   1. EPA documented the mandatory relevant considerations under sections 69(3) and (4), and related provisions;[105]
   2. the Assessment Report was structured according to headings reflecting the requirements of section 69(3) of the EP Act 2017 namely:
      1. the measures proposed to comply with the GED when engaging with the activity the subject of the application;[106]
      2. impact of the proposal on human health and the environment and any values of the environmental reference standards;[107]
      3. the principles of environment protection;[108]
      4. the best available techniques and technologies;[109]
      5. whether the activity is otherwise consistent with the EP Act and the regulations;[110]
      6. responses from any prescribed agency;[111]
      7. comments and submissions received from third parties;[112]
      8. any prescribed matters.[113]
3. The other required assessment considerations were considered in Chapter 7. Chapter 8 sets out the decision that was made and Chapter 9 sets out the conditions.[114]

1. It is convenient to set out how EPA addressed its obligation under section 69(3)(d) of the EP Act 2017. This is explained in paragraphs [611] - [615] of the Assessment Report as follows:

[611] Under section 69(3)(e) of the EP Act, EPA must take BATT into account. BATT can be defined as techniques and technologies with the lowest impact on the environment without compromising the economic health of the (industrial) enterprises concerned (EPA, 2022c) (EPA, 2021a).

[612] In considering BATT for the application, EPA has relied primarily on the EU framework under EU IED and the BREF and BATC 2019, as discussed in Section 3.2.

[613] The EU framework is informed by decades of regulatory and technical expertise overseeing the development and operation of WtE facilities throughout the EU. EPA considers this framework as the leading international standard for the industry, a position also recommended in NSW (EPA, 2107) (NSW Government, 2020). BAT under this framework is taken to be compatible with BATT under the EP framework (Article 3(10) of the EU IED).

[614] Under the EU framework, BATC 2019 provides the key elements of the BAT reference document. They are intended as a reference for setting permit or approval conditions for installations covered by Chapter II of EU IED. Existing EU facilities were given four years to comply with the BATC. The BATC offers a suitable BATT performance standard and benchmark for this application.

[615] EPA's assessment of the application against the EU framework is presented in Appendix F: BATT assessment. The standards specified in the BATC are considered critical performance benchmarks for the detailed design phase of the development either as proposed in the application or as prescribed by condition. As the BATC 2019 recommendations are intended as references for setting approval conditions, the assessment also includes an alignment of EPA conditions with the BATC.

1. Appendix F: BATT assessment of the Assessment Report uses the words 'so far as reasonably practicable' in reference to BAT 16, BAT 18, BAT 19, BAT 21, BAT 24, BAT 30, BAT 31, BAT 35, BAT 36 and BAT 37.[115]

'Eliminate risk' or 'reduce risks' 'so far as reasonably practicable'

1. The Assessment Report expressly summarises how EPA addressed the measures proposed to 'eliminate risk' or 'reduce risks' and 'so far as reasonably practicable' in its assessment of seven key issues and identified a series of conditions to further reduce risk of harm to human health and the environment.
2. The Executive Summary of the Assessment Report, under the 'EPA assessment' section provides the following:[116]

EPA's primary role is to protect human health and environment from waste and pollution. EPA's permissioning assessment framework requires risks of harm to human health to be eliminated. If that is not feasible, risks must be reduced so far as reasonably practicable. EPA must refuse to grant a development licence for any activity that poses an unacceptable risk of harm to human health and the environment.

Prospect Hill considered the potential impacts of its activities, carrying out impact assessments and proposing administrative and engineering controls designed to eliminate or reduce risks of harm. EPA reviewed the assessments submitted by Prospect Hill to ensure their conclusions were evidence based and used scientifically valid methodology. The EPA also reviewed the application's proposed controls against EPA guidelines, the internationally recognised best available technique (BAT) standards of the European Union (EU) and any other relevant information.

Table B summarises the assessment done for the seven key issues raised during consultation.

In assessing potential risks, EPA has identified a series of conditions which, when implemented, will further reduce risk of harm to human health and the environment (Table C).

1. Paragraphs [112]-[117] of the Assessment Report, under section '6.1 Measures to comply with the general environmental duty' states that:[117]

[112] Under section 69(3)(a), EPA must take into account any measures the applicant has taken or proposes to take to comply with the GED when engaging in the activity subject of the application. The GED is defined under section 25(1) of the EP Act:

S 25(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

[113] Section 25(4) and (5) also sets out the actions a person conducting such an activity must do, so far as reasonably practicable, to comply with the GED:

S 25(4) _Without limiting subsection (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable - _

S 25(4)(a) use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;

S 25(4)(b) use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;

S 25(4)(c) use and maintain adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised;

S 25(4)(d) ensure that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health and the environment from pollution and waste;

S 25(4)(e) provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the duty under subsection (1).

[114] Section 6 of the EP Act defines the concept of 'minimising risks of harm to human health and environment' along with a guiding framework for determining 'so far as reasonably practicable'. The GED requires persons carrying out such an activity to eliminate risks of harm to human health and the environment so far as reasonably practicable and, if it is not reasonably practicable, to reduce those risks so far as reasonably practicable.

[115] To determine what is reasonably practicable (EPA, 2020b) in relation to minimising risks of harm to human health and environment, the following must be considered:

• the likelihood of those risks eventuating,

• the degree of harm that would result if those risks eventuated,

• what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks,

• the availability and suitability of ways to eliminate or reduce those risks, and

• and the cost of eliminating or reducing those risks.

[116] EPA's assessment of the application against the GED framework looks at how the application has identified risks of the proposed activity and the measures identified to eliminate or reduce risks of harm to human health and environment so far as reasonably practicable (EPA, 2022a) (EPA, 2021a). It also considers to what extent the measures address or are consistent with the requirements outlined in S25(4)(a)-(e). In doing so, EPA's assessment follows the general advice or process steps in controlling hazards and risks as recommended by EPA (see Figure 5).

[117] BATT for WtE under the EU framework specifies both mechanical and administrative controls - and does so in a risk-based approach. In this regard, the BATT measures of the EU framework may also be considered generally consistent and complementary with the preventative approach of the GED. While the EU framework refers to BAT under its framework, this is compatible with BATT under the EP framework. These terms are used interchangeably throughout this report. For further details on these terms, see Section 6.4.

[Tribunal emphasis]

1. Precisely what EPA meant in paragraph [117] was of some debate at the hearing: '....the BATT measures of the EU framework may also be considered generally consistent and complementary with the preventative approach of the GED. While the EU framework refers to BAT under its framework, this is compatible with BATT under the EP Framework.'
2. The second sentence in paragraph [117] is not contested. It is common ground that BATT under the EU Framework is BAT for the purposes of the EP framework under section 69(3)(d) of the EP Act 2017.
3. However, what EPA meant when it stated that BATT measures of the EU Framework maybe considered 'generally consistent and complementary to the preventative approach of the GED' was a matter of conjecture at the hearing.
4. Bisinella contends that this effectively meant EPA treated BATT measures under the EU Framework as one and the same as the GED. PHI and EPA contest EPA assumed this interpretation and submit that EPA understood its statutory obligations and considered the requirements of both BATT and the GED. If anything, BATT was also used as a tool to assess the GED.
5. Bisinella also said in oral submissions that the two regimes were 'comparable' but not 'complementary'.
6. The Macquarie dictionary defines the following terms (emphasis added):

1. agreeing or accordant; compatible; not self-opposed or self-contradictory.

2. constantly adhering to the same principles, course, etc.

3. Obsolete holding firmly together; cohering.

4. Obsolete fixed; firm; solid.

'Compatible'

adjective

1. capable of existing together in harmony.

2. capable of orderly, efficient integration with other elements in a system.

3. (of a drug) capable of tolerating another drug without undesirable chemical reaction or effect; biocompatible.

4. (of a computer peripheral) able to work in conjunction with another specified device.

noun

5. an item of computer software or hardware able to work in conjunction with another specified device.

'Complementary'

adjective

1. forming a complement; completing.

2. complementing each other.

1. of or relating to complementary medicine: a complementary practice; complementary therapies.

'Complement'

noun

1. that which completes or makes perfect.

2. the quantity or amount that completes anything.

1. either of two parts or things needed to complete the whole.

1. the full number of officers and crew required to operate a ship.

1. the word or words required to complete the sense of a particular noun, verb or adjective, such as to leave in their intention to leave or They intended to leave.
2. the word or words required to complete the predicate for a particular sense of the verb, such as the old newspapers in He saw the old newspapers, and all over the floor in They lay all over the floor.
3. the adjectival or noun phrase required to complete the predicate of a copular verb, such as old in They seem old, and an old newspaper in It was an old newspaper.

1. Geometry the angular amount needed to bring a given angle to a right angle.
2. Logic, Mathematics all the members of any set, class or space of elements, that are not in a given subset.

1. the noun phrase (or adjective or adverb) within the predicate of a copular verb, which details the grammatical subject, as in They are amazing people, It looks good or The show is over.
2. the phrase or clause that acts as the grammatical object within the predicate, as in We expected an early harvest or We knew it would come early.
3. the noun or adjective which details the grammatical object in constructions, as in They made him president or They made him angry.
4. any obligatory postmodifier of a word, such as of animals in He is fond of animals.

1. Music the interval which added to a given interval completes an octave.
2. Immunology a thermolabile constituent of serum composed of more than twenty proteins which complement the action of the antibody.

verb

12. to complete; form a complement to.

13. to suit or go well with; enhance the good qualities of.

'Comparable'

adjective

1. capable of being compared.

2. worthy of comparison.

'Comparison'

noun

1. the act of comparing.

2. the state of being compared.

1. a likening; an illustration by similitude; a comparative estimate or statement.
2. Rhetoric the considering of two things with regard to some characteristic which is common to both, as the likening of a hero to a lion in courage.

5. the capability of being compared or likened.

6. Grammar

1. that function of an adverb or adjective used to indicate degrees of superiority or inferiority in quality, quantity, or intensity.

1. the degrees of a particular word, displayed in a fixed order, as mild, milder, mildest, less mild, least mild.

1. When I consider the express words used at paragraph [117], it is clear that the words 'consistent' and 'complementary' do not conflate two objects into the one. To the contrary, the definitions and the words indicate it is assumed there are two independent objects but they are 'capable of existing together in harmony' and 'either of two parts or things needed to complete the whole'.
2. Therefore, I prefer the interpretation provided in submissions by PHI and EPA that I should infer from those words stated at paragraph [117] in the Assessment Report that EPA separately assessed BATT and the GED, and to the extent there was any intersection, BATT measures under the EU Framework were used as a tool to assess the proposed measures to comply with the GED (rather than substituting BATT measures for the requirements of the GED, or conflating the two into one). This finding is also consistent with the analysis undertaken by EPA under the assessment framework in the Assessment Report discussed below.

1. Section 5 of the Assessment Report sets out the assessment framework applied by the EPA, as follows:

[96] EPA takes an evidence and risk-based approach to its regulatory function and decision-making under the permissioning framework. EPA has regard to principles and obligations of the EP Act and all relevant subordinate regulations and policy frameworks. This application has been assessed against:

• EP Act 2017,
• EP Regulations,
• Environmental Reference Standards (Victorian Government Gazette No S 245),
• relevant EPA guidelines.

[97] Under section 69(3) of the EP Act, EPA must consider the following when deciding whether to issue a development licence:

• measures taken or proposed to be taken, relevant to the activity, to comply with the general environmental duty,
• impact on human health and the environment, including relevant environmental reference standard,
• the principles of environmental protection,
• best available techniques or technologies (BATT),
• consistency with the EP Act and the EP Regulations,
• comments from referral authorities,
• comments and submissions received during advertising period, and
• any prescribed matters (these are matters prescribed by the EP Regulations).

1. Section 6 of the Assessment Report provides details of the EPA's assessment conclusions against the criteria set out in the assessment framework in Section 5.
2. Section 6.1 provides the EPA's assessment of the 'Measures to comply with the general environmental duty' and is provided in the following sections:

6.1.1 Risk and hazard identification and management framework

6.1.2 Construction activities

6.1.3 Greenhouse gas emissions

6.1.4 Air

6.1.5 Noise

6.1.6 Water, wastewater and stormwater

6.1.7 Land and groundwater

6.1.8 Odour

6.1.9 Waste (incoming)

6.1.10Waste (outgoing)

1. Each of these sections provides an assessment under the following headings:
   • Identification of risk and degree of harm
   • Knowledge of risk and availability and suitability of controls to eliminate or reduce risks
   • Cost of eliminating or reducing those risks
   • Key considerations
   • Conclusion
2. Under each of the 'Cost of eliminating or reducing those risks' sections, a table of 'Environmental control measures and performance standards' is provided. In each case a statement is also provided, that the EPA has given regard to costs of eliminating or reducing risks of harm to human health and the environment and is satisfied that the proposed or imposition of BATT measures as defined under the 2010 EC IED and 2019 BREF and 2019 BATC represents reasonably practicable measures that the applicant must take and are proportionate to the risks of harm to human health and the environment.
3. The actual statements vary in each of the 'Cost of eliminating or reducing those risks' sections and are as follow:
   • 6.1.1 Risk and hazard identification and management framework
   • 6.1.2 Construction activities

[147] EPA has given regard to costs of eliminating or reducing risks of harm to human health and the environment and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 represents reasonably practicable measures that the applicant must take and are proportionate to the risks of harm to human health and the environment.

[156] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm. Cost has been raised by the applicant regarding additional resource recovery options prior to incineration. EPA has assessed this in further detail under key considerations below.

[157] EPA is imposing requirements for a system for the ongoing identification and implementation of resource recovery prior to incineration when it becomes financially feasible. This is implemented through development licence conditions and future operating licence conditions.

[158] In 2024, EPA will be reviewing operating licence conditions for large scale thermal WtE facilities. EPA will further develop the conditions and standards for identifying and implementing resource recovery prior to thermal treatment. This will ensure there is an ongoing, consistent, and industrywide standard in place.

[189] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm assessed in section 6.2.3 Air.

[190] There are different treatment technologies and design configuration available for air emission controls and the FGCS treatment trains. The applicant has identified a configuration capable of achieving performance standards of the IED. This includes deployment of upgraded systems such as an advanced SNCR system to achieve standards of the BREF and BATC 2019.

[191] Cost has not been raised by the Applicant as a substantive impediment for eliminating or reducing risks including through implementation of BATT.

[241] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm. Cost has not been raised by the Applicant as a substantive impediment for eliminating or reducing risks including through implementation of BATT.

[268] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm. Cost has not been raised by the Applicant as a substantive impediment for eliminating or reducing risks including through implementation of BATT.

[290] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm. Cost has not been raised by the Applicant as a substantive impediment for eliminating or reducing risks including through implementation of BATT.

[308] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm. Cost has not been raised by the Applicant as a substantive impediment for eliminating or reducing risks including through implementation of BATT.

[330] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm.

[384] EPA has given regard to costs of eliminating or reducing risks and is satisfied that the proposed or imposition of BATT measures as defined under the EU IED 2010/75/EU and BREF and BATC 2019 is proportionate to the risks of harm.

[Emphasis added]

1. The 'Key considerations' vary in each of the sections and are as follows:
   • Section '6.1.2 Construction activities' includes 'Key considerations' of:
     • Construction environment management plan
   • Section '6.1.3 Greenhouse gas emissions' includes 'Key considerations' of:
     • Resource recovery
     • Energy efficiency
     • Commissioning and proof of performance
   • Section '6.1.4 Air' includes 'Key considerations' of:
     • Incineration plant, furnace and heat recovery boiler
     • Emission characterisation
     • Flue gas cleaning system
     • Licence limits and emission monitoring

Table 16: Proposed licence limits and emission monitoring

• Reference facilities
• Other than normal operating conditions (OTNOCs)
• Commissioning and proof of performance
• Section '6.1.5 Noise' includes 'Key considerations' of:
  • Site planning, plant layout and configuration\Emission characterisation
  • Plant and mechanical equipment
  • Onsite vehicle movement
  • Other than normal operating conditions
  • Commissioning and proof of performance
• Section '6.1.6 Water, wastewater and stormwater' includes 'Key considerations' of:
  • Water consumption
  • Wastewater management
  • Stormwater management
• Section '6.1.7 Land and groundwater' includes 'Key considerations' of:
  • Chemical, fuels and dangerous goods storage
  • Construction, waste bunker and groundwater
• Section '6.1.8 Odour' includes 'Key considerations' of:
  • Waste tipping hall and bunker
  • Other than normal operating conditions
  • Commissioning and proof of performance
• Section '6.1.9 Waste (incoming)' includes 'Key considerations' of:
  • Targeted waste feedstock - access and availability
  • Targeted waste - Victorian Waste to Energy Framework
  • Waste characterisation and auditing
  • Waste Acceptance Criteria and procedures
  • Pre-incineration waste storage and management
  • Waste treatment or incineration
  • Commissioning and proof of performance
• Section '6.1.10 Waste (outgoing)' includes 'Key considerations' of:
  • Waste characterisation and classification
  • Monitoring and classification
  • Storage, handling and management
  • Resource recovery and IBA treatment

1. By way of illustration, PHI's submissions extracted below explain how EPA considered air emissions and noise emissions and the impacts of the activity on human health and the environment respectively.

1. With respect to EPA's assessment of air emissions as they related to the GED, PHI said:[118] [footnotes deleted]

(a) First, that assessment was both context-specific and detailed. As noted in Part B.2 above, it was informed by a risk-assessment;

(b) Second, it formed part of a broader multi-disciplinary assessment of the measures proposed to implement the GED;

(c) Third, focussing specifically on that part of the EPA's assessment of the GED relating to air emissions, the Assessment Report documented that:

(i) The Application was properly informed by the current state of knowledge concerning the risks and hazards associated with the proposed activities;

(ii) The EPA was satisfied that the risks posed by air emissions had been undertaken in accordance with EPA Publication 1961, the environmental reference standards, and to an adequate standard for the concept phase of the proposal;

(iii) the Application identified a series of specific measures to 'reduce risks of harm associated with air emissions', being those engineering controls summarised in Table 15 of the Assessment Report;

(iv) those measures included the particular design elements specified in the Application, and secured under the Licence, in respect of:

- furnace combustion control;

- the Advanced Selective Non-Catalytic Reduction system;

- the Flue Gas Recirculation;

- lime and activated carbon powder injection in the flue gas duct;

- bag filter capture and Air Pollution Control residues;

- the Continuous Emissions Monitoring System;

(v) the EPA considered the question of cost, concluding that there was not any basis to not require the application of best available technologies and techniques (BATT) as a proportionate response to the risks posed;

(vi) the EPA proceeded to document the key considerations that informed its assessment in respect of various components and attributes of the proposal and the Application, including:

- the incineration plant, furnace and heat recovery boiler;

- emissions characterisation;

- the flue gas cleaning system;

- licence limits and emission monitoring;

- the reference facilities;

- other than normal operating conditions; and

- commissioning and proof of performance;

(vii) based upon the totality of this analysis, the EPA concluded that it was:

[233] ... satisfied that the application demonstrates a sufficient understanding of air emissions and the associated risks of hazards from the proposed activity. EPA is satisfied that the range of controls and performance standards incorporated into conditions will reduce the risk of harm from air emissions so far as reasonably practicable. This includes the ongoing administrative systems and processes for monitoring air emissions and contingency arrangements should risks or hazards occur.

1. With respect to EPA's consideration of air emissions as they concerned the impact of the proposal on human health and the environment:[119] [footnotes deleted]

(a) First, that assessment formed part of a broader multi-disciplinary assessment of the impacts of the proposal on human health and the environment;

(b) Second, the EPA's assessment was informed by the applicable Environmental Reference Standard, and focussed upon the residual risk posed by the proposal, noting EPA's satisfaction that it would implement the GED and adopt BATT;

(c) Third, the EPA noted that whilst the Air Quality Impact Assessment (AQIA) and Human Health Impact Assessment (HHIA) that formed part of the Application were prepared at the time that the former EP Act was in force, it was satisfied that the Application contained sufficient technical information to allow an assessment under the EP Act;

(d) Fourth, the EPA was satisfied that the AQIA was prepared to the standard of a 'Level 2 assessment' as defined in EPA's air pollution guideline, which was the 'most common type of risk assessment';

(e) Fifth, in respect of the approach that was adopted in respect of the modelling of proposed emissions by reference to the 'maximum emission limits allowed under the [2010 EC] IED', the EPA noted the following:

The AQIA applied a conservative assessment strategy. This included modelling the proposed air emissions for each pollutant assuming the maximum emission limits allowed under the [2010 EC] IED. For example, NOx was modelled using the 30-minute average under the [2010 EC] IED emission limits of 400 mg/Nm3. This compares to the daily BAT-AEL of 120 NOx under the [2019] BREF... - refer to Table 16 in this assessment report for more details. The modelling results may therefore be seen as representative of upset or OTNOCs rather than continuous normal operations.

(f) Sixth, the requirement that the facility comply with the BAT-AELs of the 2019 BREF and BATC 2019 under transient, part load, start-up and shut down, and normal operating conditions (Condition DL_G03/4f), was identified as a measure to 'reduce risks posed by air emissions';

(g) Seventh, based on the totality of this analysis, EPA concluded that:

Modelled risk estimates were not predicted to significantly impact sensitive receptors. EPA is satisfied that air emissions pose a low and acceptable risk to human health and the environment.

1. I accept these submissions by PHI as evidence on the record that the EPA considered air emissions in the context of both the GED and the impact of the activity on human health and the environment.

1. As for EPA's assessment of noise emissions as they related to the GED, PHI submits:[120] [footnotes deleted]

(a) First, that assessment was both context-specific and detailed. As noted in Part B.2 above, it was informed by a risk-assessment;

(b) Second, it formed part of a broader multi-disciplinary assessment of the measures proposed to implement the GED;

(c) Third, focussing specifically on that part of the EPA's assessment of GED relating to noise emissions, the Assessment Report documented that:

(i) EPA was satisfied that 'the application demonstrates an understanding of the noise emission risks of hazards associated with the proposed activities consistent with state of knowledge such as EPA WtE guidance (EPA, 2017), the [2010 EC] IED and [2019]BREF and BATC 2019, and standard industry practice';

(ii) the application had identified and assessed the risk of emitting unreasonable noise as determined in accordance with the EP Regulations and Noise Protocol;

(iii) whilst EPA had identified certain methodological issues in the Noise Impact Assessment (NIA), it was satisfied that the application had identified and assessed risks of noise emissions to a sufficient standard for the concept phase of the proposal, subject to a condition requiring submission of a revised NIA before commencing construction;

(iv) a number of specific measures and performance standards were specified within the Application 'to reduce risks of hazards associated with noise emissions';

(v) the EPA was satisfied that '[t]he final detailed design of the noise-generating plant and equipment will be confirmed through the detailed design phase but will adhere to the concept design in the application';

(vi) the EPA considered the question of cost, concluding that there was not any basis to not require the application of BATT as a proportionate response to the risks posed;

(vii) the EPA proceeded to document the key considerations that informed its assessment in respect of various components and attributes of the proposal and the Application, including:

- site planning, plant layout and configuration;

- plant and mechanical equipment;

- onsite vehicle movement;

- other than normal operating conditions; and

- commissioning and proof of performance;

(viii) based upon the totality of this analysis, the EPA concluded that it was:

[261] ... generally satisfied that the application demonstrates a sufficient understanding of noise risks associated with the proposed activity. EPA is satisfied that the range of noise controls should be sufficient to reduce the risk of harm from noise so far as reasonably practicable. This includes the ongoing administrative systems and processes for monitoring noise emissions should they occur.

Noise and Impacts on Human Health and the Environment

1. As for EPA's consideration of noise emissions as they concerned the impact of the proposal on human health and the environment:[121] [footnotes deleted]

(a) First, that assessment formed part of a broader multi-disciplinary assessment of the impacts of the proposal on human health and the environment;

(b) Second, the EPA's assessment was informed by the applicable Environmental Reference Standard, and the applicable Noise Protocol;

(c) Third, the revised NIA submitted in response to the EPA's request for further information, was prepared in accordance with the EP Regulations and the Noise Protocol;

(d) Fourth, the EPA identified that a more stringent noise limit should be imposed, than the one that was utilised within the NIA;

(e) Fifth, the EPA cited the range of noise attenuation measures identified within the Application that could be implemented onsite, as a means of further reducing noise emissions below those modelled within the NIA;

(f) Sixth, the EPA indicated that it was 'satisfied that the proposed noise emission controls not incorporated into the noise modelling are sufficient to achieve its preferred noise limit';

(g) Seventh, the EPA indicated that this outcome would be secured as a consequence of PHI being required to 'verify this by providing an updated NIA based on the final detailed design before commencing construction, endorsed by a suitably qualified EPA appointed auditor (Condition DL_R04/13)', and noted that '[t]his will undergo further proof-of performance verification during the commissioning phase';

(h) Eighth, the EPA also specifically considered risk posed by low frequency noise and risk from noise emission on environment values;

(i) Ninth, based on the totality of this analysis, EPA concluded that it was:

... satisfied that noise emissions pose a low and acceptable risk to human health and environment and the relevant value of the ERS.

1. I accept these submissions by PHI as evidence on the record that the EPA considered noise emissions in the context of both the GED and the impact of the activity on human health and the environment.

1. When all the above matters are taken together, I am not persuaded by Bisinella's central proposition that, on the balance of probabilities, that either EPA misunderstood its statutory obligations or failed to take into account mandatory relevant considerations.
2. The Assessment Report shows on the record that EPA was aware of its obligations under sections 69(3) and (4) of the EP Act 2017 and that a comprehensive assessment of the Application was undertaken. The record is clear that the EPA sought to consider, amongst other things, BATT and independently to BATT, the GED with respect to the risks associated with various emissions and impacts on the environment and human health.
3. Paragraph [117] of the Assessment Report explains what the EPA did when it said that it considered BATT under the EU Framework to be 'generally consistent and complementary to' the GED. EPA did not say that the GED was met by simply complying or conflating GED with BATT under the EU Framework.
4. Rather, EPA took into account the measures proposed to comply with the GED and in doing so, used BATT under the EU Framework as a tool to assess how the proposal would comply with the GED because it was open to it to do so. This does not mean that BATT is the same as the GED, or that the EP Act 2017 does not require BATT and GED to be separately assessed under sections 69(3)(d) and 69(3)(a) of the EP Act 2017 respectively. But there is no text in the EP Act 2017 which states BATT must be excluded from any assessment of the measures proposed to be taken into account for compliance with the GED.
5. The EPA specified, within the Development Licence, performance measures that must be complied with, being performance measures which correspond to emission limits specified in 2019 BREF. There can be no doubt that the EPA can specify performance measures in light of section 54 of the EP Act 2017. For example, the types of technologies that must form part of the application are set out in condition DL_DO3.
6. The EPA has granted a development licence for the proposal specifying that emissions must be in the range in the 2019 BREF emission limits because, for this proposal, the level of emissions are relevant to whether the activity may give rise to risks of harm. The Application specifies the combination of plant and equipment that will be implemented in this proposal and they are specified as what must be delivered as part of the activity. Those measures were assessed by EPA.
7. Where multiple options are not expressly included in an application, it would be impractical and potentially a perverse outcome, if EPA was required to assess every possible combination of the options given the nature of a WfE proposal. This would result in a never ending circle of assessments and consideration.
8. I also consider that the face of the record shows that EPA's Assessment did not defer its assessment of the GED to a later point in time, or rely exclusively upon numerical standards. It instead was constituted by a combination of specific design measures that would form part of the proposal, and by its satisfaction that the proposal would implement measures to ensure that it would comply with international best practice.
9. EPA's assessment made explicit reference to those conditions that would give effect to these outcomes, as the permission was acted upon.
10. What Bisinella has attempted to do is 'dress up' arguments appropriate for the merits by saying that an error has occurred because the Application relied on BATT and conditions imposed in the Development Licence require compliance with emission levels prescribed within the range of the EU framework (rather than requiring the lowest part of the emissions range). It was said this would mean the obligation of the GED is not properly discharged because the GED imposes an obligation to go beyond BATT even if BATT produces a 'low' risk or impact outcome.
11. However, in defence of this argument, it was said by PHI that taking the higher end of the emissions range in BATT was in fact a conservative assessment according to the technical reports.
12. In my view, this reflects the technical analysis that may be required to be undertaken in an application of this type when considering the proposed measures for complying with the GED. There is no evidence before me to suggest that how the Application was framed and how it was assessed by the EPA was unlawful simply because calculations were based on taking a higher, rather than a lower, emission range to prove the GED has not been properly assessed. PHI and EPA defended the choices made. For example, regarding whether an additional wet scrubber was necessary, reference was made to provisions in the 2019 BREF, and 2019 BATC, and the Application at page 42, where it was said that:

For some EfW plants processing hazardous wastes, a second stage wet scrubber is introduced which may be used to further treat flue gases. However, this is not considered necessary for MSW and C&I feedstock to meet the European air emission limits. This option will not be employed for this project due to the additional raw water and wastewater treatment requirements and additional water emissions generated.

1. I accept that compliance with a particular BATT will not necessarily mean compliance with the GED in any given case because that BATT may not address what is required under the GED. However, this does not mean it would be unlawful for EPA to use the BATT as a tool as part of the assessment of the measures intended to be used to comply with the GED. Whilst it is true that every BATT will need to be considered on its own terms, BATT can be a method or tool for minimising harm to the extent reasonably practicable and at the same time, the two requirements are independently assessed. This should not be surprising particularly where there is a well-established and accepted comprehensive framework such as the EU Framework for WtE facilities.
2. Bisinella's contention seems too simplistic and is not based in evidence. Whilst there may be matters that Bisinella can raise at the hearing on the merits, it is not my role in this proceeding to look behind the Assessment Report in that sense (a merits sense).
3. There was no constructive failure on the part of the EPA. The reference to 'proposed measures' is the enquiry under section 69(3)(a) of the EP Act 2017 whether the proposed measures are capable of compliance with GED when that activity is being engaged in the operational phases. EPA's discretion about what information to get about those measures is directed towards the capability of the proponent to comply with the GED. The adequacy of proposed measures is a highly technical assessment exercise for the EPA to conduct and determine whether to call on information as it sees fit, and that is an obligation an EPA must take into account.
4. Further, I do not consider EPA was deferring consideration to an emission standard; rather EPA is applying an emission standard which is BATT but that is a BATT which eliminates harm to the extent reasonably practicable in a coherent way and by one of the ways open to the EPA. The emissions standard is BATT and that is the means for meeting the GED. This cannot be said to be a deferral given Table 15 refers to quantitative matters which are tailored to specific measures and these are secured under the Development Licence itself with specificity of a plan including components in Table 15 e.g. flue gas receptor, flue gas reticulation and so forth.
5. It is clear from the record that the Assessment Report reviews the key considerations and it is clear how the EPA has utilised the EU Framework to inform its assessment of measures to comply with GED in a way that is entirely consistent with harm minimisation in section 69 of the EP Act 2017. Then, EPA, being conscious of the conceptual nature of the design and that further refinement is required for optimisation, requires verification at the detailed design stage endorsed by a suitability qualified EPA- appointed auditor.[122] This is not a deferral of the decision; the assessment occurs now and the Development Licence simply provides a means by which it can be verified.
6. This is appropriate because the GED is not an obligation that stops when a development licence is issued. Rather, the GED is an ongoing obligation and this is consistent, not with a deferral, but that consideration occurs now and verification to ensure optimisation is provided for in the detailed design phase.
7. The IED 2024 is of limited assistance to Bisinella's case because it was not in place at the time the EPA made its decision.
8. In light of the above, I am not satisfied that Bisinella has proven on the balance of probabilities that the EPA misunderstood its statutory task or that the EPA failed to take into account mandatory relevant considerations. Grounds 1 and 2 must fail. There being no error established, I need not consider whether the alleged error was material.

UNCERTAINTY OR IS PERMISSION SIGNIFICANTLY DIFFERENT FROM APPLICATION**

1. The Tribunal should determine the following questions:

1. Was the EPA's decision affected by jurisdictional error on the basis that the decision to grant the Licence approved an application which was so uncertain as to not amount to an effective approval?

1. Was the EPA's decision affected by jurisdictional error because the permission granted by the EPA allowed for something that was significantly different from the thing for which permission was sought?

1. In the first two grounds relied upon by Bisinella conflated into one, the line of enquiry focussed on the front end of decision where it was said there was inadequate information to allow the EPA to discharge its statutory function under Part 4 of EP Act 2017. The focus of Bisinella's submission (and in contrast to its grounds) was about how the EPA was unable to discharge its obligation under section 69(3)(a) of the EP Act 2017 and the measures taken into account to comply with the activity.
2. However as explained above, I have found that the EPA did have sufficient information to complete a risk and evidence-based assessment under Part 4 of the EP Act 2017 of a particular nature of technology used here which is proven understood and robust.[123] I found that grounds 1 and 2 must fail.
3. With respect to ground 3, I agree with PHI that Bisinella seeks to rely on a ground that is a different side of the same coin: ground 3 examines whether the decision that was made by EPA, is wholly aligned with and to the Application.
4. Bisinella submits the decision is explicitly inconsistent with the Application in various ways identified and so uncertain to render it unlawful.
5. Having considered the statutory framework and the materials before me, I consider that PHI has successfully explained why the form of the Application was able to allow the EPA to discharge statutory functions, and so too, is the Development Licence sufficiently certain to be lawful. My reasons follow.

EPA discharged its functions - the 'thing' applied for is the 'thing' which has been approved

1. If the fundamental premise is accepted that it is open for an application to be made and informed by conceptual design and the information allowed the EPA to discharge its statutory function, then, in my view, it cannot be unlawful to grant an application on terms that is wholly aligned with the application.
2. In this case, I do not consider the permission under the Development Licence allowed something different to the concept design, because:
   1. the concept design in Part 7 of Application report and site plan forms part of the Development Licence and is aligned with the permission granted; and
   2. the conditions which require key components of the Application are given effect as part of the undertaking.
3. In coming to this view, I am persuaded that the complimentary provisions in the Development Licence which specify with sufficient precision the components of the Application, the performance parameters that must be met and the verification processes, all ensure the activity applied for is consistent with permission granted by the EPA.
4. This is a case which is distinguishable from the facts in Buzzacott. In Buzzacott, the permission granted was for infrastructure running 100 kms on alignments that had not been assessed in the application materials that culminated in a decision. The Court upheld the condition where the alignments assessed were lawful, but not the condition allowing an alignment found to have not been assessed on different alignments.
5. Here, the permission granted under the Development Licence is precisely the 'thing' for which permission is sought, as informed by the Application which was framed with sufficient information to discharge its statutory function under section 69 of the EP Act 2017. The adequacy of information provided means this is not a case to give rise to a quasi approval process outside of ambit of the EP Act 2017. Instead, the Development Licence specifies things needing to be done, including detailed design so as to be consistent with the clear explanation provided by the EPA. There is a process for the activity undertaken to be consistent between permission sought and granted and for there to be a process of verification in the conditions.
6. The decision in Matuschka demonstrates how in the context of the EP Act 1970 and work authority issues there, the conditions requiring updating of impact assessments concerning detailed design were held to be lawful because they performed the same function as conditions contained within detailed design.
7. Whilst it is true that Matuschka was about different industry sectors and a different level of information may have been provided with the application, when provided in robust form as is the case here, those differences are beside the point. This is because Matuschka demonstrates how decisions of the type contained within an approval of the type in this proceeding can perform the required function, and this is not properly characterised as deferral. That is, the EPA's determination is made at this time pursuant to terms of the EP Act 2017 and focussed on risk and measures for compliance with GED. They are given effect in the approval in the permission with EPA having properly performed its statutory role under Part 4 of the EP Act 2017.
8. Whilst Bisinella made reference to Friends of Gelorup Corridor Inc v Minister for the Environment and Water (No 2) [2022] FCA 1554 (Gelorup), I accept PHI's submissions that Bisinella only relied on it for statements of general principle. This does not develop the general law in any way but summarises Buzzacott. PHI sought to explain why those principles apply in this case, and why it says this permission is lawful and I have accepted those submissions.
9. I find that the Application is comprehensive, detailed and thorough. It is based on a concept plan and the EP Act 2017 does not prohibit applications made on this basis. EPA has a broad discretion in considering such applications including to set performance standards.[124]
10. The Application defines the project according to the concept plan for the proposed activity. The conditions will not permit something 'substantially different' to what has been applied for and approved. Future assessments or reports or plans will require further detail so that the activity will take place in accordance with the application for a Development Licence, and importantly, does not change the environmental impacts within the performance parameters. In this sense, the conditions perform the function of verification.
11. Therefore, I do not find the EPA failed to exercise its discretion such that the Development Licence will allow for a proposal that is significantly different to the Application. The Application was lawfully made on the basis of a concept design and the Development Licence approves what was applied for, with conditions ensuring verification of what is intended is approved.

1. I also accept the submissions made by PHI that the Development Licence is not uncertain. Instead, the conditions will retain flexibility to allow for an appropriate level of refinements in the design phase and will verify compliance with the GED.
2. Likewise as was the case in Matuschka, the nature and scale of this proposal as outlined in the Application, requires flexibility in a Development Licence, in a regulatory system in Victoria which requires consideration of the relevant state of knowledge and the ongoing obligation for a person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste to minimise those risks, so far as reasonably practicable under the GED.

1. For the reasons given above, Bisinella, who bears the onus of proof that an error has occurred on the balance of probabilities, has not persuaded me that an error has occurred. This being the case, ground 3 must fail.
2. There being no error, I need not turn my mind to the question of materiality of the alleged error.

1. The parties agree that ground 4 is properly considered as a component of Grounds 1 and 2; that is, that the Tribunal should consider, as a matter of context to the proper construction of s 69, whether the effect of the EPA's decision was to significantly impact the ability of third parties to effectively exercise their review rights under s 434 of the EP Act.

1. The non-compliance alleged by Bisinella is fundamentally founded upon EPA's decision to assess a 'concept design' rather than a 'detailed design'. For example, Bisinella has pointed in submissions to the following matters it says were excluded from the 'concept design':
   1. the concept design did not include which of the additional noise control measures 'identified for investigation';
   2. the concept design did not fix the plant layout in a way that excluded all possibility of further refinement;
   3. the concept plan did not specify the size, capacity or location of the storage hall for pre-treatment of bottom ash.
2. However, these examples represent variations that would not on the evidence before me result in an increase to the assessed risk. Flexibility is permitted in respect of:
   1. the selection of noise controls because each of the controls identified for investigation will have the effect of reducing noise emissions, not increasing them;
   2. the plant and equipment layout and bottom ash storage hall because whatever variations are made to these configurations, the techniques and technologies implemented must be consistent with the 2019 BATC and the performance standards and risk profile as set and assessed in the impact assessments submitted with the Application.
3. The EP Act 2017 does not evince an intention for the assessment of a 'concept design' that permits variations to reduce the risks of harm from the assessed activity to invalidate a decision to issue a licence for that activity. Most obviously, there is nothing in the text of the EP Act 2017 that demands the EPA determine every conceivable detail of a proposal, irrespective of its importance to the technical assessment required, before proceeding to assess risk. Relevantly, section 50 of the EP Act 2017 specifies the details that must be included in a valid application. There are no express or implied requirements for details of a type set out above to be provided before the EPA's power (and duty) to decide that application is enlivened. In short, the EPA deemed that it had sufficient information before it to engage with the task required of it under section 69 of the EP Act 2017.
4. For the same reason the EPA was able to discharge its statutory function in assessing the Application (as informed by a concept design), so too is Bisinella able to pursue review proceedings before the Tribunal on the grounds specified in section 434(3) of the EP Act 2017, and it has in fact done so.
5. I consider that the specification contained in the Application, and measures introduced under the Development Licence allow Bisinella to engage in that exercise. Just as the EPA's assessment of the activity for which permission was required was evidence and risk based, so too would the Tribunal's assessment of those contentions.
6. The public notice of the Application, and the details within the Application, have provided an extensive amount of information to third parties to be able to lodge an application for review if they wished to do so (as Bisinella has done).
7. The scope for review is not 'nebulous' as Bisinella contends. Rather, it is confined to the grounds specified in section 434(3) of the EP Act 2017, and is specifically directed to be undertaken on the premise that the permitted activity will be undertaken in accordance with the terms of the Development Licence. This does not mean that Bisinella's review rights have been 'significantly impacted'.
8. For example, if a person holds a genuine concern about noise, it is open to it to bring review proceedings for review under section 434(3) of the EP Act 2017. But the applicant for review must make good its proposition as to unacceptable risk or some other ground.
9. Bisinella has exercised its right of review under section 434 of the EP Act 2017, and it will have the ability to participate in the process on the merits. In this circumstance, it is difficult for Bisinella to sustain the argument that EPA's decision is 'functionally unreviewable'.
10. I find Binsella has not persuaded me on the balance of probabilities that there has been error, and Bisinella's ground 4 is not sustained. There being no error found, I need not turn my mind to the question of whether the alleged error was material.

1. Were any of the alleged errors advanced by Bisinella material to the EPA's decision?

1. As Bisinella has not established on the balance of probabilities that errors exist under grounds 1, 2, 3 or 4, I need not turn my mind to whether the alleged errors are material.

1. If the Tribunal considers that Bisinella has established that the EPA's decision was affected by jurisdictional error, are there any discretionary reasons why the Tribunal should not grant the relief sought, including:
   1. a lack of utility in granting the relief that has been sought? and/or
   2. the availability of an adequate alternative remedy in Proceeding P1642/2023?

1. Given I have not been persuaded by Bisinella that there has been an error, let alone a material error, I need not turn my mind to whether declaratory relief should be granted.
2. However, there remains a contest between the parties about whether the Tribunal should exercise discretion and grant the declaratory relief sought if I was to find a jurisdictional error exists.

Discretion should be exercised if error established

1. Bisinella agrees that, if the Tribunal is satisfied that the EPA made one of the errors alleged, it retains a discretion not to grant the relief sought.
2. The starting point for the exercise of discretion must, however, be that a person who has established jurisdiction error should ordinarily be granted relief.
3. As the majority in the High Court explained in Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 in discussing the discretion to grant relief under section 75(v) of the Constitution:[125]

1. Bisinella said it is for the same reason that NSW and Victoria Supreme Courts have observed that, in proceedings for judicial review, once jurisdictional error is established, a writ will issue 'almost as of right'.[126]
2. Bisinella submits that this approach is also consistent with the fact that it is for the person who asserts the relief should be refused (the opponent) to demonstrate that it should be.[127]

1. Bisinella says that PHI relies on three factors which it says justify refusing relief:
   1. the first is a general assertion that, if the problem identified is minor, PHI should be given the opportunity to fix it in the course of the review proceeding. In response, Bisinella says this submission should be rejected because none of the errors identified in this proceeding qualify as 'minor'. It is also unclear how so called 'minor' problems could be fixed with the Application being remitted back to the EPA;
   2. PHI offers two more substantive arguments for refusal of relief. These are:
      1. the alleged existence of an alternative adequate remedy in the form of merits review proceedings under s 434 of the EP Act 2017; and
      2. the alleged lack of utility in making a declaration.

1. With respect to the first point, Bisinella responds by submitting that the review proceeding is not an adequate alternative remedy which would justify denying declaratory relief because:
   1. first, the arguments to be made on the merits review are fundamentally different to the complaint being made here. The argument here is that EPA erred in law because it failed to discharge its statutory function. The consequence is that the decision is no decision at all - and the purported approval is invalid. The availability of merits review - which looks to the preferable or correct decision on the merits - is no answer to this challenge;
   2. second, the right of review under section 434 of the EP Act 2017 is not a right to seek full merits review. As the Supreme Court said in Kwan v Victoria Legal Aid [2007] VSC 122] (Kwan), refusal on the basis of adequate alternative remedy has been most often exercised where an applicant has had the right to seek review in front a decision- maker who 'has full capacity to make a fresh decision about what is "correct or preferable" in a given case'.[128] On the other hand, the Court continued:[129]

... Mechanisms allowing only a limited form of review of the decision have not been regarded as adequate, so the discretion to refuse relief has not been exercised against the applicant.

In support of this view, the Court referred to the decision in Robb v Nixon [2005] VSC 310 (Robb) where the Supreme Court held that a police officer's right to appeal against the Chief Commissioner's decision to dismiss them was not an adequate alternative to seeking judicial review of the Chief Commissioner's decision in the circumstances where the grounds of review were limited, and the applicant bore the onus of proof;[130]

1. the review right conferred by section 434 is, if anything, narrower than the rights considered in Robb. Not only does Bisinella bear the onus of proof under section 434 of the EP Act 2017, but the grounds on which a review may succeed require demonstration of specific and limited criteria. Bisinella could not, under section 434, succeed merely by demonstrating that, on balance, the decision of the EPA was not the correct or preferable one;

1. this contrasts with the situation in Garde-Wilson, Magee v Boroondara City Council [2011] VSC 78] (Magee SCV) and Inglese v Yarra Ranges SC (Includes Summary) (Red Dot) [2014] VCAT 396 (Inglese), where the applicant had a right to 'full' merits review. For this reason alone, the review proceeding does not provide an adequate alternative;
2. beyond that, the review proceeding is currently listed for a 13 day hearing. Should Bisinella succeed, the best outcome is that the decision will be set aside, just as if a declaration were made. It is difficult to see how forcing a litigant to go through a 13 day hearing to achieve the same outcome that could be attained at this hearing would be an 'adequate alternative remedy'.

1. With respect to the second point, Binsella said that PHI submits that a declaration has no utility because the declaration sought does not describe the EPA's decision as 'void'. This is misconceived:
   1. there is no magic in the word 'void'. What is required for a declaration to have utility is that it must have 'foreseeable consequences';[131]
   2. here, the declaration would have practical consequences as it would:
      1. result in the resolution of the declaration proceeding;[132]
      2. mean that the purported approval was of no legal effect;
      3. influence how the review proceeding was to be conducted, including whether there was any need for it to continue;[133] and
      4. create a basis for injunctive relief against PHI should it seek to act on the Development Licence.
2. Finally, if the Tribunal ultimately considers there is some necessity to include the word 'void' in any declaration, it would be entirely within its discretion to do so and there would be no prejudice to it adding those words to the proposed declaration.

1. PHI submits that discretion to grant declaratory relief should not be exercised if jurisdictional error is found because the appropriate remedy for Bisinella is found at the merits hearing and nothing can be gained from granting declaratory relief.
2. EPA submits that for declaratory relief to be appropriate, it ought to have consequences. Here, the declaration sought ought not be made because it would be of no utility. If Bisinella succeeds, the result is the Application is undecided, the EPA is not functus and the matter should be remitted to the EPA under section 130(2)(e) of the Victorian Civil and Administrative Tribunal 1998 (Vic) ('VCAT Act 1998') for determination in accordance with law.[134] Yet, any determination 'in accordance with law' - that is, to remedy the errors in the way that they have been particularised by Bisinella - could result in no practical difference to the outcome.
3. Also, the EPA submits that relief should be denied because a more convenient and satisfactory remedy exists. The availability of a right of review under section 434 of the EP Act 2017 is a strong discretionary basis for refusing relief.[135]
4. In reply, Bisinella made submissions that Parliament can attach consequences to a decision 'in fact' which is nevertheless an invalid or void decision in law (i.e. a jurisdictional error). It said that this is precisely what the VCAT Act 1998 has done where section 4(2)(b) provides that there is a decision under an enactment even if the decision is found to be made beyond power of the decision maker.
5. That is, the VCAT Act 1998 has deemed an invalid decision to be a 'decision' even if it was beyond the power of the decision maker. This means the VCAT Act 1998 gives effect to the fact of the decision being made. This entitles appeals to be made against it in that respect, including appeals with respect to the decision such as merits appeals but Bisinella submits that it does not impugn the decision with lawfulness. Lawfulness is a matter, under this enactment (section 436 of the EP Act 2017) which the Tribunal is entitled to examine. The use of the deeming technique implies a fiction. But it is not saying an invalid decision is a valid decision. Thus, Bisinella contends that there is utility in a finding of jurisdictional error.

1. EPA submits that Bisinella has not properly pleaded the remedy sought in the wording of the declaration in circumstances where the Tribunal does not have power to quash the EPA's decision (unlike in other cases relied upon by Bisnella involving immigration matters).
2. EPA urges me to accept the submission that the appropriate place to resolve Bisinella's concerns is the merits hearing and not exercise discretion to grant declaratory relief.

1. Given my findings that there is no error, it is not necessary to turn my mind to whether I should grant declaratory relief taking into account the submission made about utility, nullity or lack of pleadings.
2. However, if I was wrong and there was found to have been a jurisdictional error, I would not have exercised my discretion and made the declaration sought because I consider that Bisinella's appropriate remedy is found at the merits hearing given section 4(2)(b) of the VCAT Act 1998 allows that proceeding to go ahead even if the EPA's decision was found to be affected by jurisdictional error.
3. Whilst I accept that an application under s 434 of the EP Act 2017 is limited to an applicant's grounds, given the nature of the Application, I consider the merits hearing is a convenient and appropriate forum to agitate the matters concerning Bisinella about whether risk and impacts have been properly assessed in accordance with the GED.

1. For the reasons set out above, the application for declarations is refused.

1. In their written submissions, EPA and PHI reserved their respective positions on the question of costs.
2. We have made procedural orders asking the parties to advise any application for costs is foreshadowed by 20 July 2025. If no party indicates that an application for costs will be made by this date, the Tribunal will assume no application for costs will be made at all.

Bisinella lodges application for declaratory relief in VCAT pursuant to d 436(1) of the EP Act 2017.

• Practice day hearing: 1 February 2024 to consider:
  • statement of contentions
  • whether applications in P1641/2023 and P1642/2023 should be heard and determined together
  • future conduct
• Hearing: 30 & 31 May 2024

PHI makes a request for information from Bisinella. In P1641/2023 and P1642/2023.

VCAT tells PHI it is a non-party in P1641/2023 and can request a file inspection.

PHI requests a copy of the application in P1642/2023 to prepare a statement of grounds ('SOG').

Lara Residents write to VCAT indicating they are intending to register as an incorporated association with a view to lodging a SOG in P1641/2023 and P1642/2023.

1. Amends the timetable in P1641/2023 and P1642/2023;
2. Requires the applicant in P1641/2023 to serve a copy of the application on interested persons;
3. Gives interested persons an opportunity to file SOG in P1641/2023;
4. Allows for service of P1642/2023 which had not been undertaken correctly;
5. Change the practice day hearing date to 20 February 2024;
6. Schedules:
   • Practice day hearing: 20 February 2024 to consider:
     • Any statement of grounds and request for joinder;
     • Statement of contentions;
     • Whether P1641/2023 and P1642/2023 should be heard and determined together;
     • Future conduct;
   • Hearing: 30 & 31 May 2024

O'Halloran's Road Pty Ltd & Ors seek to lodge grounds in P1641/2023 and P1642/2023 and they lodge SOGS.

PHI seeks advice from VCAT if it needs to re-lodge SOG in P1642/2023.

O'Halloran's Road Pty Ltd & Ors file a SOG in P1641/2023.

O'Halloran's Road Pty Ltd file an application out of time under sections 434(1) and (3)(a) of EP Act in P108/2024

VCAT tells PHI that if it wishes to amend its SOG in P1642/2023, it must do so by 5 February 2024.

O'Halloran's Road Pty Ltd & Ors seek to amend their SOG form to relate to P1642/2023 (and not P1641/2023).

VCAT advises O'Halloran's Road Pty Ltd & Ors that their SOG in P1641/2023 was filed late and if they wish to be joined they must file a joinder request, but the Tribunal later confirmed the email was sent by VCAT in error.

Application materials in P1641/2023, P1642/2023 and P108/2024 were sent by VCAT to the EPA, PHI and O'Halloran's Road Pty Ltd.

Charles Street files SOG in P1641/2023 and seeks joinder in P1641/2023.

Charles Street circulates his SOGs to Bisinella, EPA, PHI and O'Halloran's Road Pty Ltd & Ors.

VCAT advises and grants O'Halloran's Road Pty Ltd its request to amend SOGs to relate to P1642/2023 (and not P1641/2023).

• seeking joinder;
• querying standing of Bisinella, and unless standing can be established, application should be dismissed;
• even if standing established, the application should be dismissed for no utility;
• if the application is not summarily dismissed, then it relies on certain grounds; and
• ask for the above matters to be added to the PDH on 20 February 2024.

• querying whether Bisinella has standing to bring the application, and unless standing can be established, application should be dismissed;
• if the application is not summarily dismissed, then it relies on certain grounds; and
• ask for the above matters to be added to the PDH on 20 February 2024.

VCAT provides a copy of the applications in P1641/2023 and P1642/23 to the EPA, PHI and O'Halloran's Road Pty Ltd & Ors.

VCAT advises PHI that a SOG fee in P1642/2023 was required but later advised this should be disregarded as an email sent in error.

Charles Street seeks amendments to his SOG lodged on 4 February 2024 which incorrectly referred to P1641/2023 when it should be P1642/2023.

VCAT advises Charles Street that his SOG is amended to relate to P1642/2023.

Bisinella advise that they can't file statements of contention in P1641/2023 and P1642/2023 by 14 February 2024 but can do so by 16 February 2024.

O'Hallorans's Road Pty Ltd & Ors indicate they consent to PHI filing statement of contentions on 16 February 2024.

Separate subsequent orders in P1641/2023, P1642/2023 and P108/2024 - scheduling:

• First practice day hearing to consider:
  • Whether any person seeks leave to amend their applications or statement of grounds in P1641/2023, P1642/2023 & P108/2024.
  • To confirm the current parties in P1641/2023, P1642/2023 and P108/2024.
  • To ascertain whether any person seek joinder in P1641/2023, P1642/2023 and P108/2024.
  • To ascertain whether any joinder application is opposed.
  • For P108/2024 to consider whether the application under section 126 VCAT Act 1998 be heard at a second PDH or preliminary hearing, and whether the extension request is opposed.
  • Whether a preliminary hearing should be scheduled, including to consider whether P1641/2023 and P1642/2023 should be summarily dismissed on grounds raised by PHI.
  • Whether any questions of law are to articulated for consideration at the preliminary or main hearing;
  • When VCAT should hear and consider whether P108/2024, P1641/2023 and P1642/2023 should be heard and determined together;
  • Any statement of contentions;
  • When the Tribunal should make procedural orders about the compulsory conference or timetable for evidence and submissions;
  • Future conduct
  • Hearing: 30 & 31 May 2024.

Group case subsequent order in P1641/2023 and P1642/2023 & P108/2024

• preliminary hearing - 9 & 10 May 2024;
• second practice day hearing held on 17 June 2024;
• compulsory conference on 20 May 2024 (P1642/2023 & P108/2024 only);
• hearing on 24, 25, 26, 29, 30, 31 July & 1 August 2024 (P1642/2023 only);
• hearing on dates to be fixed (P1641/2024 only);
• Hearing on 5, 6 & 7 August 2024 (P108/2024 only;
• P1641/2023 - joining PHI as a party;
• vacating hearing on 30 & 31 May 2024 in P1641/2023;
• vacating the compulsory conference on 21 May 2024 in P108/2024;
• leave to applicants and joinder requestors to amend application or grounds by 13 March 2024;
• provide list of expert witness subject matter or evidence and whether calling lay evidence by 13 March 2024;
• make applications for strike out and provide list of expert witness subject matter by 27 March 2024;
• raise any question of law at the preliminary hearing by 3 April 2024 and objections to be advised by 8 April 2024;
• evidence for preliminary hearing - 18 April 2024;
• submissions for preliminary hearing - 24 April 2024; and
• Tribunal book for preliminary hearing - 6 May 2024
• Purposes of preliminary hearing:
• Whether VCAT has power to extend time to commence P108/2024;
• Whether to extend time in P108/2024;
• Whether to strike out or summarily dismiss P1641/2023, P1642/2023 and P108/2024;
• Whether to join O'Halloran's Pty Ltd & Ors and Charles Street to P1642/2023;
• Whether P108/2024, P1641/2023 and / or P1642/2023 should be concurrent hearings;
• Whether the evidence in one proceeding should be heard in the other proceedings in P1641/2023, P1642/2023 & P108/2023;
• To consider any questions of law submitted; and
• Future conduct.

• Preliminary hearing on 9 & 10 May 2024;
• Second practice day hearing on 17 June 2024;
• Compulsory conference in P1642/2023 and P108/2024 on 20 May 2024;
• Hearing in P1642/2023 - on 24, 25, 26, 30, 31 July 2024 and 1 August 2024;
• Hearing in P1641/2023 - on dates to be fixed; and
• Hearing in P108/2024 - on 5 - 7 August 2024.

1. New joinder request by NWILGG and in alternative Charles Street in P1642/2023;
2. No party is seeking to strike out the proceeding.
3. No evidence is being called for preliminary hearing;
4. 12 witnesses are being called for main hearing;
5. Evidence for preliminary hearing ('PLM') due 18 Aril 2024;
6. Submissions for PLM due 24 April 2024;
7. Reply submissions for PLM due 3 May 2024;
8. Tribunal Book due 6 May 2024;
9. Change in purposes for PLM to consider 'objection to the questions of law raised by EPA';
10. Second PDH include new purpose for joint statement of facts agreed or not agreed.

O'Halloran's Pty Ltd - provide consent order re no joinder in P1642/2023 and seek to withdraw P108/2024.

Procedural order - granting request that O'Halloran's Pty Ltd not be joined to P1642/2023 and no order as to costs.

Procedural order - granting leave for O'Halloran's Pty Ltd & Ors to withdraw the proceeding in P108/2024. No order as to costs.

Correction order to add extra orders to vacate the PLM on 9 & 10 May 2024 and vacate the second PDH on 17 June 2024.

Group order for P1641/2023 & P1642/2023 only - to delete purposes or milestones which are no longer relevant or have been vacated.

Preliminary hearing order in P1642/2023 and P1641/2023:

• NWILGG and Charles Street are NOT joined;
• P1641/2023 and P1642/2023 NOT be heard together; and
• No order is made for evidence under section 98(2A) VCAT Act.

• requests for further and better particulars;
• whether there should be a compulsory conference;
• final hearing dates;
• timetable for joint statement of facts agreed and not agreed in P1641/2023;
• timetable for joint statement of facts agreed and not agreed in P1642/2023;
• confirm the questions of law raised by EPA on 3 April 2024 and the timing for consideration - in P1642/2023;
• timetable for evidence;
• timetable for conclave;
• timetable for supplemental evidence;
• timetable for Tribunal Book for P1641/2023;
• timetable for Tribunal Book in P1642/2023;
• order of proceeding.

• Scheduling a hearing on 29, 31 July 2024, and 1 & 2 August 2024
• 1 July 2024 - submissions (applicant);
• 8 July 2024 - evidence (all parties);
• 15 July 2024 - submissions (other parties);
• 22 July 2024 - submissions in reply (applicant);
• 23 July 2024 - Joint statement of facts agreed and not agreed and Tribunal Book; and
• Order of presentation

• Applicant replied to PHI's request for further and better particulars on 14 June 2024 - no request for orders;
• no order for supplemental evidence or evidence in reply;
• no conclave orders requested;
• no compulsory conference.

Hearing (interim orders) adjourning hearing to 28 August 2024:

• Orders requiring Tribunal Book 6 by 7 August 2024

Vacated by order of the Tribunal dated 2 August 2024:

• Schedules hearing on 28 August 2024 and includes the place of the hearing;
• Tribunal Book 6 due 7 August 2024.

Procedural order granting request to file joint issues statement on 24 September 2024

1. The following preliminary matters were raised at the commencement of the hearing by the Tribunal:
   1. the Tribunal reminded the parties that it wrote to them on 3 July 2024 explaining that despite the composition of the Tribunal, the exercise of the power to make a declaration in this proceeding would be solely made by Deputy President Daicic;
   2. Deputy President Daicic made a disclosure with respect to PHI's representative legal firm. No party made submissions opposing the composition of the Tribunal on this basis;
   3. that an extensive Tribunal Book comprising (at the time) four volumes[136] at over 7000 pages has been received by the Tribunal, and no evidence was filed by the parties. The Tribunal explained that the parties must direct the Tribunal to the relevancy of any documents in that Tribunal Book for consideration because the Tribunal will not consider the material which has not been clearly directed to the Tribunal's attention; and
   4. the Tribunal drew the parties attention to the recent decision of McDonald J in Anderson v PWM (Lyndhurst) Pty Ltd & Anor [2024] VSC 417 issued on 18 July 2024 in the event the parties wish to make further submissions about this decision.
2. During hearing, Member Bennett made a disclosure with respect to her familiarity with an author of one of the documents provided with the Application. No party took issue with this and the hearing proceeded.
3. No party took any issues with respect to the above matters, and we record Bisinella's oral submission that the determination (of both law and facts) should be entirely made by Deputy President Daicic.

1. Bisinella indicated that it has recently discovered that Tribunal Book Volume 4 contains the wrong version of the legislation relevant to this proceeding.
2. A new Tribunal Book Volume 5 was provided on day two by Bisinella with agreement from the other parties which included:
   1. relevant extracts of version 15 of the EP Act 2017 (current version);
   2. relevant extracts of version 12 of the EP Act 2017 (version in place at time of the EPA's decision);
   3. schedule 1 of the EP Regulations 2021; and
   4. second reading speech of the Environment Protection (Review) Bill 1984 dated 3 May 1984.
3. The EPA made submissions that the correct version provided in Tribunal Book Volume 4 is applicable because as it was the version at the time the EPA made its decision (that is, document nos. A1 - A11, contained in version 12 of the EP Act 2017 applied at the time the EPA made its decision).
4. PHI submits that it suspects nothing much turns on this because the issue is whether section 51A of the EP Act 2017 was in force at the time of the decision and the parties can confer about this and advise the Tribunal.
5. The Tribunal and the parties relied on Tribunal Book 5 during the course of the (resumed) hearing.

1. After hearing from the parties, the Tribunal made ruling that the order of proceeding will be:
   1. Bisinella;
   2. PHI;
   3. EPA; and
   4. Bisinella's reply.

Leave for additional documents - new Tribunal Book 6

1. On 30 July 2024, PHI sought leave to provide:
   1. submissions in relation to Anderson v PWM (Lyndhurst) Pty Ltd & Anor [2004] VSC 417;
   2. EPA Publication 1856 September 2020: 'Reasonably Practicable'; and
   3. Works Approval 194725 issued 23 December 2020.
2. On 31 July 2024, PHI provided, with leave of the Tribunal,:
   1. Anderson v PWM (Lyndhurst) Pty Ltd & Anor [2004] VSC 417; and
   2. EPA Publication 1856 September 2020: 'Reasonably Practicable' (clean copy).
3. On 1 August 2024, Bisinella provided the following additional documents:
   1. Works Approval Application 1003316 made by Yumbah Aquaculture Limited ('Yumbah WA Application')
   2. Appendices A to K to the Yumbah WA Application; and
   3. EPA Assessment Report in respect of the Yumbah WA Application.
4. Later on 1 August 2024, PHI provided a link to:
   1. a document on the European Council - Council of the European Union, 'Industrial emissions: Council signs off on updated rules to better protect the environment'.
5. On 2 August 2024, PHI provided an extract from the former EP Act 1970 which contains the definition of 'premises'.
6. On 2 August 2024, the Tribunal made orders requiring the PHI to include all the above documents in Tribunal Book 6 and any further document proposed for inclusion in the Tribunal Book.
7. Tribunal Book 6 was provided on 7 August 2024 containing the above additional documents as well as the document referred to below:
   1. 2024 EC IED - Directive 2024 / 1785 of the European Parliament and of the Council of 24 April 2024 amending Directive 2020 / 75 / EU of the European Parliament and of the Council in industrial emissions (integrated pollution prevention and council) and Council Directive 1999/32/EC on landfill of waste.
8. Receipt of Tribunal Book 6 was not contested by any party.
9. PHI clarified that EPA Publication 1856 September 2020: 'Reasonably Practicable' was referred to in the Assessment Report at paragraph 115.

WAS THERE A CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION AND FAILURE TO CONSIDER MANDATORY RELEVANT CONSIDERATIONS?**

1. First and second grounds are set out below:
   1. In assessing the application, the EPA relied upon a conceptual design to establish that an appropriately designed project could achieve acceptable outcomes rather than assessing a detailed design to determine whether the facility as designed would achieve the required outcomes.
   2. As a consequence of its acceptance of this approach, the EPA imposed conditions on the licence which had the effect of deferring the determination of whether the facility as constructed was capable of achieving the required outcomes for an indefinite period.

1. It amounted to a constructive failure to exercise the EPA's jurisdiction in circumstances where the EPA was required to refuse the application if it concluded the activity would poses [sic] an unacceptable risk to human health and the environment and the effect of the EPA's decision was to defer the question of whether the specific development as ultimately proposed would pose such a risk to the future process established by the conditions on the development licence.
2. Further, or alternatively, the EPA constructively failed to have regard to mandatory relevant considerations contained in s 69(4) of the Act in that it approached the consideration of those matters by reference to a potential facility rather than by reference to the specific development as ultimately proposed.

1. Central to Bisinella's case is that the EPA followed a non-statutory process when it purportedly approved the Application and in doing so, the purported 'decision' of 6 December 2023 is infected by jurisdictional error and in fact no decision exists at law.
2. Bisinella submits the EPA, at best, has not approved any actual development, rather it purported to approve the framework within which the actual development will be considered at some time in the future in the context of a non-statutory approvals process.
3. Bisinella's submissions emphasised there must be a focus on:
   1. what precisely has the EPA been asked to approve;
   2. what precisely has the EPA assessed;
   3. how precisely has the EPA purported to approve; and
   4. what has the EPA approved.
4. It is common ground that the EU Framework referred to the Application and the Assessment Report at the time the EPA made its 'decision' is BATT with respect to section 69(3)(d) of the EP Act 2017.
5. Bisinella's complaint is that this is not an answer to the question raised by section 69(3)(a): 'does the activity proposed here, minimise, as far as reasonably practicable, the risk of harm?'
6. That is, Bisinella submits that whilst a facility could meet the standards under EU Framework, it may still be reasonably practicable to reduce emissions for an aspect of the proposal. Bisinella submits it is not possible to assess whether particular controls or measures could reasonably be improved without details of the emissions themselves, established by the criteria in section 6(2) of the EP Act 2017 which defines what is meant by the phrase 'reasonably practicable'.

1. In summary, Bisinella's submissions with respect to the first and second grounds are:
   1. the fact of there being extensive Application materials does not contemplate the kind of assessment required under the EP Act 2017;
   2. there is no contest that the Application has been made on the basis of a 'concept design' (as provided in Appendix M) and it is agreed that the use of a 'concept plan' of itself is not prohibited under the legislative scheme;
   3. properly construed, section 69 of the EP Act 2017 requires EPA to undertake an assessment of the impacts of the specific activity for which permission is sought in its specific context at the time the EPA makes its determination on whether to grant a development licence or not;
   4. the statutory framework[137] is requiring permission for the specific plant and equipment for the prescribed activity of a waste to energy facility and it is not sufficient to simply describe the prescribed activity as a 'waste to energy' facility. It is calling for the specific type of waste to energy facility. This must be so because the EP Act 2017 requires an assessment of the impacts of the plant and equipment for that particular activity;
   5. a requirement for a context - specific assessment of actual works is supported by the overarching purposes of the EP Act 2017, the objective of the EPA and the GED, and the principles of the environmental protection as set out in Part 2.3 of the EP Act 2017 and section 22 of the EPA Act 2017 (for example, the Principle of Accountability);
   6. the assessment of the impact of an activity and consideration of what is reasonably practicable demands a context-specific answer; the same activity will pose different risks depending on where it is located, and the consequences of those risks eventuating may also be affected by the activity's spatial context. Similarly, the practicability of reducing impacts will be affected by a range of contextual factors, both physical and non-physical;
   7. it is not possible to say what the likely emissions from the project will be, because the information necessary to make that determination has not been provided for this particular concept design because:
      1. there are significant further steps before the Application can progress beyond a concept design. Examples of 'yet to be fully established matters' referred to included:
         1. proposed waste feedstock is yet to be determined;
         2. noise impact assessment is in the 'early design phase' with a number of design parameters yet to be fully developed';
         3. air quality assessment requires additional assessments at the final design stage to comply with the GED;
         4. additional health impacts assessment is required;
         5. many other important aspects of the proposal were confirmed to be 'preliminary' and subject to final detailed design, including the energy efficiency of the project, the analysis of water use and discharge and the net calorific value of waste fuel;
      2. the EPA's assessment deferred consideration of various important issues by imposing conditions in the Development Licence, which are considered more than just refinements of the Application, including assessments about:
         1. risk assessment framework;
         2. environmental performance standards and energy efficiency;
         3. air emissions;
         4. noise emissions;
         5. odour emissions controls;
         6. waste characterisation;
         7. targeted waste feed;
         8. waste water management;
         9. risks of hazards, chemical, fuels dangerous goods storage, outgoing waste management controls, monitoring and classifications;
   8. the lack of resolution of many matters is confirmed by the Development Licence which is structured in a way to establish significant further stages to occur in the future such as a waste water audit, competitive tender for contract partners, completion of detailed design, tests for final assessments at the approval stage;
   9. the conditions in the Development Licence cannot be characterised as 'validating' work which has already been done. Rather, the Application indicates that the project's emissions would be below certain levels and it follows that the assessments required to be conducted under condition DL_R04 will be the first assessments of the actual emissions to be generated by the project. Thus, whether or not it can be said that the proposed development has discharged the GED cannot be known in any meaningful way until that work is done;
   10. the EPA did not, in substance, engage with the matters required to be considered under sections 69(3) and (4) of the EP Act 2017 with respect to the Application's assessment of the GED and the obligation to eliminate risks of harm to human health and the environment and if that is not reasonably practicable, to reduce those risks 'so far as reasonably practicable' (sections 25(1) and 6(2) of the EP Act 2017);
   11. the 'vice' is that the statutory task can only be completed when regard is had to the actual plant and equipment proposed to be constructed rather than a concept design (although Bisinella accepts this does not necessarily spell the 'death nell' of concept plans per se);
   12. the EPA approached the task under section 69(3)(a) by saying it was satisfied the GED was met if the Application complied with the BATT under the EU Framework. This was said how the error emerges because the GED and the BATT are not the same standard or code, and compliance with the EU scheme does not necessarily discharge the GED;
   13. compliance with the GED requires 'the minimisation, to the extent reasonably practicable, of the risk of harm', which Bisinella submits could include the 'elimination of risk'. And so, a project that complies with the EU Framework as BATT, might nevertheless require further reduction of risk under the GED. And that assessment needs to occur at the time the EPA makes its decision rather than at some point in time in the future in compliance with licence conditions;[138]
       1. for instance, Article 15 of the 2010 EC IED sets upper limits when it refers to the words 'do not exceed' as the emission level associated with best available techniques; it is not asking the question in the Victorian context 'does the activity minimise the risk of harm as far as reasonably practicable';
   14. in the absence of an actual estimate of emissions, it is not possible to determine whether the GED has been satisfied, and merely imposing a requirement for emissions to be at or below a limit does not demonstrate that they cannot be reduced further;
   15. Bisinella points to examples in the Application and correspondence between the EPA and PHI demonstrate that there were opportunities to further reduce emissions with reference to the consideration of a second wet scrubber to further treat flue gases, and PHI's opposition to a condition mooted by the EPA for the proposal to meet 'the lower end of the emissions limits in the EU standards ('BAT-AEL') because the 2019 BREF does not expect [waste to energy plants] to meet the lower end of the range' and suggests the project will simply seek to meet the upper limits;
   16. merely imposing a requirement for emissions to be at or below a limit does not demonstrate that they cannot be reduced further. To the contrary, the evidence demonstrates that both the EPA and PHI identified that further measures do exist which could potentially reduce air emissions further. Any sensible evaluation of whether those options should be pursued required an understanding in quantitative terms of the comparable effects of different controls on emissions;
   17. whilst both PHI and EPA say that the Application presented in the form of the concept design was adequate to enable an assessment because:
       1. it committed PHI to BATT in the form of control mechanisms recommended in the EU standards and to meet Best Available Technology - Air Emissions Limits (BAT-AEL); and
       2. that commitment was sufficient to discharge the GED and remove the need for any more detailed qualification of the impacts of the project prior to the grant of the Development Licence;[139]

[Bisinella submits] there is no statutory basis for the Tribunal to accept the approach adopted by PHI and EPA because:

1. no text has been identified in the EP Act 2017 which suggests that the adoption of BATT should be taken as discharging the GED or obviating the need to consider the actual impacts of the project on human health and the environment;
2. the sole identified basis for the assertion that the adoption of BATT has this effect of entailing compliance with the GED is the definition offered at [611] of the Assessment Report which quotes a definition from the EPA policy document Guideline for Assessing and Mitigating Air Pollution in Victoria (EPA Publication, 1961) ('GAMAPV') but this is not in the EP Act 2017 itself;
3. the guidance in the GAMAPV itself:

(1) identifies the assessment of BATT as 'part of' assessing controls to identify the most reasonably practicable measures to manage risks;[140]

(2) in Table 5 which identifies the matters the EPA will consider when evaluating compliance with the GED for development applications, identifies the consistency of proposed controls with BATT as one factor to be considered;[141]

(3) expressly provides that 'it is expected that an evaluation of multiple control options will be presented' which 'need[s] to highlight the relative benefits, costs and disadvantages of each option,[142] and this approach contemplates quantitative assessment of options in determining whether GED is met, rather than simply an adoption of BATT and notably no such evaluation occurred here;

1. the words' take into account' in the text of section 69(3) contemplates that compliance with the GED and impacts to human health will be considered whenever the EPA has to make a decision on whether to grant a development licence because:

(1) that each of BATT (section 69(3)(d)), compliance with the GED (section 69(3)(a)) and impacts to human health (section 69(3)(b)), will be considered whenever the EPA has to make a decision;

(2) section 69(4) impliedly imposes an obligation to consider whether the activity the subject of the application poses an unacceptable risk to human health and the environment;

(3) the obligations to consider these matters is not expressly nor impliedly qualified in any way by the text of the EP Act 2017;

1. treating the adopting of BATT as, in substance, discharging the need to consider any of the other matters specified in section 69(3) and (4), is inconsistent with the unqualified nature of the requirement imposed by those sub-sections;
2. it would be contrary to the established interpretative principle that a construction that gives effect to every word of a statute must be preferred to one that does not, as it would mean, where BATT was adopted, there was no need to consider compliance with the GED or the impact of the activity on human health and the environment;
3. the EP Act 2017 does not provide a specific statutory mechanism by which the EPA can treat a standard as automatically discharging a duty (including the GED) other than a compliance code made under Part 5.3 of the EP Act 2017, but no such code has been issued here;
4. nothing in the EP Act 2017 indicates that Parliament intends that compliance with the standards below would result in the GED being discharged including:

(1) the Environment Reference Standard ('ERS') and this is confirmed in the Guide to the Environmental Reference Standard;[143]

(2) the air pollution assessment criteria ('APACs) also made in the GAMAPV, noting the EPA assessed the risk to human health as low and acceptable because the air emissions, if generated in accordance with BATT, would not exceed any of the APACs;[144]

(3) EU standards to act as a 'proxy' for discharging the GED;

1. it follows that an unacceptable risk of harm must include a risk of harm that has not been minimised so far as reasonably practicable and section 69(4)(a) of the EP Act 2017, which compels the EPA to refuse an application if the EPA considers that the activity that is the subject of an application poses an unacceptable risk of harm to human health or the environment;
2. it also follows that in deferring the above considerations and the evaluative process required under section 6(2), third parties have no ability to participate in the scrutiny of those aspects deferred under the Application because the process becomes confined to a discussion between proponent and the EPA at that stage. That is not what the statutory scheme calls for particularly when one refers to sections 52 and 69 of the EP Act 2017.

EPA could not undertake the statutory task given how the Application was framed

1. In oral submissions made in reply, Bisinella said:
   1. the Tribunal should not accept the EPA's submission that the assessment was acceptable even if the actual level of emission is unknown on the basis it is consistent with BAT-AELs because in the absence of a quantitative evaluation of the relevant emissions means it is not possible:
      1. to identify the 'impacts' (as opposed to 'risks') on human health and the environment as required under section 69(3)(b); or
      2. to identify whether the risks could be reduced further by reasonably practicable means;
   2. the mere identification of controls provided by PHI does not by itself determine the impact or determine whether other controls might reasonably practicably deliver a better outcome;[145]
   3. the submission that the final design will be materially the same as the concept design should be rejected because this is contradicted by:
      1. the conditions in the Development Licence themselves impose a process for important assessment and considerations that should properly take place at the time of approval;
      2. the nature of the Application and what is left in the post approval phase for assessment;
      3. merely complying with the EU standards is not the correct test and if the limits were set in the approval by the wrong test, then simply saying complying with the EU standard is simply incorrect;
   4. the call to pragmatism finds no foundation in the EP Act 2017 when the obligation is to consider the Application on its merits and to determine whether there is compliance with the GED. This is particularly at the construction phase when it is possible to design out risk of harm sooner, and pragmatism should not bypass the explicit framework and the only opportunity of scrutiny of EPA's work under section 434 of the EP Act 2017.

Mischaracterisation of Bisinella's 'attack' to say the EPA's decision was 'open to it'

1. In oral reply submissions, Bisinella said that PHI and the EPA had mischaracterised the 'attack' made by Bisnella on the EPA's decision - that what the EPA has done 'was open to it' and, as a result, the Tribunal should not interfere with the exercise of the EPA's discretion.
2. Bisinella said that PHI and EPA relied on the following propositions:
   1. the EP Act 2017 confers broad discretions on the EPA as to:
      1. the form and content of an application (section 50 of the EP Act 2017);
      2. the discretion it has in requesting Requests for Further Information ('RFIs') (section 51A of the EP Act 2017);
      3. the imposition of conditions (section 54 of the EP Act 2017); and
      4. the manner of the assessment under section 69(3) of the EP Act 2017 because it does not prescribe the weight to be given to different things, it leaves the discretion to be exercised broadly;
   2. the EPA is an expert body exercising its powers and it is within the exercise of discretion of the EPA to treat the application as sufficiently complete to proceed to assessment;
   3. VCAT is not exercising review power here, rather it is effectively exercising judicial review and the Tribunal should be cautious not to try and make the decision again.
3. Bisinella says that PHI's and EPA's arguments are premised on establishing that the EPA's decision was unreasonable in a legal sense, in the Wednesbury[146] sense.
4. However, Bisinella submits that its 'attack' is not based on Wednesbury's unreasonableness, or on lack of evidence or on irrationality. Rather_,_ Bisinella submits that the premise of its case is that the EPA's approach is based on a misdirection as to the operation of the statute and that is manifest in the Assessment Report.
5. Further, Bisinella says this 'attack' is premised upon Bisinella's contention that the EPA misunderstood its statutory task and in doing so, failed to exercise its power by deferring the assessment of matters required by the statute to occur at some point after the decision, and that deferral was impermissible. And whilst the EP Act 2017 confers substantial discretion on the EPA, discretion must be exercised in accordance with the statutory powers and that any broad discretion that exists is not a cure to any of the defects Bisinella alleged to have occurred.

How the EPA misdirected itself in applying the EU framework

1. Bisinella submits that the misdirection by the EPA was to treat the EU documents - the 2010 EC IED, the 2019 BREF and 2019 BATC, as a proxy or substitute for the GED. Bisinella submits that the misdirection is demonstrated by:
   1. paragraph 117 of the Assessment Report;
   2. the nature of the proposal before the EPA and what PHI sought;
   3. the final form of the conditions.
2. Bisinella made it clear in submissions that it does not challenge the finding of the EPA that the EU framework represents BATT in the context of the EP Act 2017 framework.
3. Instead, what Bisinella challenges is that BATT, as described in the 2010 EC IED, equates to what the GED describes as the 'duty'.

1. In order to make good this proposition, Bisinella submits paragraph [117] of the Assessment Report states:

BATT for WtE under the EU framework specifies both mechanical and administrative controls - and does so in a risk-based approach. In this regard, the BATT measures of the EU Framework may also be considered generally consistent and complementary with the preventative approach of the GED. While the EU framework refers to BAT under its framework, this is compatible with BATT under the EP framework. These terms are used interchangeably throughout this report...

1. Bisinella says the Assessment Report:
   1. does not explain how it is that the EU framework may also be considered 'generally consistent and complementary with the preventative approach of the GED';
   2. nor how BAT under the EU framework is 'compatible with BATT under the EP framework'.

How EPA applied the EU framework and imposed conditions

1. Bisinella points to Article 3 of the 2010 EC IED that contains the definition of 'BAT' and paragraphs 11 ('BAT reference document'), 12 ('BAT conclusions') and 13 ('emission levels associated with the best available techniques'), and submits that not one of the terms in relation to the definition of BAT states 'reduce emissions, so far as reasonably practicable' as required under the GED of the EP Act 2017.
2. Bisinella says whilst the EU framework identifies or indicates techniques which are suitable for providing the basis for emission limit values and other permit conditions are designed to prevent and reduce, there is not the same language that is used for the GED which is 'the reduction of risk so far as reasonably practicable'.
3. Whilst Bisinella agrees that Article 10 ('best Available techniques') of the 2010 EC IED is 'comparable' to the GED, it is not a substitute for the GED because the GED goes further.
4. Bisinella submits that condition DL_GO3 in the Development Licence gives permission for a range of 'things' approved consisting of 'the following key components' including a flue gas cleaning system for each incineration process line which includes sub-condition 4(f) which provides the following:

...meets the requirements and procedures (including applicable emission limits) of the EU IED 2010/75/EU with and reduced emission levels necessary to reflect the outcomes of the future reports provided under condition DL_RO4 and which is capable of:

(i) operating within the BAT-AEL ranges for new plants contained in BAT 25, BAT 27, BAT 28, BAT 29, BAT 30 and BAT 31 of BATC 2019 under transient, part load and start-up and shutdown operating conditions; and

(ii) does not exceed the BAT-AEL ranges for new plant contained in BAT 25, BAT 27, BAT 28, BAT 29, BAT 30 and BAT 31 of BATC 2019 under all other operating conditions and reduce emissions within those ranges so far as reasonably practicable'

1. Bisinella says that sub-condition 4(f) embraces 2019 BATC, which is defined as laying down the conclusion of BAT techniques - refer to Article 11 and 12;
2. Article 10 defines 'best available techniques' are:

means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and where that is not practicable, to reduce emissions and the impact on the environmental as a whole:

(a) 'techniques' includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned;

(b) 'available techniques' means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator;

(c) 'best' means most effective in achieving a high general level of protection of the environment as a whole;

[emphasis added]

Comparing the GED and concept of 'minimising risks of harm'

A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

1. The concept of minimising risks of harm to human health and the environment

(1) A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person - > > > (a) to eliminate risks of harm to human health and the environment so far as reasonably practicable; and > > > > (b) if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable. > > (2) To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters - > > > (a) the likelihood of those risks eventuating; > > > > (b) the degree of harm that would result if those risks eventuated; > > > > (c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks; > > > > (d) the availability and suitability of ways to eliminate or reduce those risks; > > > > (e) the cost of eliminating or reducing those risks.

3. Bisinella submits that the obligation under the EP Act 2017 requires a person to eliminate risks of harm so far as reasonably practicable, and if it is not reasonably practicable to eliminate risks, to reduce those risks so far as reasonably practicable. This is not qualified by best practice, or EU standard or ERS. The obligation exists and persists.
4. Further, Bisinella says that if the risk to human health is considered 'low', under the old EP Act 1970 regime, the Application could have got an approval. But under the new EP Act 2017, if the risk to human health is 'low' and it is reasonably practicable to make it lower, then the GED, imposes an obligation to make it lower. That is, the regime imposes an obligation to eliminate the risk if reasonably practicable however low that might be, and if that cannot be so eliminated, then to reduce it so far as reasonably practicable.
5. In this regard, Bisinella says that section 6(2) provides a list of interconnected factors to determine what is (or what was at a particular time) reasonably practicable to the minimisation of risks of harm to human health and the environment. Those factors are:
   1. the likelihood of [those] any risks eventuating, even if they are considered low;
   2. the degree of harm is the language used, rather than implying only harmful risks are relevant; it is not saying a low risk means that the GED is discharged;
   3. whether the person knew or ought to have known (noting this concerns operational matters and is really intended for criminal prosecution scenarios);
   4. the availability and suitability of ways to eliminate or reduce those risk; and
   5. the costs of eliminated or reducing those risks.
6. Bisinella said this means that where there was a low risk that can be relatively easily eliminated at relatively low cost, that risk must be eliminated because that is what the regime is calling to occur. For example, there might be competing plant and equipment: some plant / equipment might have higher risk, albeit both relatively low risk. That is, there might be comparison of two types of plant or equipment, that fall within performance standards of the EU Framework, but one produces a lower impact and risk of harm than the another. The GED is requiring a call to be made about which plant / equipment to choose, and requiring a consideration based on the factors in section 6(2) of the EP Act 2017. These are all factors relevant as to whether or not the duty under the GED is discharged.
7. Bisinella submits that when considering the approved Development Licence and the assessment conducted by the EPA, as set out in the Assessment Report, a great degree has been placed on the EU Framework, to address the performance standards and how the discharge of the GED is met. However, Bisinella submits that the GED requires minimisation of risk - which could be elimination of risk - and a project that complies with EU Framework might nevertheless require further reduction of risk.
8. Bisinella referred to correspondence where the EPA and PHI are discussing potential licence conditions and PHI objects that the lower end of the BAT-AEL ranges under all other operating conditions is beyond what is reasonably practicable for the viability of the WtE facility.[147] Bisinella submits that, this may be so, but the GED requires consideration of those matters now and not a deferral of them into the future.
9. Bisinella says that the standards under the EU Framework as at 2019 (expressed as a range for some parameters) which is at the centre of the assessment made by the EPA, does not engage with the GED. Instead, the GED imposes an additional requirement that if you can eliminate or reduce harm, you should do so. It demands that analysis based on the selection of plant and equipment that is actually proposed.
10. Bisinella says that what this Development Licence approval does is put this debate forward into the future, and it leaves this up to the design contractors. This leaves the evaluation of which plant and equipment to use and how much to minimise, until the detailed design stage. The assessment has been done on a conceptual basis and because EPA cannot assess it definitively, they have opted for a range, because that is what the 2019 BATC and 2019 BREF gives them.
11. And so, Bisinella submits that what the EPA has really done here, is defer the evaluative process contemplated under section 6 of the EP Act 2017 because it has not had regard to the actual plant and equipment proposed to be constructed, and the obvious consequences that flow, cumulatively and interconnected, from that actual proposal.

How the EU framework is not the same as the EP Act 2017

1. Bisinella says that the tests under the EU Framework and the EP Act 2017 framework are qualitatively different: there is a difference between saying 'the techniques are practicably suitable for reducing emissions' (EU Framework), and saying that 'the techniques reduce risk of harm to the environment so far as reasonably practicable' (EP Act 2017).
2. Bisinella says that importantly, there is a real difference between how these clauses operate and the GED, that is:
   1. the 'practical suitability of the techniques' is directed to achieving emission levels. The emissions limit values are set to prevent and reduce emissions. Once prevention cannot be achieved as a possibility, clause 10 and the 2010 EC IED framework as a whole, does not require anything more in the way of reduction than meeting BAT air emission levels ('AEL') whether they apply or comply using best practice where they do not;
   2. by contrast, the GED requires consideration of emissions and whether or not emissions are reduced 'so far as reasonably practicable'.
3. Bisinella submits that this is where the error has been made by the EPA because when reading 'the fine print', the EU Framework is not 'comparable and consistent' at all with the EP Act 2017 framework because the EU framework goes only part of the way, but not the whole way, of the GED. The GED, quite independently of what might be regarded as guideline emission levels or which might be called 'best practice', calls for minimisation of emission levels, beyond best practice, where that is 'reasonably practicable'.
4. This was said to be supported by:
   1. the definition of 'best' in Article 10 means 'most effective in high general level of protection of the environment as a whole' (but Bisinella says this is not the same as 'reducing so far as reasonably practicable'); and
   2. the BATT themselves do not talk about reducing emissions 'so far as reasonably practicable', which Bisinella says is what the GED requires. For example:
      1. for BAT 27 (and BAT 28), and under the heading 1.5.2.2 'Emissions of HCI, HF, and SO2' provides 'BAT: in order to reduce channelled emissions of HCI, HF and SO2 to air from the incineration of waste, BAT is to use one or a combination of the techniques given below'. This, Bisinella says, proves that the words do not say 'use one or more techniques to reduce emissions so far as reasonably practicable';
      2. further, there is nothing in BAT 27 or BAT 28 which makes reaching the lower end of the range a requirement, that is, 'so far as reasonably practicable', which is the content of the EP Act 2017.
5. In summary, Bisinella submits that the EU Framework contemplates where one cannot prevent impacts, but can reduce them, it requires reduction within a range. This means a proposal assessed under this framework would be compliant with the EU Framework and best practice under the 2010 EC IED, 2019 BREF and 2019 BATC even though it might be reasonably practicable to further reduce impacts.
6. Bisinella submits that the qualitative difference between the two regimes is that the Victorian system requires reduction of impacts 'so far as reasonably practicable' compared to the EU framework which requires reduction of emissions within specified ranges even though it might be reasonably practicable to further reduce emissions.

1. To illustrate the point that the EPA misdirected itself, Bisinella pointed to the new 2024 IED, approved in April 2024, to underscore how the 2010 EC IED and 2019 BREF worked when it was operative in Europe.
2. Bisinella said that Article 29 of the 2024 IED makes clear that the previous regime (that is, the 2010 EC IED) did not impose an obligation to strive for the lowest, or reduction 'so far as reasonably practicable'; instead, it set a band or a range.
3. Bisinella says the new 2024 IED is akin to the GED that exists in Victoria when considering the new wording in Article 15 (emission limit values, environmental limit values, equivalent parameter and technical measures) which requires the feasibility of meeting the strictest end of the BAT-AEL range and demonstrating the best overall performance that the installation can achieve by applying BAT as described in BATC, having regard to possible cross-media effects.

How the EPA misdirected itself and fell into error - using EU framework as a surrogate for GED

1. Bisinella made oral submissions that 'the EPA has embarrassingly embraced a decision-making framework which is less sophisticated than its own' because it says 'there can be no doubt that the EPA has used the 2010 EC IED and BATC as a surrogate and proxy for the GED in a way which is considered unlawful.'
2. Bisinella says this is supported by paragraphs 611 and 615 of the Assessment Report which provide:

[611] Under section 69(3)( e) of the EP Act, EPA must take BATT into account. BATT can be defined as techniques and technologies with the lowest impacts on the environment without compromising the economic health of the (industrial) enterprises concerned (EPA, 2022c) (EPA, 2021a). > > ... > > [615] EPA's assessment of the application against the EU framework is presented in Appendix F: BATT assessment. The standards specified in the BATC are considered critical performance benchmarks for the detailed design phase of the development either as proposed in the application or as prescribed by condition. As the BATC 2019 recommendations are intended as references for setting approval conditions, the assessment also includes an alignment of EPA conditions with the BATC.

3. Bisinella points to Appendix F in the Assessment Report,[148] and Table 42 where BAT is to use of one or a combination of certain techniques specified. Column 2 explains the Application proposes measures to manage emissions to air (refer to section 12, section 4.2.6 Appendix D, Air Quality Impact Assessment, and RFI response dated 10 November 2022) proposing the installation of or utilisation of one or two (c) dry or semi-dry absorbent reactor system. Column 2 sets out the EPA's assessment which is 'EPA is satisfied that the proposed control measures are consistent with the techniques for reducing emissions of HCI, HF, SO2, in BAT 27 and the conditions are recorded including 4(f).'
   1. Bisinella submits that it is clear that the Assessment Report said what is described:
      1. must be capable of operating within the BAT-AEL ranges for new plants contained in BAT 25, Bat 27, BAT 28, Bat 29 and BAT 30 and BAT 31 of the 2019 BATC; and
      2. must be capable of meeting the lower end of the BAT-AEL ranges for new plant contained in BAT- 25, BAT 27, BAT 28, BAT 29, BAT 30 and BAT 31 of BATC during commissioning and under all other operating conditions.

1. However, the second limb above did not make it into the Development Licence conditions (noting the correspondence between the EPA and PHI on this topic), and so Bisinella says this is a live issue for the merits hearing. But Bisinella submits that it is telling that what the EPA did was embrace ranges rather than the test under the GED.
2. Bisinella submits that when going through all the component parts and comparing what the EPA did in the context of 2019 BATC, which it embraced wholeheartedly in the Development Licence conditions, the EPA did something that is inconsistent with the GED - they left out the part that is 'to reduce so far as is reasonably practicable'.

A consequence of the misdirection / error - section 69(4) of the EP Act 2017 (a risk that is an unacceptable risk of harm be refused)

1. In reply to the submission made by PHI that Bisinella's grounds only made reference to section 69(3) and not section 69(4) of the EP Act 2017 (the latter compelling refusal of an application when there is an unacceptable risk), Bisinella submits that an unacceptable risk of harm in this context, must be a risk that has not been reduced so far as reasonably practicable, and on EPA's assessment, not been conducted.
2. Thus, the inference being that the EPA was compelled to refuse the Application.

1. In oral reply submissions, Bisinella submits that the Application here cannot be fairly compared to the one in Matuschka[149] and nor can that decision be called into question in this case. This was because, leaving aside that a different statutory regime applied in Matuschka, being an application for a work authority under the former EP Act 1970, the detailed nature of the application there was a complete answer to the submissions advanced by the Port Authority in that case.
2. However, Bisinella says that is not the case here because the concept design here is to leave all of the detail of what is actually proposed to a later stage, and this is impermissible.
3. With respect to the Matuschka decision, Bisinella sought to compare the activity plan in this proceeding and the lack of any linking of conditions to that drawing, and even if that could be proven, the activity plan is not set in stone because there are a series of reports required before construction can commence.
4. Bisinella said in oral submissions that the activity plan here is effectively a 'cartoon' compared to the one in Matuschka which was more like 'War and Peace' as the latter comprised 39 pages of drawings which were dimensioned and the works proposed were specified, and the conditions of the actual works under conditions were tethered to the assessment. In addition:
   1. the condition sets out what is approved and where further information is required;
   2. Appendix D contains the options study and concept design and arrives at a design having weighed all the options; and
   3. multiple configurations of the operations are not contemplated.

Section 44 of the EP Act 2017 and plant and equipment

1. Further in reply, Bisinella submits that much was said by PHI and the EPA that the EPA has discretion to determine how much information it requires, but the discretion is not good enough to change the fundamental requirements of the EP Act 2017.
2. In this regard, Bisinella submits that section 44(1) of the EP Act 2017 provides:

1. Development licences required for development activities

(1) A person must not engage in one or more of the following activities except as authorised by a development licence in respect of the activity - > > > a) the construction or installation of plant or equipment for a prescribed development activity; > > > (b) the development of processes or systems for a prescribed development activity; > > > > (c) the modification, other than general maintenance, of plant, equipment, processes or systems for a prescribed development activity or of the operation of a prescribed development activity - > > > > > (i) if the modification creates a risk of material harm to human health or the environment from pollution or waste; or > > > > > > (ii) in prescribed circumstances. > > Penalty: In the case of a natural person, 2000 penalty units; > > In the case of a body corporate, 10 000 penalty units

3. Bisinella submits that this means it is the construction and installation of the plant and equipment that requires permission, if that plant and equipment is directed toward a prescribed development activity. This means that it is not an offence to construct plant and equipment that is not for a prescribed development activity. Permission is only required if the construction or installation of plant and equipment is directed to that purpose.
4. Bisinella submits that this is made good because there are different types of activities in limbs (b) and (c) of section 44(1) that are not the construction or installation of plant and equipment. That is, there are development processes and the modification, other than maintenance all directed to the prescribed development activity.
5. In response to PHI's submission, Bisinella said that the explanatory memorandum of the EP Act 2017 does not assist in the task of statutory interpretation and under the former EP Act 1970, the definition of 'premises' was very broad and inclusive.
6. Bisinella submits that the EP Act 2017 now states that there is a prescribed development activity and it does not say that permission is not needed for the plant and equipment. Rather, it draws a distinction between approving the premises for conducting that activity, and the premises itself. It is a permission, no different, and the Explanatory Memorandum to the EP Act 2017 does not alter the construction of the words.
7. Bisinella submits that it would be an odd thing for the EP Act 2017 not to require permission for the specific plant and equipment that is proposed, given what the Act is seeking to regulate.
8. Further, Bisinella submits that even the EU Framework, which deals with permits and requirements for permits, in no way suggests that a permit can be applied for without specifying the plant and equipment proposed because:
   1. Article 4 relates to the obligation to include a description to hold a permit;
   2. Article 12 requires applications for permits to include a description of the proposed technology and other techniques for preventing, or, where this is not possible, reducing emissions from the installation, and the main alternatives to the proposed technology, techniques and measures studied by the applicant in outline.[150]
9. Thus, Bisinella says that even under the EU Framework, this calls for the actual technology that formed part of the application and not a deferral. The suggestion that the Victorian legislative framework would accept less than that, when there is the GED, is odd.

1. PHI submits that Bisinella says that the questions in dispute are matters of statutory construction because Bisinella's grounds are all based on the same premise that the approach taken by the EPA was unlawful.
2. PHI says that it is important to understand the particular way Bisinella approaches the argument.

1. PHI submits that the context is important because:
   1. the Application made explicit reference to the upcoming legislative change, including identifying that the GED constituted the cornerstone of that regime and that a risk-based assessment was called for in respect of applications of this type;[151]
   2. the application was structured so as to include an analysis of the key risks of the proposal, to identify international standards that clearly defined best practice in respect of design and operation, and to include analysis by technical specialists in respect of those activities that would pose a risk to human health and the environment;[152]
   3. PHI is an Australian private company located in Melbourne, established in 2017 specifically for the development of the proposal, and that the company directors have extensive experience in international, large-scale engineering and industrial projects;[153]
   4. PHI is working with a leading design company, Jiangsu Power Design Institute, to provide technical and design services for the proposal, and that they bring considerable WtE project development experience having worked with numerous large WtE technology suppliers and project developers on more than 100 WtE projects worldwide;[154]
   5. the proposal would implement the Victorian Government policy promoting a circular economy - Recycling Victoria - A New Economy (DELWP, 2020) - which promotes WtE technology forming part of Victoria's waste response infrastructure (subject to it, amongst other things, demonstrating that it implements best-practice environmental protection requirements);[155]
   6. the proposal was made in respect of the subject land.[156]

Common ground - a conceptual design is not unlawful per se

1. PHI submits that the starting point for the Tribunal when it comes to determine statutory construction is that the parties agree that the approach undertaken by the EPA was not unlawful per se. PHI does not understand Bisinella to be saying that a conceptual design is unlawful per se.
2. Instead, PHI understands Bisinella's premise is whether the concept design which informed this application allowed the EPA to discharge its statutory function.
3. PHI submits that when examining the case through that lens, the focus of the Tribunal's examination must be 'did the EPA have enough information before it to discharge its statutory function?' It highlights the need for the Tribunal to conduct a detailed review of the Application and EPA's Assessment of those materials.
4. PHI says that Bisinella took the Tribunal to isolated parts of the Application materials, and isolated parts of the Assessment Report and to some degree, that exercise was incoherent.

1. With respect to the issues before the Tribunal, PHI submits:
   1. first, when one has regard to the Application or Assessment Report, it is important to understand its context within the assessment as a whole. At the outset, PHI stresses that the Tribunal must undertake a careful and methodical review of the Application materials and the way the Assessment was undertaken. This is important because PHI, in its submission, endeavours to ensure how the elements of the proposal informed the EPA's Assessment. In light of the case advanced by Bisinella, it is important for the Tribunal to understand the context;
   2. secondly, by way of framing what is in dispute, is to emphasis the nature of the enquiry. PHI submits that it is important for VCAT to be conscious of its statutory powers under section 436 of the EP Act 2017. Here, we are dealing in original jurisdiction and in assessing the information and adequacy of information before the Tribunal. It is not for the Tribunal to consider if it preferred a different approach, or more material. Rather, PHI says that the question for the Tribunal is: 'did the material before the EPA allow it to discharge its statutory functions?' PHI submits that the Tribunal should not be distracted by thinly viewed merits submissions about the material before the EPA which do not bear on the issues before the Tribunal. The issue before the Tribunal is what amount of information is required to allow the EPA to discharge its functions, including the GED.
2. PHI submits that it was said separately that PHI bears the onus of making good its case, but the EPA needs to explain how it discharged EPA's functions. PHI submits that when reviewing the Application and Assessment Report it is clear how the EPA lawfully discharged its functions, through a detailed and thorough risk based assessment of the proposed activity, that is informed by, and in accordance with, international best practice.
3. PHI submits that a key enquiry that the Tribunal needs make is the adequacy of information before the decision maker. PHI's submissions:
   1. first, introduce terms about how the Application was framed and informed by a 'concept design', noting the information materials are detailed. In this regard, PHI said that Bisinella did not do a complete review in its submission, but there are elements and components of the Application which inform the adequacy of the Application;
   2. second, identify relevant aspects of statutory framework. Bisinella has correctly clarified that it is not said that a 'concept plan' per se could not inform an assessment of this type;
   3. third, in addressing the four grounds relied upon by Bisinella, took the Tribunal through other parts of the materials, focussing on the Application itself. PHI submits that Bisnella's suggestion that the number of pages in the Application or the Assessment Report is not relevant is simply not a correct characterisation. Rather, it is evidence of the thorough consideration of the Application, as well as the risks that are posed by the activity.

Part A - How the Application was framed and informed by a 'concept design' was appropriate

1. PHI explained that at the time the Application was made, the permission was under section 19A of the former EP Act 1970 for a works approval, that is, the permission sought was for the facility itself. PHI submits that the essential difference now required under EP Act 2017 is that the permission sought is for the development activity, as opposed to the permission being for the facility itself.
2. Pursuant to section 474 EP Act 2017, an application for a works approval under the former EP Act 1970 is taken to be an application for development licence.

1. First, PHI referred to the description of the Application:[157]

1. PHI submits that it is enough to express the activity as 'moving grate boiler technology' rather than in a more specified way as Bisinella suggested.
2. Further, PHI submits that it is correct for the Application to include technology not yet employed widely in Victoria but used in other jurisdictions. There are hundreds of WtE facilities in Europe and other parts of the world.
3. PHI says that the technology proposed in the Application is a technology that has clear specifications and employs the best ways to minimise risk of harm to human health and the environment. Further, whilst this type of technology has not yet been widely implemented in Victoria, there are other proposals which have been approved and the technology is proven, well understood and robust.
4. PHI submits that the Application clearly explains its rationale and project benefits, which the EPA recognises has a role to play in the waste hierarchy.[158] The Application provides a detailed description of its component parts and the way it was informed by concept design.
5. Further, PHI submits that it is common ground the term 'concept design' is not defined in the statutory framework and not a term of strict meaning. PHI says that care must be taken in assessing the way and degree the Application is informed by a conceptual design rather than starting at Appendix M of the Application, as Bisinella did in its submissions.
6. PHI submits that Appendix M (the concept report) needs to be read with the specifications contains in Chapter 7 of the Application. This part of the Application was said to contain considerable detail of what is proposed, and indeed, sufficient detail to enable the EPA to assess the project under Part 4 of the EP Act 2017.
7. Further, PHI says that whilst there is recognition that aspects of the design will be refined for procurement, the core elements are identified with precision, more fundamentally with sufficient precision to assess the risk as is called for now under the EP Act 2017.

1. PHI submits the starting point is at 'Part 7 - Project Description' in the Application. PHI says there was almost no reference made to this by Bisinella and this is a very important part of the Application and about how the Application was advanced.
2. PHI submits that it is clear that 'Part 7 - Project Description' of the Application makes a distinction between the concept design, technology and project implementation processes for the proposal. Further, PHI says it is relevant that the technological basis of the Application is informed by industry participants of considerable expertise to deliver this type of proposal.
3. PHI explained that the Application makes clear that some of the performance parameters may change and the extent of change contemplated is 'slight'.[159] But the specific description of components are provided and one should bear in mind the Development Licence conditions required include DL_G02 and DL_G03 for the specific components. That is, PHI submits the 'thing' for which permission was granted is the same as the 'thing' for which permission was sought.
4. Further, PHI says the site layout plan forms part of the Development Licence itself and sets the general expectations regarding site location, plant orientation, road access and existing site interfaces. The Application itself uses language which explains how the site layout plan will evolve.[160]
5. Relevantly, Figure 7.1 contains the conceptual site layout which is extracted below:

1. PHI submits that chapter 7.4 ('Detailed process description of EfW plant') of the Application is the part of the Application which outlines with precision the processes and components of the technology to be used and components as part of the proposal. PHI submits this is important because it gives the specification of the proposal and allowed the EPA to assess the Application in the discharge of its statutory function. PHI criticised Bisinella who it said did not take the Tribunal to this section in its submissions.
2. In this regard, PHI submits that chapter 7.4.1 of the Application describes how capacity to generate electricity arises based on a nominal waste feed stock of 400,000 tonnes. The average calorific waste value of 9.5 MJ/Kg is available from publicly available information and it constitutes why a permission of this type should allow a degree of flexibility for optimisation and refinement of design through detailed design. And so, PHI says it was incorrect for Bisinella to say 'because it is not known with precision the calorific value given it will change over time' that somehow the EPA will not discharge its statutory function.
3. There is a detailed explanation about combustion technology in chapter 7.4.1 together with the description proposed with a schematic diagram at Figure 7.2:

1. To make good the proposition that the permission is granted for a development activity that contains a considerable degree of specification, PHI referred to the detailed description provided in the Application concerning the waste delivery components, namely:
   1. chapter 7.4.2 - waste reception, tipping hall and storage bunker, including:
      1. Site access and waste reception (chapter 7.4.2.2);
      2. Weighbridges (chapter 7.4.2.3);
      3. Waste tipping hall (chapter 7.4.2.4)
      4. Waste bunker (chapter 7.4.2.5)
      5. Waste feeding cranes (chapter 7.4.2.6)
      6. Waste feeding hopper (chapter 7.4.2.7)
2. PHI submits there are very clear specifications of the elements that will be delivered in the facility set out in the Application. It was said that one of the measures for best practice is to control odour and dust emissions.
3. Further, PHI says that there is specification of an indicative site layout which is consistent with general expectations, but subject to update from detailed design process. For example, there are references to:
   1. the key plant parameters at chapter 7.2 which indicates that there will be a 'slight change through detailed design';
   2. the plant layout, which forms part of the licence, contains the indication it 'will be updated and refined during detailed design';
   3. detailed description of each of components of the facility itself at chapter 7.4.2 and each of components of the facility referred to the site layout plan that forms part of the licence.

1. PHI submits that a description of the moving combustion grate component of the plant is provided at chapter 7.4.3 of the Application with sufficient specificity to allow for an assessment of the risk, including Figure 7.7:[161]

1. PHI submits that this is a good example why it is not necessary to identify the specific types of moving grate to be used (i.e. the actual brand name). PHI submit there is no need to specify the particular make or model of that component of the project. Instead, PHI submits that the Application describes its operation with sufficient precision to allow for an understanding of how it will operate and in turn, more importantly the nature of the risk to be generated by this type of activity.

1. PHI points to the description of the proposed waste feedstock sources and composition (chapter 7.4.4) which contains a recognition that the relevant waste acceptance criteria will align with Victorian waste regulations and reflect the requirements of the grate combustion and suppliers agreement. PHI submits these are all aspects of administrative processes identified within best practice.
2. Further, PHI says chapter 9.5 adopted for purposes of the Assessment is based on publicly available information and a recognition that composition of waste may change over time and a recognition that the technology to be implemented needs to be flexible to and effective for a wide range of varying waste compositions.

1. PHI also referred to the furnace and heat recovery boiler as an important aspect of the plant because there is a high potential for boiler tube slagging (otherwise known as ash build up) and corrosion. An extract from the Application states:[162]

1. PHI submits that again, based on the best information that is presently available, the Application concludes that the type of facility proposed is the type of facility which can cater for the type of waste according to the detailed waste acceptance criteria will need to be formulated. It says that a clear (and highly technical) explanation of how the facility will deal with risk of pollutants to air is provided including addressing different types of pollutants.[163]
2. PHI submits that there is also the expectation and recognition that these specifications may be refined during the detailed design. PHI says this is not unsurprising or unusual. It is common place for aspects of a proposal to be refined as is contemplated here, to achieve optimisation.[164]
3. PHI submits that when considering whether the EPA had adequate information, the nature of the information is complex. But what is specified in the Application are those things that bear upon risk and the capacity of the facility to deal with the risks.
4. PHI says that the Application identifies with precision, aspects of the proposal that are designed to mitigate the risks of facility of this type, by specifying components, operation temperature, administrative controls, including waste characterisation and acceptance and the like. The specification of these things in the Application allowed the EPA to assess the risk, and allowed assessment in the precise way contemplated by EP Act 2017.

1. With respect to the flue gas emission control systems, PHI submits that chapter 7.4.6 of the Application gives recognition that emissions from the stack are the most regulated. PHI points to Table 7.2 which contains typical flue gas emissions / pollutants and identification of BAT to treat those emissions.[165] PHI says that an examination of the description of the flue gas emission control system shows the commitment to implement a particular type of mitigation.
2. PHI says that choices have been made in this Application and specifications have been provided in the combination of techniques to be used in the plant to reduce the risks posed by emissions to air. By having made those choices and specifications, this allowed the EPA to undertake an assessment of risk, including assessment of GED in precisely the way the EP Act 2017 contemplates. For example:
   1. the project will comply with the requirements of Victoria EPA Energy from Waste Guideline, Publication 1559, December 2013, and along with emission level compliance, this project will also target emission levels below that as specified in the 2019 EC BREF for Waste Incineration;
   2. the project will comply with the requirements of the Victorian Government SEPP (Air Quality Management) no. S 240, December 2001, (SEPP AQM), Schedule E (Stationary Source Emissions - Air Quality Management Regions). This introduces some additional regulated pollutants and more stringent pollutants levels than those required under the 2010 EC IED;
   3. there is a recognition that very few reference plants were required to achieve 2019 EC BREF because those plants at that time did not comply with 2019 BREF, but this proposal will achieve 2019 BREF limits;
   4. there will be flue gas treatment parameters and processes implemented within the project including:
      1. the implementation of an advanced SNCR system (refer to chapter 7.4.6.2.1). This shows decisions have been made to address emissions of NOx to air;
      2. use of another technique in the flue gas recirculation ('FGR') system (chapter 7.4.6.2.2);
      3. use of a dry / semi dry (or a combination of the two) absorbent system (chapter 7.4.6.2.3);
      4. use of a Circulating Fluidised Bed ('CFB') reactor design and loop reactor design with reagent recirculation to address how hydrated lime reacts with the risk of certain acid gases in the flue gas (chapters 7.4.6.2.4 and 7.4.6.2.5);
      5. use of bag filters to capture pollutants below 2019 EC BREF limits (chapter 7.4.6.2.6);
      6. an explanation of the degree of specification regarding choice of treatment reagents (chapter 7.4.6.2.7) and CEMS (chapter 7.4.6.2.8) that identifies types of techniques to be implemented into the proposal to reduce the risk of emissions to air. Whilst it is correct these are by reference to 2019 EC BREF and 2010 EC IED, the Application explains that the formulation of those standards are consistent with reducing risk and why it is was open to EPA to have regard to those techniques and to use as a basis to satisfy itself as to the measures for complying with GED.

1. PHI points to those parts of the Application which explain the:
   1. Steam turbine and generator (chapter 7.4.7);
   2. Condensate and feedwater systems (chapter 7.4.8);
   3. Cooling water system (chapter 7.4.9); and
   4. Balance of plant (chapter 7.4.10).

1. PHI made submissions about reference plants using HZI CFB Technology or CNIM-LAB loop reactor with recirculation technology. It was said that for this Application:
   1. PHI seeks to implement and specify measures to allow this plant to achieve 2019 EC BREF limits;
   2. techniques have not been included from reference plants which are not subject to the same regulatory environmental limits that achieve more stringent controls.

1. PHI points to additional commentary in the Application regarding:
   1. Energy efficiency (chapter 7.6);
   2. Construction (chapter 7.7);
   3. Commissioning (chapter 7.8) - including:
      1. cold commissioning (before introduction of fuel); and
      2. hot commissioning (which contains a detailed description of various phases for the plant including: refractory dry out and boiler boil-out; steam blowing; first waste firing and overall steam system testing; operability and throughput tests trial operation testing period; and availability test after taking over); and
   4. Operation (chapter 7.9).

1. Chapter 8 of the Application contains the description of anticipated waste feedstock for the proposal which contains a number of assumptions.

1. PHI submits that the description of the proposal was supplemented by Appendix M of the Application which contains a memorandum prepared by Jacobs dated 15 April 2020 with the subject 'concept design basis report'.

1. PHI says Appendix M contains the 'concept design basis report' and that this report:
   1. described the subject land (at part 2);
   2. identified various assumptions that informed the preparation of the concept design (at part 3);
   3. set out consultation undertaken with third parties and stakeholders in the preparation of the design (part 4);
   4. described the design basis of the concept design (part 5), in respect of:
      1. site conditions (part 5.1);
      2. design parameters (part 5.2);
      3. key plant outputs (part 5.3);
   5. contained the conceptual site layout (at Appendix A); and
   6. contained various technical specifications concerning heat balance diagrams (at Appendix B), climatic site conditions (at Appendix C), a single line diagram (at Appendix D), and water balance (at Appendix E).

1. PHI referred to the assumptions made in that Jacobs report in Appendix M including the following:

1. PHI submits that it is true that the 2109 EC BREF has informed the EPA's consideration of the Application because it submits that the two systems operate in a similar way and generate similar results as set out in the further assumptions below:

Appendix M should be read in context of the Application as a whole

1. PHI submits that, unlike Bisinella suggests, the starting point for consideration is not Appendix M.
2. Rather, PHI says that the Appendix M needs to be understood in the broader Application and that only some design parameters are subject to change and the extent of change might only be 'slight'.
3. PHI refers to the same layout drawing that forms part of Chapter 7 and the Development Licence and various heat balance diagrams which explain the processes proposed at the facility.
4. PHI says that it is simply incorrect to go straight to Appendix M; instead the concept design report needs to be considered in the context of a whole Application. When doing so, PHI says that there is a degree of specification that allows for an assessment of risk.
5. PHI submits that Bisinella accepts that every design is conceptual to some degree and it is reasonable that some aspects will be refined as part of the detailed design. When properly understood, PHI submits that this is a design formulated with adequate specificity with GED, on the understanding there will be an ability to update through detailed design to respond to the detailed task needed.
6. PHI says that, as is often recognised under environment protection regulation, the capacity for there to be flexibility incorporated in a proposal of this type is important.
7. Further, PHI submits that the GED is an ongoing obligation, and the need for a facility to be continually refined is part of the statutory regime.
8. Also, PHI says there is no evidence before the Tribunal to suggest the refinement resolution contemplated by this approval would materially affect the risk profiles of this proposal which has been comprehensively assessed by EPA and which has responded to the requirements of EP Act 2017.
9. PHI referred to the chapters in the whole Application including:
   1. Introduction (chapter 1);
   2. Project site (chapter 2);
   3. Regulatory approvals (chapter 3);
   4. Environmental best practice (chapter 4);
   5. Community and stakeholder engagement (chapter 5);
   6. Risk assessment (chapter 6);
   7. Project description (chapter 7);
   8. Waste feedstock (chapter 8);
   9. Waste outputs (chapter 9);
   10. Water use and surface water management (chapter 10);
   11. Energy use and greenhouse gas emissions (chapter 11);
   12. Air quality (chapter 12);
   13. Noise (chapter 13);
   14. Health (chapter 14);
   15. Other environmental and social considerations (chapter 15);
   16. Environmental management (chapter 16).
   17. Appendices including:
       1. Appendix A - general information;
       2. Appendix B - supporting information;
       3. Appendix C - greenhouse gas assessment - additional information;
       4. Appendix D - air quality impact assessment;
       5. Appendix E - noise assessment report;
       6. Appendix F - health impact assessment;
       7. Appendix G - cultural heritage due diligence assessment;
       8. Appendix H - qualified desktop flora and fauna assessment;
       9. Appendix I - prelimianry (desktop) land and groundwater contamination assessment;
       10. Appendix J - land and groundwater contamination - site investigation report;
       11. Appendix K - traffic impact assessment;
       12. Appendix L - landscape and visual assessment;
       13. Appendix M - concept design basis report;
       14. Appendix N - reference plant report.
10. PHI submits that, when considering the Application, it cannot simply be through a myopic view of Appendix M. The entire Application needs to be considered to understand how the Application has addressed the risk of the proposal.
11. Further, PHI submits that:
    1. the assessment of environmental effects of the proposal documented within the Application was informed by an assessment of environmental best practice (chapter 4), the outcomes of community consultation (chapter 5), a detailed risk assessment (chapter 6), and by detailed assessment of various aspects of environmental performance, including (but not limited to):
       1. Energy use and greenhouse gas emissions (chapter 11, Appendix C);
       2. Air quality (chapter 12, Appendix D);
       3. Noise (chapter 13, Appendix E)); and
       4. Health (chapter 14, Appendix F).
12. Between May 2021 and July 2023, PHI says that six tranches of further information were requested by EPA, and provided by PHI, and three tranches of public consultation and submissions occurred. Amongst other things, the further information requests included:
    1. the request that an updated noise impact assessment be prepared in accordance with EPA Publication 1826/4: Noise limit and assessment protocol for the control of noise from commercial, industrial and trade premises and entertainment venues (the 'Noise Protocol'); and
    2. the request for a direct summary of measures proposed to comply with the GED with regard to air emissions and odour.
13. PHI responded to these requests by submission of:
    1. 'Prospect Hill Energy from Waste Facility - Noise Impact Assessment, Revision No: 2' (dated 24 August 2022); and
    2. Memorandum: EPA Victoria - Development Licence Application: Request for further information pursuant to s 50(3) of the Environment Protection Act 2017' (dated 10 November 2022).

Was there a suffcient level of specificity to enable the EPA to assess the approval in accordance with its statutory obligations?

1. PHI submits that the material that was before the EPA was material which allowed a detailed assessment of risk posed by the relevant activity and - to adopt Bisniella's test - the degree of specification and components, measures, choices made in respect of mitigation did allow the EPA to undertake a detailed assesment of risks of activity, including measures proposed to comply with the GED.
2. Further, PHI submits that the conditions contained in the Development Licence which specified the processes, applicable performance measures and various means of verifications to confirm to the Application, were sufficient to ensure the approval granted was an approval which aligns wholly with the permission sought.

1. PHI submits that it is important to read the Application as a whole, noting that Appendix M is just one component of the whole Application.
2. PHI says that Bisinella concedes that a concept design of itself is not fatal to the application process. The question is whether this particular application had a sufficient level of specificity to enable the EPA to assess the approval in accordance with its statutory obligations.
3. PHI submits that there was a sufficient level of detail of the proposal, including various descriptions, specifications and components. Choices had been made by PHI which in turn allowed and empowered the EPA to assess the Application in accordance with the statutory scheme, including assessing whether to minimise, as far as reasonably practicable, the risk of harm as required by the GED.

Part B - The statutory regime and why a 'concept design' could form the basis of the Application

1. PHI submits that it has no issue with the way in which Bisinella has put the principles of statutory construction in its written submissions. Further, there is no quarrel that:
   1. an important purpose of the EP Act 2017 is to protect human health and the environment from pollution and waste;
   2. a decision about whether or not to grant a development licence requires consideration of the protection of human health and the environment;
   3. there is a tiered approach to permissions in the EP Act 2017, with development licences relating to more complex, higher-risk activities than permits or registrations;
   4. the GED is the cornerstone of the EP Act 2017;
   5. the GED is a mandatory relevant consideration in s 69(3) of the EP Act 2017;
   6. section 434 has a ground which allows an application for review, where conducting the activity in accordance with the licence would lead to a contravention of the GED.

1. PHI submits that the aspects of the EP Act 2017 which are relevant in this proceeding are:

(a) a defining feature of new approval regime established under Part 4 is that permission required is for a specified activity (refer to section 44 of the EP Act 2017);

(b) the permission that is required is the activity under section 44(a) the 'construction or installation of plant or equipment' of 'prescribed development activity'; in this case being the WtE facility contained in regulations;

(c) it is no longer that the relevant approval is required for the plant and equipment itself. The permission is for the 'activity' as it concerns the prescribed development activity. To the extent Bisinella submits that it is for the plant and equipment itself, PHI says this is not correct. This is made clear in the explanatory memorandum for the Environment Protection Amendment Bill 2018 which expressly states:

1. PHI submits that there is recognition in the permissions framework that the emphasis is on the management of risk which complements the GED. By providing additional guidance, a more flexible and adaptive approach to regulation is envisaged. That is, evidence and risk based decision making is what is intended under the EP Act 2017.
2. PHI submits that a key question is whether the EPA has been able to assess the risks as it is required to assess risk, not just compliance, as the explanatory memorandum and Part 4.4 (Licences), and in particular section 69(3)(a) under the EP Act 2017, makes clear.

Relationship between section 69(3)(a) and section 69(4) EP Act 2017

1. PHI submits that the GED calls for the assessment of risk and the minimisation of the risk of harm, so far as reasonably practicable.
2. Section 69(3)(a) of the EP Act 2017 requires that the EPA must consider as one of a range of measures, any measures the applicant has taken into account to comply with the GED as a mandatory relevant consideration. The framework is 'risk based' because section 69(4) of the EP Act 2017 provides that there is a bar on the power of the EPA (and the Tribunal on review) if the activity poses an unacceptable risk to human health or the environment.
3. PHI observes that Bisinella conflated unacceptable risks with the GED. However, PHI submits that section 69 of the EP Act 2017 deals with these concepts separately - that is section 69(3)(a) is a mandatory relevant consideration whereas under section 69(4)(a) there is a bar on the exercise of a power where there is unacceptable risk to human health or the environment.
4. Whilst there are repeated calls by Bisinella to define the 'activity', PHI submits that not only was there an estimate of emissions from the facility, but what the EPA has done is characterise the risk and turn its mind to section 69(3)(a) and (4) of the EP Act 2017, that is, one is risk based (section 69(3)(a)) and one is evidence based (section 69(4)).

Actions or decisions under this Act should be based on the best available evidence in the circumstances that is relevant and reliable.

1. PHI submit that 'the best available evidence that is relevant and reliable' is the sum consequence in the way EPA had regard to the EU regime in the assessment of risk under section 69 of the EP Act 2017.
2. Given that the EPA has referred to EU guidance as International best practice, PHI says that Bisinella's concern should be understood in the context of Principle 19. Further, Principle 19 is also relevant to the GED and the component of the state of knowledge as it concerns measures that reduce risk under section 6(2)(c) of the EP Act 2017.
3. PHI submits that it is very relevant to applications of this type in that the EU guidance documents are highly relevant to establishing harms or risks of harm and any ways of eliminating those risks. That is, these concepts are highly relevant to the exercise of discretion.

Form and content of applications - broad discretion

1. PHI submits there is another aspect regarding Part 4 of EP Act 2017 which creates consideration of discretion in assessing various applications of a development licence. That is, there is discretion regarding the form and content of applications under section 50 of the EP Act 2017 (form and content of applications).
2. PHI submits that Bisinella places considerable emphasis on section 50(1)(d) (which requires an application to 'specify' the activity in relation to which the permission is sought) and that it contends that 'the word specify is significant'[166], in that it requires that an application must clearly articulate - in the form of detailed plans and specifications - the development activity for which permission is sought.
3. PHI submits that, in this case, the Application was deemed to be an application for a development licence by operation of section 474, and so did not need to comply strictly with section 50 of the EP Act 2017. This notwithstanding, when read in the context of the balance of Part 4 of the EP Act and Schedule 1 of the EP Regulations, the requirement in section 50(1)(d) that the 'activity' be specified in the Application, calls for the specification of the activity by reference to the activities defined in that legislative scheme. Relevantly, the activity is the 'construction or installation of plant or equipment', and 'the development of processes or systems', in each case, 'for a prescribed development activity' (being 'AO8 waste to energy').
4. Beyond the specification of this matter, PHI submits that section 50(1)(d) cannot be taken to require that certain plans or design specifications be submitted or fixed as part of any given application. Whilst such matters could have been prescribed in section 50(1)(e), this is not the case. But even if section 50(1)(d) was construed in this way, PHI submits that the detailed description of the proposed activity contained in the Application would satisfy that requirement.
5. Further section 50(1)(d) must be seen in light of section 44 of the EP Act 2017 (prescribed development activities).
6. Former section 50(3) of the EP Act 2017 which was in place at the time the EPA made requests for further information provides:[167]

1. PHI noted that former section 50(3) was replaced with section 51A where an authority or council may require additional information:

The Authority or council (as the case requires) may require an applicant to provide the Authority or council with any information relating to a relevant permission application that the Authority or council considers necessary.

1. PHI submits that there is a very broad power on the part of the EPA to request and require information that it needs to discharge its function. It will vary depending on the type of application and so that EPA might vary requests for information on different applications. The discretion is not limited to calls for requests for further information.
2. PHI says there is also a broad power under section 54 of the EP Act 2017 with respect to permission conditions including in a permission condition for:
   1. specifying the measures the permission holder must take to comply with the general environmental duty when engaging in the permission activity (section 54(2)(a));
   2. relating to the commissioning of plant or equipment, including the setting of performance standards for the commissioning of plant or equipment (section 54(2)(d));
   3. relating to the monitoring, testing or analysis of any impacts of engaging in the permission activity (section 54(2)( e)); and
   4. requiring the permission holder to provide monitoring data, information or performance reports to the Authority or council, the public or both (section 54(2)(f)).
3. PHI says that the scope for the EPA to formulate a permission is a very broad power as contained in section 54 of the EP Act 2017 and there is discretion as to how the EPA is to undertake assessment of an application.
4. In this regard, PHI submits that section 69(3) of the EP Act 2017 does not prescribe how the EPA takes into account and weighs up the matters it must take into account; it is up to the EPA to do that and the only explicit statutory bar is section 69(4) of the EP Act 2017.
5. PHI submits that this is of some relevance because a broad discretion is consistent with terms of EPA's objectives as framed in the new EP Act 2017. Other aspects about EPA's discretion are:
   1. discretion to create charter of consultation; and
   2. other processes in Part 4.
6. PHI pointed to sections 357 (objective of the Authority) and 358 (functions of the Authority) of the EP Act 2017, in particular sections 358(b), (c) and (d):

1. Given the EPA's explicit functions, PHI submits that it is unsurprising the EPA is constituted with particular expertise in assessing risk and opportunities to eliminate or reduce risk. That being the case, this should give rise to some pause by the Tribunal to consider the nature of the supervisory role, because the EPA is an expert authority, with broad powers where that authority has made requests, has been satisfied and prepared a detailed report that assesses the risk for which the permission is sought.

1. PHI submits that the EP Act 2017 neither includes or precludes a concept design for applications of this type and this is largely agreed between Bisinella, PHI and the parties. That is, all proposals are conceptual to some degree is recognised. So the line of distinction that Bisinella seeks to draw is false.
2. PHI submits there is no confusion as to why a concept design is acceptable and relies on its written submissions that:[168]
   1. the term 'concept design' and 'detailed design' are not defined in the EP Act 2017 or in the EP Regulations;
   2. a 'concept design' is not a fixed term of art. What constitutes a 'concept design' will depend on the facts and circumstances of any give case;
   3. in the present case, the design that informed the assessment is properly characterised as being 'conceptual' because it is anticipated to be the subject of ongoing resolution and refinement throughout the detailed design and procurement phases of the proposal that will follow approval, but that does not mean that the design is hypothetical, abstract, notional, or generic in the sense advanced by Bisinella;
   4. to the contrary, the Application provided a detailed description of the proposed activity;
   5. the fact certain elements of the 'concept design' may be refined and revised over time does not detract from the fact that the degree of specificity contained within the Application allowed the EPA to conduct a rigorous and thorough assessment the proposal pursuant to the terms of the EP Act 2017;
   6. the text, content and purpose of the relevant provisions of Part 4 of the EP Act 2017 allow an application to lawfully be made, and to be assessed, on this basis;
   7. section 44 of the EP Act 2017 makes it clear that the permission required concerns a prescribed development activity; and
   8. section 50 of the EP Act 2017 governs the form and content of applications and it grants power to the EPA to approve the 'form and manner' in which an application need be made, and requires that an application be made in that form and manner; requires the prescribed fee be paid; requires the application specify the type of permission that is sought; requires the application to 'specify' the activity in relation to which the permission is sought'; and requires that the application include any prescribed information.
3. PHI also agrees with EPA's submissions and endorses those submissions.
4. Therefore, PHI submits, instead, that the case advanced by Bisinella is that this conceptual design is insufficient in the information required. Thus, the focus of PHI's submission is on whether the information was sufficient to enable the EPA to discharge its statutory functions.
5. Whereas Bisinella submits that the EPA did not have enough information to complete that task, PHI says the EPA did have sufficient information to assess risk as required under the EP Act 2017.

Part C - PHI's specific response to Bisinella's first and second grounds

Disconnect between Bisinella's grounds and submissions

1. PHI submits that the grounds advanced by Bisinella seem to be directed to there being an unacceptable risk to human health and the environment under section 69(4) of the EP Act 2017, principally with respect to air and noise emissions.
2. PHI submits that it is said by Bisinella there was a bar on the exercise of the EPA's power but this was not because there was a failure to take into account mandatory relevant considerations in section 69(3)(a) of the EPA Act 2017. None of Bisinella's grounds are made with respect to section 69 of the EP Act 2017, let alone to section 69(3).
3. Further, PHI says that the clear focus of Bisinella's submissions is not section 69(4) of the EP Act2017. Thus, there is a disconnect between the grounds and their submissions.
4. PHI submits that Bisinella took the Tribunal to different parts of the EPA's Assessment Report with exception of one part because they did not refer to any parts of report regarding risk of human health.
5. Further, PHI submits that Bisinella only made submissions about section 69(3)(a) of the EP Act 2017 and measures to comply with GED. PHI says that it appears that Bisinella's grounds are framed as a constructive failure on the EPA's part because there can be no doubt that the EPA did, as a matter of fact, address those matters as part of its assessment of the Application. Notwithstanding this, Bisinella alleges the EPA constructively failed to carry out its statutory function, because that function could not have been and was not discharged in light of the way that the Application was framed.
6. PHI submits that Bisinella does not rely on, and it is not said there is a case for Bisnella's application to be framed in this way, that it means the EPA could not have exercised its power. Instead, Bisnella's case is mounted on the critical contentions expressed at paragraph 46 of Bisinella's written outline of submission of 1 July 2024 which provides:

1. PHI says that those contentions need to be considered in the context that the parties agree that a concept design is acceptable provided the material can lead to an assessment. Also, when considering how the EPA assessed these matters (and PHI submits that the EPA explicitly turned its mind in section 69(3) of the EP Act 2017 and, referring to the Assessment Report), the EPA did so based on proper material based on information for the 'thing' for which permission is sought. And so, PHI submits that it is not the role of this Tribunal to consider whether it considered the substance of the Application and called for information. PHI says that it is not the Tribunal's task to impermissibly delve into merits review.
2. Rather, PHI submits that the question for the Tribunal is whether it was open, under the terms of the EP Act 2017, for the EPA to make the determination it did.
3. PHI submits that the EPA acted within the boundary of power and PHI can demonstrate why Bisinella's contention, that the EPA did not assess the Application in accordance with section 69, should be also be rejected.

1. PHI submits that section 69 of the EP Act requires:
   1. the EPA to make a decision within four months of receiving an application which complies with section 50 of the EP Act 2017;
   2. to refer the application in prescribed circumstances; and
   3. section 69(3) sets out the mandatory relevant considerations which the EPA must take into account when considering whether or not to issue a development licence.
2. PHI submits that the EP Act 2017 does not prescribe how to weigh those mandatory relevant considerations. That is a matter left to the EPA, as an expert body. The only limit on the EPA's power is section 69(4) of the EP Act 2017, which requires the EPA to refuse the application if it poses an unacceptable risk of harm to human health or the environment.
3. Section 69(5) of the EP Act 2017 requires that the development licence must specify the date on which the development licence expires.
4. In focussing on the requirements of section 69(3) and (4) of the EP Act 2017, PHI contends that it has been demonstrated that those requirements were satisfied and it was open to the EPA to issue the Development Licence.
5. PHI says that the key matter Bisinella took issue with was the way the EPA considered section 69(3)(a) of the EP Act 2017 and the measures the EPA took to comply with the GED. Bisinella took issue with the EPA's reliance on the EU Guidance documents and the BATT.

1. Regarding the GED, PHI says that to determine what is 'reasonably practicable' calls into question the current state of knowledge concerning the risks and hazards associated with the proposed activities consistent with evidence based decision making.
2. PHI submits that various publications and guidance about the assessment of minimisation of harm can be informed by analysis and guidance issued in respect of discrete industry sectors and other jurisdictions as it concerns other industry sectors.[169]
3. Consistent with section 6(2)(c) of the EP Act 2017, PHI referred to EPA Guidance which states that the application for a development licence should contain an assessment of the available processes and technologies for managing risks for the proposed activities and the applicant must present their state of knowledge of the best available techniques and technologies for conducting the proposed activities. Alternatively, they must state how they are eliminating or otherwise minimising risk of harm from the activity.[170]
4. PHI points to the EPA Publication 1961 February 2022, 'Guideline for Assessing and Minimising Air Pollution in Victoria (for air pollution managers and specialists)', ('GAMAPV') which sets out the steps in controlling air pollution risks.[171] Step 3 relates to 'Implement controls: what measures are suitable and available to eliminate or reduce a risk and provides a section on risk minimisation under the GED.[172] Section 7.1.2 (Risk substitution / engineering controls) provides:[173]

1. PHI submits that there is properly a direct link between an assessment of BATT and a consideration of measures proposed as a means of minimising risk 'as far as reasonably practicable'.
2. With respect to the term 'reasonably practicable' and the relationship with state of knowledge, PHI referred to EPA Publication 1856 (September 2020), 'Reasonably practicable', which requires an applicant to have, and seek out, knowledge about the risks their activity poses to the environment and human health and are required to know how to address them. The knowledge that a duty holder's action will be assessed against includes both:
   1. what they actually know; and
   2. what someone in their circumstances should reasonably know about the risks.
3. Specifically, text in the EPA Publication provides:[174]

1. PHI says that whilst these guidelines cannot operate to change the meaning of the language in the EP Act 2017, they demonstrate how reference to guidelines issued in the European Union about what is the BATT for mitigating risk for this particular type of sector is an entirely valid way of how this proposal was measured for purposes of section 69(3)(a) of the EP Act 2017.

1. Bisnella said the 'vice' evident in the EPA's decision-making is to the extent to which the EPA deferred its decision and relied on EU guidance.
2. In response, PHI submits that:
   1. WtE is not mature in Victoria, but it is in Europe;
   2. the EU has issued EU publications and standards for this sector;
   3. the Assessment Report expressly refers to the published state of knowledge documents including the internationally recognised BAT for WtE in the EU which includes:[175]
      1. 2010 EC IED;
      2. 2019 BREF; and
      3. 2019 BATC.
3. PHI submits that Bisinella only took the Tribunal to one clause in the 2010 EC IED in its main submissions.
4. PHI made submissions about why it was appropriate for the EPA to make the following statement in the Assessment Report below:

1. PHI submits that:
   1. The 2010 EC IED is the main directive and is directed to plants of this type (that is, WtE facilities) and makes provisions for BATs;
   2. Article 3 contains definitions, including relevant definitions of:
      1. 'best available techniques' as follows:

1. 'emissions levels associated with the best available techniques':

1. PHI submits that when the EPA describes these techniques in the 2010 EC IED and what is described with BAT as 'complementary to' the GED, EPA is aligned with principles that are informed with principles of the EP Act 2017 as EPA described it. Where emissions levels are specified in one of these directives, they are the levels associated with the implementation of what has been identified as the BAT to eliminate, or alternatively reduce, the impact of the activity on the risk of harm to human health or the environment.
2. PHI referred to specific parts of the 2010 EC IED including:
   1. Article 4 of the IED and the obligation under the Directive to hold a permit to operate an WtE facility;
   2. Article 5 which provides for the 'granting of a permit' and provides that '... the competent authority shall grant a permit if the installation complies with the requirements of this Directive'; and
   3. Annex VI (Technical provisions relating to waste incineration plants and waste co-incineration plants) and specifically Part 3 (air emission limit values for waste incineration plants).
3. PHI said that those air emission limit values specified in the 2010 EC IED do not give effect to the emission limits in the 2019 BREF.
4. PHI said that Bisinella's submissions had regard to Article 15 (emission limit values, equivalent parameters and technical measures) in referring to paragraph 3 below:

1. PHI said that the submission from Bisinella that was made with respect to sub-clause 3 was to demonstrate that there is a difference between two regulatory regimes. That is the 2010 EC IED contains emissions limits but the emissions limits specified in these directives are fundamentally different to the 'enlightened approach' in the GED under the new EP Act 2017.
2. However, PHI submits that the 2010 EC IED must be reviewed in full to understand that the emissions limits specified in these directives are associated with BATT to eliminate and reduce harm. Thus, Bisinella's submission is misguided or incorrect.

1. PHI referred to the 2019 BREF, a document of over 700 pages and explained the context is that there originally was a BREF adopted by the EU in 2006 and the 2019 BREF version is the review of 2006 BREF, a review which was concluded in 2019.[176]
2. PHI said that in the context of an assessment process under the EP Act 2017 to be informed by Principle 19, here is an assessment of what constitutes the minimisation of risk of harm to human health and the environment informed by the relevant state of knowledge. PHI submits this is an amazing resource because the 2019 BREF concerns an application of this type and contains the very types of measures which should be put in place to eliminate or reduce the risk of harm as far as reasonably practicable.
3. PHI made reference to the preface in the 2019 BREF referring to:
   1. chapters including:
      1. general information on the industrial sector concerned and the industrial processes used within the sector (chapters 1 and 2);
      2. data and information concerning the environmental performance of installations within the sector, and in operation at the time of writing, in terms of current emissions, the consumption and nature of raw materials, water consumption, use of energy and the generation of waste (chapter 3);
      3. descriptions in more detail of the techniques to prevent, or where this is not practicable, to reduce the environmental impact of installations in this sector that were considered in determining the BAT. It also states that this information includes, where relevant, the environmental performance levels (e.g. emission and consumption levels) which can be achieved by using the techniques, the associated monitoring and the costs and the cross-media issues associated with techniques (chapter 4);

1. information sources and the derivation of BAT, noting the following:

1. PHI points to the relationship between emission levels and BAT expressed above, and referred to the different types of risks which are expressed in hundreds of pages in length in the 2019 BREF, together with the assessment of techniques and the ways of mitigating risks associated with these facilities. Examples include: organisational and operational techniques to improve environmental performance, operational thermal processing, techniques to increase energy recovery, flue-gas cleaning and air emission prevention techniques and waste water treatment and control.
2. PHI submits that there is detailed analysis for each phase or component of each process, analysis and methods, and conclusion about combinations of techniques which constitute BAT in making of the 2010 EC IED. This culminates in the BAT conclusions in chapter 5 of the 2019 BREF.
3. PHI referred to a number of the BATs with respect to the Application, for example:
   1. BAT 1 provides for environmental management systems. PHI submits that one of the requirements of condition DL_R01 is to implement an environmental management plan that accords with this principle: 'In order to improve the overall environmental performance, BAT is to elaborate and implement an environmental management system (EMS) that incorporates all of the following features:..';
   2. BAT 2 - BAT 8 call for different types of monitoring for WtE facilities consistent with the requirements of the Development Licence that monitoring regimes be established for the proposed activity (part 5.1.2);
   3. BAT 9 - BAT 18 relate to general environmental and combustion performance which PHI says is precisely the types of audits required under EP licence in DLR04-1 (part 5.1.3);
   4. BAT 19 - BAT 20 relate to energy efficiency (part 5.1.4);
   5. BAT 21 - BAT 31 relate to emissions to air (part 5.1.5), including:
      1. diffuse emissions and BAT 21 - noting that one of the requirements in chapter 7 of the Assessment Report is that the waste bunker be retained at negative pressure and so this is an example how the information that is within the Assessment Report and where properly considered allowed the EPA to form a view about how the application complies with the GED;
      2. channel emissions:
         1. BAT 25 - Table 5.3 is about associated emission levels from the incineration of waste where it specifies quantitative levels for emissions levels on top of the stack. They are emissions that are associated with techniques that are identified as BAT to eliminate or reduce risk of harm. PHI says that is why it is wrong to characterise these conclusions as specifying emissions limits - at times they do that but in each case they are specified, they are the limits associated with implementation of that term specified within the meaning of 2010 EC IED;
         2. BAT 27 - for emission of HCI, HF and SO2 - noting reference to use one or a combination of the techniques specified in the table;
         3. BAT 28 - BAT is to use technique (a) or both in the table;
   6. BAT 32 - BAT 34 relate to emissions to water (part 5.1.6);
   7. BAT 35 - BAT 36 relate to material efficiency (part 5.1.7); and
   8. BAT 37 relates to noise (part 5.1.8).
4. In this context, PHI refutes Bisinella's submission that it was inappropriate to model and assess the risk of the Application for the adoption of the upper end of limits specified within 2019 BREF as associated with BATT.
5. This is because PHI said that Bisinella's submission is wrong. PHI submits the upper limits were adopted for the assessment of risk and this was a conservative approach having regard to a range of emissions techniques as properly categorised. That is, PHI submits that the upper limits were adopted for the purpose of the assessment of risk because that is conservative when having regard to the range of emissions and combination of techniques known as BAT. This allowed for a conservative assessment of risk and allowed the EPA to conclude, not just that relevant measures provided would minimise the risk of harm so far as reasonably practicable, but also form a view of any residual risk associated with implementation of these measures. Hence, it was a conservative approach.
6. Further, PHI submits that the application and specifications in 2019 BREF allowed EPA to form a view about risk minimisation by identifying BAT to reduce or minimise risks as far as reasonably practicable. The adoption of assessment of the upper end of the range is to reduce the range of a conservative assessment and allow EPA to make a proper risk assessment. What this showed is that the risk to human health posed by the Application is negligible or zero.
7. Also, PHI said that EPA was able to consider the measures proposed by reference to 2019 BREF and techniques specified in the Application and this allowed consideration of the conservative emissions adopted and allowed for an assessment of risk. That is, the material before the EPA allowed it, as an expert decision maker, to consider those things it needed to consider under the terms of EP Act 2017.
8. PHI then referred to:
   1. section 5.2 of Chapter 5 of the 2019 BREF which contains descriptions of techniques including:
      1. general techniques;
      2. techniques to reduce emissions to air;
      3. techniques to reduce emissions to water;
      4. management techniques.
   2. Chapter 6 of the 2019 BREF which contains 'emerging techniques'; and
   3. Chapter 7 'concluding remarks and recommendations for future work', which set out an explanation of the thoroughness of the review.
9. Overall, PHI submits that this assessment concludes that 2019 BREF is a type of document specified in Principle 19 and section 6(2) of the EP Act 2017 that should inform the acceptability of the Application.
10. The implementation of 2019 BREF and the BAT conclusions came into law on 12 November 2019.[177]

Why PHI says EU framework is 'complementary' to EP Act 2017

1. PHI submits that it has demonstrated why the EPA was correct to say at paragraph [117] of the Assessment Report that the EU Framework for WtE facilities referred to in its assessment was 'complementary to the EP Act 2017 and the GED' because it has explained how those documents informed the Application and the EPA's Assessment Report, especially with respect to emissions.
2. PHI said that the Application made a commitment to comply with the BAT in the 2019 BREF. Chapter 7 of the Assessment Report gives effect to the 2019 BREF and PHI contends that it is a useful ready reckoner of the components of the Application which confirms those aspects that are technical assessments submitted with the Application (such as the air emissions illustration).

1. PHI submits how it is the adoption of an upper level emission limit in the EU Framework that actually produces a conservative assessment of risk and the Assessment Report adopted emission rates that were consistent with BAT emission limits to the extent relevant to the Assessment Report. This means the Application was taken to an added degree of conservatism because the modelling exercise that informed the Assessment (that is, in performing the site specific modelling to assess the impact of this activity here, the modelling of the air quality assessment) reflected the outcomes of the emissions of the BAT air quality defined in the 2019 BREF and a number of specifications that align with BAT.
2. For example, PHI made reference to the Air Quality Impact Assessment Report prepared by Jacobs as part of the Application at part 5.5 (conservative assessment strategy) and the AERMOD results. Table 6.1 contains ground level concentrations associated with specific ground receptors and direct receptors repeated for various pollutants. Jacobs concluded that 'a conservative strategy' was applied for the assessment based on testing air pollutant emissions from the proposed WtE with approximately 40,000 possible, hourly meteorological conditions. Key aspects of the air quality impact assessment undertaken for the Project were:
   • A conservative approach was used to estimate emissions for each substance based on a review of the literature, with a focus on the EC (2019a) studies of many operating EfW plants in Europe.
   • Air pollutant emission from the tall stack were modelling as a continuous source; i.e. for all hours in each of the five simulated years, where the Plant's (annual) capacity factor may be as low as 90% (Section 4.9).
   • The modelling included wake and washdown effects associated with the Plant's main buildings and stack.
   • The combined effects of the Project emissions plus estimates for background based on local measurements represent the expected, cumulative (total), worst-case, air quality impacts.

The assessment concludes that the emissions to air from the proposed EfW Plant are minimal, with no advise air quality impacts anticipated. Table 7.1 shows the key emissions from the EfW Plant and the compliance with relevant legislative requirements. Emissions from the EfW Plant will meet all IED and SEPP (AQM) emission limits. The air quality assessment results for all substances are also summarised in the following table and paragraphs...

1. PHI submits that for Bisinella to assert there was no estimate of emissions is wrong. Rather, emissions are based on BAT, as informed by relevant EU publications which are emission rates associated with specifically the type of plant applied for here.
2. PHI submits that there is a direct correlation between the emissions modelled and generated from the facility and the estimates are conservative because they are based on an upper end of the range of operations.
3. Further, PHI submits there are site specific emissions that allow the EPA to form a view on risk and those site specific emissions were conservative. The fact there is scope for refinement through detailed design does not detract from this.
4. PHI submits that no evidence has been led regarding optimization. Instead, based on conservative estimates, the assessment of air quality impact assessment in turn informed the human health impact assessment.

1. PHI referred to the report 'Energy from Waste - Prospect Hill: Health Impact Assessment' prepared by EnRisks dated 25 January 2021.[178] The report considers heath impacts of various emissions, including air emissions and explains that an air dispersion model was used, making a link that air quality can lead to risks for human health. The risk calculations were presented for the following locations within the community:
   1. maximum impacted location anywhere within the study area regardless of location and land use; and
   2. maximum impacted sensitive receptor.
2. Section 4.5 set out the inhalation exposures, and states:[179]

1. PHI submits that the report is saying, based upon the modelling and conservative assumptions, the level of risk is in the order of magnitude below, representative of zero risk.
2. With respect to acute exposures, PHI submits that the pollutants analysis exposure to risk posted by the modelling undertaken on a worse case conservative assumption and in each case the hazard index calculated and risk sits below the level of negligible. The conclusion is that the impact or risk posed by each of the pollutants is 'negligible'. See table and the line 'Target (acceptable / negligible HI).[180]
3. For a similar exercise undertaken for chronic exposures, PHI submits that the following conclusions were reached:[181]

1. PHI submits this is an example of the way the Application utilised the 2019 BREF. PHI says this is entirely consistent with the way the activity was premised, so as to assess risk that was conservative, to allow assessment of risk, and ultimately consider whether the level of risk of harm was unacceptable under section 69(4) of the EP Act 2017.

How the EPA utilised the EU Guidelines in its Assessment

1. PHI submits that the EPA utilised the EU Guidelines to inform BATT because the EPA was required under section 69(3)(d) of the EP Act 2017 to consider BATT and so EPA had regard to 2019 BREF- refer to paragraphs 611 - 615 of the Assessment Report extracted below:[182]

1. PHI submits that there is no contest that the EU guidance documents are the BATT for the purposes of s 69(3)(d) of the EP Act 2017, and further submits that the findings are entirely open to the EPA.
2. PHI also submits that Appendix F to the Assessment Report sets out EPA assessment of the Application under BATT. PHI says there has been no contest about the appropriateness of conclusions drawn by EPA. PHI submits that in each case, the EPA expresses its expert view and the Application satisfies the relevant requirements.
3. However, PHI submits that what it is clear from Appendix F how this document informed not just BATT but also GED because each component was assessed and the EPA was satisfied. Again, PHI says it is conscious of the Tribunal's task in this proceeding because it is not merits review, but it demonstrates that it was open on material before EPA, to form these views. PHI submits that the Application was assessed against International BATT and, it was systematic, it was meticulous, it was relevant to this aspect of assessment, and it did not just inform section 69(3)(d) of the EP Act 2017 but it also informed section 69(3)(a) of the EP Act 2017.
4. Under section 69(3) of the EP Act 2017, PHI submits that what the EPA is required to do for the GED is to have regard to any measures the applicant has taken on to comply with the GED when engaging with the Application. This is because it is open to the decision maker when a proponent takes on BATT to conclude those same BATT constitute the GED. PHI says that this is particularly the case when the BATT measured here is defined in the EU publication in a way entirely complementary to harm minimisation - to eliminate, or where not practicable to do so, to reduce, and how it is informed by assessment under 2019 BREF.
5. The EPA's assessment of the GED is set out in Part 6.1 of the Assessment Report and PHI submits that when reviewing this in context, it is a thorough assessment of measures proposed, identified in the Application and secured in the Development Licence as a means of implementing the GED.
6. PHI says that the section explains the EPA must take into account any measures PHI has taken or proposes to take to comply with the GED when engaging in the activity subject to the application. Sections 25(4) and (5) and (6) of the EP Act 2017 are all identified as relevant.[183]
7. Then, having gone through 2019 BREF, PHI submits it is clear why the EPA was correct to characterise implementation of GED (and PHI submits the EPA did consider the measures of GED under section 69(3)(a)) because it relied upon achievement of EU Guidance that it found was complementary to the GED. This allowed the EPA to undertake a sophisticated analysis of compliance with GED.
8. PHI submits that in its Assessment Report, the EPA tied together the basis on which the Application was presented and the risk assessment was undertaken:[184]

1. Thus, PHI says that the EPA's assessment has been undertaken as informed by a concept design, which led the EPA to conclude that risk, and the identification of terms of the Development Licence. And so, PHI submits there is no deferral of the EPA's decision. That decision was made at the time of the Assessment Report and what EPA has done is formulate development licence conditions that ensure the level of risk will be validated. PHI submits that the process of validation through detailed design, and conditions, is entirely acceptable.
2. PHI referred to the EPA Assessment Report which it says explains that PHI's risk assessment methodology is based on EPA's risk matrix and criteria,[185] and EPA's conclusion: [186]

1. PHI submits there is no basis for this Tribunal to second guess the EPA, an expert decision making body, about the understanding of risk based on the detailed Assessment Report based on the detailed Application.
2. Further, PHI submits there is no evidence for the EPA to make another finding because the way the Application and Assessment Report fit together is informed by 2019 BREF. That finding should be a consequence of applying the 2019 BREF.
3. PHI submits that here, the EPA's Assessment Report demonstrates that it is satisfied that the risk associated with the activity for which permission is sought has been correctly identified. There has been quantification of emissions, and it is a conservative one under BATT. Then, the Assessment Report assesses risk and measures as a means for complying with GED. This is not limited to one type of risk; it is multidisciplinary and systemic. For example, with respect to 'construction activities' at section 6.1.2, EPA undertakes the following analysis:
   1. identification of risk and degree of harm;
   2. knowledge of risk and availability and suitability of controls to eliminate or reduce risks;
   3. costs of eliminating or reducing risks;
   4. key considerations; and
   5. construction management plan.[187]
4. The EPA then concludes:

1. PHI submits that the EPA, as an expert decision making body, aware of the basis of how the Application was advanced, reaches a view of its assessment of risk on the basis of the EP Act 2017. The lens is that it was adequate for the EPA to discharge its function and conclude it was satisfied through information received, coupled with the international BATT, to allow the EPA to make that assessment.
2. PHI submits that EPA adopts that model for each type of risk for operation of facility including greenhouse gases, air emissions, noise, water, wastewater and stormwater, land and groundwater, odour and waste.
3. PHI submits when the Tribunal examines the conclusions to see in each case whether the EPA is satisfied, a view can be formed of the level of risk so as to discharge the EPA's obligations. There is no basis for questioning the assessment made by the EPA.
4. For example, with respect to air emissions, the EPA said in identifying the risk and degree of harm:[188]

1. PHI said the EPA then considered the cost of eliminating or reducing those risks and the measures proposed at each stage of engineering controls or administrative controls. The engineering controls included consideration of design and operation measures such as furnace combustion control, advanced selective non-catalytic reduction ('SNCR') system for limiting NOx emissions, flue gas recirculation, lime and activated carbon powder injection into the flue gas duct, bag filters capture air pollution control residues and fly ash to reduce particulate concentrations to below 2010 EC IED limits, and continuous emissions monitoring system.
2. PHI says that the expression of the EPA at paragraph 184 of the Assessment Report explains how the EPA understands the air emission risks of hazards, consistent with the state of knowledge based on EPA publications and 2019 BREF. That is, a tying of the 'thing', the basis of the design and operational assessment, and the way the 'thing' may be authorised under a Development Licence:

1. Further, PHI submits that Table 15 identifies the measures required under section 69(3)(a) of the EP Act 2017 which are specific measures documented in the Application.
2. PHI says that, through a detailed and systematic examination of the Application through the 2019 BREF, to the way the EPA assessed it, there was a tying together of specific measures and choices committed by PHI in order to implement GED and information on the part of the EPA is acceptable.
3. PHI submits that the question in this proceeding is not whether the Tribunal agrees or does not agree with those conclusions, but whether it was open to the EPA to make these conclusions. PHI says it as was open to the EPA and it employed a disciplined, systematic coherent manner in the way it assessed the Application under section 69 of the EP Act 2017 to ensure that it had the information it needed to make the Assessment.
4. PHI submits that it is the EPA who is best placed to undertake the assessment of the Application and how to perform the function.
5. With respect to costs, the EPA said that it proportionate to the risk of harm assessed under 6.1.3:[189]

1. PHI says this is not deferring consideration to an emission standard; rather EPA is applying an emission standard which is BATT but that is a BATT that eliminates harm to the extent reasonably practicable in a coherent way and by one of the ways open to the EPA. The emissions standard is BATT and that is the means for meeting the GED. PHI says this cannot be said to be a deferral given Table 15 refers to quantitative matters which are tailored to specific measures and these are secured under the Development Licence itself with specificity of a plan including components in Table 15, including the flue gas receptor, and flue gas reticulation.
2. Further, PHI submits the Assessment Report then reviews the key considerations and demonstrates how the EPA has utilised EU Guidance to inform its assessment of measures to comply with GED in a way that is entirely consistent with harm minimisation in section 69 of the EP Act 2017. Then, EPA, being conscious of the conceptual nature of the design and that further refinement is required for optimisation, requires verification at the detailed design stage endorsed by a suitability qualified EPA appointed auditor.[190] But PHI says this is not a deferral of the decision; the assessment occurs now and the Development Licence simply provides a means by which it can be verified.
3. PHI submits that is appropriate because the GED is not an obligation that stops when the development licence is issued. Rather, the GED is an ongoing obligation and the approach taken is consistent, not with a deferral, but with consideration occurring at the assessment stage and verification to ensure optimisation being provided for in the detailed design phase.
4. PHI submits that it is a high hurdle for Bisinella to say EPA did not meet its obligations based on the level of information and EPA's assessment of risk of the section 69(3)(a) EP Act 2017 matters. It is also relevant that EPA assessed the risk posed by human health and environment which focussed on the way to considering section 69(4) of the EP Act 2017 referred to in Bisinella's grounds.
5. PHI also gave another example about the separate impact on human health and environment and what it said was a detailed and systematic assessment under the EP Act 2017. For example, the EPA states in the Assessment Report:[191]

1. PHI submits that this demonstrates that, in context of this legislative regime that does not preclude concept design, the expert decision maker has assessed information before it. It also demonstrates how the EPA has undertaken various assessments under the EP Act 2017.
2. PHI refutes Bisinella's argument that the only thing that can be considered is the 'actual design', despite Bisinella accepting the application can be conceptual. Instead, PHI says what the EPA did evidences the process and reasoning, and it is undoubtedly open to the EPA to make the decision that it did. Therefore, Bisinella's Grounds 1 and 2 must fail.
3. PHI submits that when considering the Application in entirety, the 2019 BREF and 2010 EC IED and how it informs the assessment of the Application and this in turn informs EPA's analysis expressed in Assessment report, it is clear how it is open to the EPA to form the view expressed in the Assessment Report that the Application worked through the decision making framework under section 69 of the EP Act 2017.

1. PHI submits that the Tribunal should be satisfied that:
   1. the centrepiece of the EPA's assessment was an assessment of risk posed for which permission is sought;
   2. the EPA's assessment of each of the matters specified under sections 69(3)(a) and (4) of the EP Act 2017 was unambiguously informed by an assessment of risk;
   3. that assessment of risk in turn, informed by the application materials, were coupled with detailed studies undertaken regarding of the WtE industry (i.e. studies of different risks associated with operation of this type of plant and development that arise regarding the type of development activity proposed here); and
   4. those studies included mitigation of various measures adopted in that WtE industry to mitigate risk to the extent reasonably practicable and they are studies informed by international best practice as described by EPA.
2. Contrary to Bisinella's submissions, PHI submits that it is clear that the risk assessment was site specific, and defined by the risks posed by the activity in the Application. For example, the air emission dispersion model regarding ground level concentrations was at relevant receptors and EPA formed the view that that assessment of risk was sufficient, notwithstanding detailed design and optimisation would follow, and there is no evidence to say this conclusion was not proper.
3. PHI says there is no evidence before the Tribunal to say that it was not open to the EPA to reach the conclusion it did, based on the material before it.
4. Also, PHI submits that the assessment completed was informed by analysis that was appropriately conservative, taking into account emissions modelling and that conservative analysis informed the assessment of risk by the EPA. That is, even having regard to the conservative nature of assessment, the risks were low.
5. PHI submits that it is clear from the Assessment Report, that the assessment was undertaken at the time and it cannot be said there was deferral of relevant matters. Rather, the Application was considered in detail and the EPA diligently recorded its finding for each matter and then formulated and worded conditions to ensure the activity will be carried out. But that does not deviate from the assessment undertaken: the risks undertaken under the Development Licence will be the same as those assessed.
6. With respect to the GED, PHI submits that the EPA completed a coherent and cogent analysis of risks and, specifically as required under section 69(3)(a) of the EP Act 2017, considered the measures proposed by PHI as a means of complying with the GED when engaging with the activity that is the subject of the Application. When understood in context and in full, it is clear the conceptual nature did not preclude the EPA undertaking that assessment in a way that was open to it. To the contrary, the Application itself demonstrates that the Assessment Report was prepared and the analysis was undertaken which allowed the EPA within a framework that is highly developed and sophisticated and undoubtedly represents the state of knowledge for this industry sector.
7. When considering the matters required to be considered in section 6(2) of the EP Act 2017, being the matters regard must be had to determine what is 'reasonably practicable' and if those matters are considered in light of materials walked through, it is clear that the EPA was able to assess:
   1. the likelihood of those risk eventuating: it did so explicitly;
   2. the degree of harm of those risks eventuating: it did so explicitly;
   3. what the person concerned knows or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks: it did so explicitly by reference to International Best Practice;
   4. the availability and suitability of ways to eliminate or reduce those risks: it did so expressly by reference to the 2019 BREF, which identified those techniques that are properly considered to be the BATT and having regard to 2010 EC IED being techniques to eliminate or reduce those impacts to the extent practicable;
   5. the cost of eliminating or reducing those risks**: indeed analysis was a recognition on the part of the EPA that costs should not be a factor that warrants or count against implementing those techniques. Whereas some point was made by Bisinella that 'BATT does necessarily equate to the reduction of risk to the extent reasonably practicable', PHI agrees but says it might, for example, be that the cost of implementing BATT counts against it being considered a 'reasonably practicable measure' in a given circumstance and that some lesser form of amelioration might be appropriate having regard to the physical context in which the activity is being undertaken**.
8. And so, PHI submits that having regard to those things which bear upon a determination of what is 'reasonably practicable' and understanding properly the nature of the material before EPA, it is evident the EPA did consider each of all those things.
9. Further, PHI submits that it was said by Bisinella the EPA should have gone through all the combinations of techniques in 2019 BREF and identify which of those is best. However, PHI submits that is not what section 6(2) requires of a decision maker. Instead, a decision maker must have regard to the availability and suitability of the measures in place to eliminate or to reduce those risks, and by having regard to the 2019 BREF (which is one of the techniques that are committed to here) as being one of the combinations that does constitute the BATT, it is obvious EPA has properly addressed those matters required under under section 6(2) of the EP Act 2017.
10. PHI said that there seems to be a misguided premise that a reduction of risk 'as far of reasonably practicable' can only be achieved by adopting one particular combination of the technologies. PHI submits that is evidently not the case because what the 2019 BREF does, by identifying in great detail the different types of technology, show what can be implemented is to properly recognize that there can be many combinations of techniques to reduce risk and as far as reasonably practicable and what is proposed here, in the EPA's view is one of those.
11. One might have a disagreement about it, for example, and might want to see a particular type of caloric reductor here to reduce, to the extent reasonably practicable, the bottom end of 2019 BREF. But PHI submits this is a merits argument. The question here in this proceeding is whether the EPA had the information available to it in order to make the determination it did pursuant to the terms of the EP Act 2017. PHI submits that the firm conclusion that it asks the Tribunal to do, is that it did. Once we reach that view we move on.

1. PHI made oral submissions in response about two examples referred to in Bisnella's submissions.

1. The first was the response made in correspondence by PHI on 10 November 2022 under former section 50(3) of the EP Act 2017.
2. In response to the RFI 'please provide a direct summary of measures proposed to comply with the general environment duty in relation to air emissions' in particular the second paragraph:[192]

1. That response provided by PHI was regarding the query made by EPA concerning measures to comply with GED. The explanation given was that the proposal is aligned with plant activities and technology in particular implementation of BATT, and Bisinella suggested this was how the decision was deferred.
2. PHI submits that Bisinella's submission is misguided because the obligation to comply with GED is ongoing. It does not cease at the time the Development Licence was issued and it is appropriate when detailed design occurs that optimisation would follow and the ongoing assessment is completed as required by section 25(4)(b) of the EP Act 2017:

1. PHI says this is an example of a response to the GED regarding ongoing harm minimisation by implementation of systems. PHI submits there is no deferral of the decision, instead the statute recognises the obligation is an ongoing one and the commitment to continue to comply with that ongoing obligation is appropriate.

1. The second example in PHI's oral submissions in response, sought to counter Bisinella's proposition that it was not sufficient to refer to BATT or 2019 BREF in justifying compliance with the GED and 'reducing as so far as reasonably practicable'.
2. The example referred to is the communication from Jacobs from PHI to the EPA[193] of how it is that the appropriateness of measures proposed by concepts of measures in section 6(2) can be assessed.
3. The context was whether it was appropriate to include a condition on the development licence which requires meeting the lower end of the BAT-AEL ranges.
4. An extract from the response provided by Jacobs on behalf of PHI is extracted below:

1. In explaining why the conditions should not be included, the first dot point in the response by Jacobs explained why a selective catalytic reduction is not proposed in the Application compared to a non-selective catalytic process because it is considered more expensive and detrimental to the efficient operation of the plant, and also will create a (typically vanadium) catalyst waste stream. These were said to be trade-offs between NOx emissions and optimal efficiency and waste generation. PHI's view was that the proposed concept design is the best overall balance for the environment and human health.
2. PHI submits it is an example of how in merits review the Tribunal could consider that measures proposed do not meet the GED, notwithstanding the risk is zero or negligible; the approach does not preclude those types of arguments of assessments.
3. Similarly, PHI submits that it is open to Bisinella to argue that instead of dry or semi-dry scrubbers there should be a wet system and if Bisnella wants to argue this is not consistent with best practice notwithstanding the assessment, it can do that at the merits hearing. However, the response from Jacobs above indicated that a wet system would produce a liquid effluent stream from the facility which would have to be treated and discharged from the facility creating an unnecessary waste stream.
4. Further, PHI submits that if Bisnella wishes to suggest the performance based assessment should be at the lower end, it can do it as merits arguments. But this does not preclude the EPA to form the view it did with respect to granting the Development Licence. This is because PHI submits that it was open to the EPA to make the decision the EPA did and likewise it is open for Bisinella to argue it was wrong under section 25(4)(2)(b) of the EP Act 2017 at hearing on the merits.

1. PHI submits that the same force of the argument applies to the assessment of noise emissions. The relevant report 'Prospect Hill Energy from Waste Facility - Noise Impact Assessment, Revision no 2', prepared by Jacobs dated 24 August 2022[194].
2. PHI said that this report was submitted in response to the RFI highlights and documents outcomes of the site specific activity having regard to inputs from plants of the type and kind here, noting there was identification of sound levels based on equipment proposed and modelling undertaken for the relevant Noise Protocol and Environmental Reference Standard ('ERS').
3. Section 6 of the Assessment Report relates to 'Noise Mitigation Measures'. PHI referred to the discussion of the type of measures to address the types of risk, for example, low frequency noise. At section 6.2, there is recognition that there will be noise control treatments in the detailed design.
4. PHI submits that this does not discount or invalidate the noise within the Noise Impact Assessment to be mitigated. Rather, this recognises that during detailed design there is scope for further refinement and optimisation.
5. The Assessment Report at section 6.3 refers to the noise control treatments and section 7 discusses the predicted noise levels with Table 9 setting out predicted worst-case noise levels with recommended noise control treatments. PHI submits that the predicted noise levels show that all noise levels sit below noise level limits for night time.
6. However, PHI accepts that the report also states that in detailed design, alternative treatments / noise measures could be investigated consistent with ongoing obligation of the GED (refer to section 8.1, Noise control treatments):

1. However, PHI submits that whilst Bisinella sought to latch on to the wholesale reorganisation of the plant in the last bullet above as a potential option, this component must be understood as part of the whole Application which describes the way the site layout has been defined and explains the general expectation of the design. Based upon that assessment, PHI submits that the EPA's Assessment Report is a thorough assessment of risk posed by noise impacts at Table 53: Noise (BAT 37)[195] and in the main report at section 6.1.5 (Noise).
2. PHI submits that this example shows the identification of risk, state of knowledge factors, consideration of potential costs of reducing those risks to matters relevant under section 6 of the EP Act 2017, and specific measures identified by the EPA regarding the measures required to comply with GED.
3. PHI submits that whilst Bisinella might not agree with the assessment, this does not matter. It is not the nature of review undertaken. The detailed assessment is based on an assessment of the information before it, and that enables the EPA to make the assessment and in PHI's submission nothing precludes the assessment.
4. Further, PHI submits that the detailed assessment about noise included affects on human health was also considered under section 6.2.4 of the Assessment Report and concluded that 'EPA is satisfied that noise emissions pose a low and acceptable risk to human health and environment and the relevant value of the ERS.'[196]
5. PHI submits that whilst a more stringent standard was open to the expert decision making body,[197] a coherent detailed assessment of risk was made by the EPA more than satisfying the requirements of section 69 of the EP Act 2017.

1. PHI made submissions in response to Bisinella's submissions about the new IED of April 2024.
2. PHI submits that the lawfulness of EPA's decision to grant the Development Licence was dated 6 December 2023. The IED of April 2024 did not exist at the time and necessarily was not before EPA at the time it made its decision.
3. Thus, PHI submits that the relevance of the IED of April 2024 is severely impacted because it was created after the EPA's decision made. Its contents cannot have been known by EPA nor could it have informed EPA's mind or section 69, nor can it bear on the state of knowledge required under section 6(2)(c) of the EP Act 2017 in the assessment of GED. For those reasons, PHI submits that the matters set out are limited or of any relevance, and are matters that fail to be determined in the way it was seemingly tried to be relied upon.
4. PHI submits that Bisinella then contends, notwithstanding the document was created after the Decision, it nonetheless articulates a principle Bisinella relies on its it case, to reveals the fundamental inconsistency between that approach in the 2010 EC IED and the nature of assessment requirement under EP Act 2017 particularly, the GED.
5. First, PHI said they wish to be clear that those submissions are wholly misconceived because the EPA simply did not use BATT emission limits as a proxy for or substitute for GED. That is not what the EPA did. Instead, PHI submit that the EPA made reference to 2019 BREF and BATT specified in the 2019 BREF to inform its assessment under the EP Act 2017. It did so with respect to BATT under section 69(3)(d) of the EP Act 2017 and to inform its consideration under section 69(3)(a) of the EP Act 2017.
6. PHI submits that EPA utilised and had regard to the 2019 BREF as part of a broader consideration of the measures proposed by PHI to comply with the GED. The fact Bisniella says it 'deferred' or used 2010 EC IED as a 'proxy' for the GED is a fundamental mischaracterization.
7. Secondly, with respect to the IED 2024, PHI said that reference was made to paragraph 29. PHI submits that there are ranges in 2019 BREF regarding certain BATT conclusions including different BAT techniques for different types of pollutants. A range is specified for facilities this time because there is different feedstock; it recognises the different types of technologies. The text referenced was specifically:

...The achievement of a high level of protection of human health and the environment as a whole has been jeopardised by the practice of setting emission limit values at the laxest end of the range of emission levels associated with the best available techniques, without considering the potential of a given installation to achieve lower emission levels through the application of best available techniques...

1. Nevertheless, PHI submits that is not what EPA has done with respect to the Application. PHI submits that the EPA has required a particular combination of plant and equipment, being the techniques articulated in the Application and picked up by terms of the Development Licence. What is described in that critical sentence above is not what the EPA has done here.
2. PHI said that instead, the EPA and, in the Development Licence itself, the 2019 BREF emission limits are coupled with the specification of particular combination that are proposed in the proposal. That is, PHI submit that it is not the case here that the EPA granted a development licence specifying that emissions must be in this range. Rather, the Application instead specifies the combination of plant and equipment that will be implemented in this proposal and they are specified as must be delivered as part of the activity. Those measures were assessed by EPA.
3. Furthermore, PHI submits that the EPA specified, within the Development Licence, performance measures that must be complied with, being performance measures which correspond to emission limits specified in 2019 BREF. There can be no doubt that EPA can specify performance measures in light of section 54 of the EP Act 2017 which it says can be done. For example, PHI submits that the types of technologies that must form part of the application are set out in condition DL_DO3.
4. PHI says this makes good the proposition because it says it is not the case that EPA is leaving it at large with what the techniques are to address risk.
5. Further, PHI submits that it cannot be any combination and the Application and Development Licence are clear on this with respect to limb (f) of condition DL_DO3 which states the proposal:

1. PHI submits that this has been fundamentally misunderstood by Bisinella as condition (f) requires the various specifications must meet requirements of 2010 EC IED to reflect the verification reports:
   1. operating in BAT-AEL relating to air emissions principally;
   2. does not exceed under all other operating conditions and reduces emissions within those ranges so far as reasonably practicable.
2. PHI says this specification was carried through to the Development Licence. PHI also submits that this specification, as to the nature of the measures that would reduce in accordance with GED, must do so not just in the range in the 2019 BREF, but also in standard operating conditions, it must do so to comply with GED.
3. So, PHI submits that to the extent IED 2024 is relevant at all, far from counting against lawfulness of the EPA, PHI says it supports it entirely.

1. In addition, PHI submits that Bisinella veared into merits review and the reliance on IED April 2024 only goes to demonstrate that point.
2. PHI submits that if Bisinella wants to argue a different combination of techniques should be the combination of techniques adopted and on that basis the EPA's decision about GED was incorrect, it can come to the merits hearing and argue that.
3. To illustrate this, PHI said that if Bisnella considers that a particular emissions technique should be preferred, such as this proposal proposed selected non-catalytic measures - it may be that Bisinella would say that a wrong combination was approved and it should be selected catalytic reduction. One thing identified in chapter 4 of 2019 BREF goes through different characteristics of different means to reduce emissions.[198] PHI submits in this example, things that are proposedly known in a way that allows assessment of risk and in turn whether risk has been reduced as far as soon as reasonably practicable. If Bisinella does not think that a specific combination is acceptable, it can argue that at the merits hearing. Whilst this may be one limited example of where a comparison can be drawn, but that is for the merits review and not the Tribunal's task here.
4. PHI says that Bisinella's reliance on paragraph 29 of the package which introduced IED 2024 to say that the EPA should have set limits in the range and not the range itself, is not what the EPA did. Even if the EPA set a range, it is still an argument of how did the EPA assessed the GED. This is an argument about the merits rather than an argument about lawfulness.

1. PHI submission that either Bisinella has misunderstood its case or it has advanced a 'strawman argument'; either way PHI's response is the same.
2. PHI submits that in the decision concerning Matuschka involved the third of the four grounds that the decision was so uncertain that there is no decision at all. Despite this being the only Victorian case considering Buzzacott or Mison, Bisinella made no reference to Matuschka in written submissions.
3. In Matuschka, the argument advanced by a party in opposition to the works approval application made under the EP Act 1970 concerned conditions contained within that approval that required the further assessment of environmental effects and risks after the issue of the relevant works approval. The relevant condition to give rise was said to be the condition regarding further assessment of noise. The argument was, as a consequence of further assessment, that resulted in uncertainty because it deferred assessment until a later date.
4. The argument related to condition WA_W1.1 and the Works Approval required a number of further plans.
5. PHI said Bisnella submits that the effect about the comparable condition in the Development Licence regarding impacts by way of verification - establishes a quasi-approval process outside the statutory framework and amounts to deferral. However, here Bisinella does not rely on a design, it relies on premise that the conditions - as 'the verification assessments' - are a deferral of the statutory task.
6. In Matuschka, the Tribunal said the degree of flexibility in approval did not amount to a failure to exercise discretion under the EP Act 1970 and it was reasonable for conditions of that type to be included in the work approval.
7. Here, PHI submits that it has been at pains to show there were differences between the two applications and they did that because it says including conditions of that type applies with equal force in the new EP Act 2017. Whether more or less information is provided as part of the Matuschka application does not matter, this application is entirely under the new EP Act 2017 and conditions of this type are included as a means of verifying the 'thing' for which permission granted is the same as the basis of assessment.
8. PHI says that the question about the level of detail in the Matuschka application was not responsive Bisinella's grounds. Those submissions were not made with respect to grounds 1 and 2 but the submissions were made with respect to ground 3. However, it was accepted that Matuschka was based on a conceptual application and 'concept plans' were a matter of some mirth accordingly to Bisnella.
9. PHI submits that the fact of the matter is that the application was conceptual to some degree in Matuschka. Bisinella tells us how it was conceptual but that conceptual proposal had a greater degree of specification than this application. However, PHI submits that that is of little consequence to the question before this Tribunal. PHI submits that the applications are different: different types of applications made properly by different supports of information, different degrees of specification, may be more or less - can be specified in plan or written form.
10. The questions before the Tribunal here are: was the EPA's decision lawful and was the level of information adequate to discharge its statutory function? PHI submits that in walking through the Application and EU Framework and standards and the various assessments of the Application themselves, that all feeds into a proposition that EPA was able to discharge its statutory function by assessing risk and met its relevant obligations under legislation.

Were the risks reduced as far as reasonable practicable?

1. PHI submits that Bisnella observed this is not a case about level of risk posed by the facility and whether the effects are low or negligible. Rather, Bisinella went on to say 'instead this is a case about whether those risks have been reduced 'so far as reasonably practicable''.
2. PHI submits that this is not a case about whether the risks associated with this facility have been reduced as far as reasonably practicable. Why? Because that is a merits question. Rather, this is a case whether the EPA's decision was lawful.
3. PHI submits that section 69 of the EP Act 2017 requires in that, in determining an application of this type, the authority must take into account 'any measures the applicant has taken or proposes to take in order to comply with the GED when engaging with the activity that is the subject of the application'.
4. That is, the express requirement under the EP Act 2017 as it concerns the GED in the context of the determination of an application of this type and it is to have regard to the measures proposed. PHI takes no issue with the characterisation of that as being a mandatory relevant consideration.
5. But PHI submits that what Bisinella seems to do is going on to assert that the utilisation of a concept design precluded the EPA from being able to consider those matters. But not all of the matters - just the things it was required to consider in respect of the GED.
6. And it was said, in Bisinella's submission, that what was made that the applicant's position would not be the 'death of the concept' design. But it was also said that in order for the EPA to discharge its statutory function, the EPA must be assessing an application which specifies the actual plant and equipment to be built. So, it is problematic if it is not the 'death of a concept design' as an assessment approach, but an application must specify the actual plant and equipment to be constructed.
7. PHI submits then it was said by Bisinella this is not a case about whether the EPA had sufficient information before it to make its decision. It is instead a case about what the EPA did with the information it had.
8. PHI submits so when pushed on what was the fundamental defect about the Application, it was said, the Application materials were too loose because they did not allow an assessment of the GED in how it was ultimately framed. It was said there should be more specified plans. But Bisinella could not or never did articulate what further specifications should be contained within the plans. Bisinella never responded to the very detailed plant and equipment technologies that are contained within the description contained within the Application to identify about how it is said that description, coupled with the plans, did not allow the EPA to discharge its statutory function.
9. It was PHI's submission this is a case where Bisinella simply never grappled with what was proposed, as it was articulated within the Application, and instead proceeded on a false premise that that was wholly unknown in circumstances where it was in fact specified to the requisite degree to allow an assessment of the things that need be assessed. So there is a lot of pointing to the plan which forms part of the Development Licence (not just the Application), and an assertion that it was not detailed enough to allow an assessment. But no response was made to those aspects of the Application and Development Licence itself that specify the particular combination of the techniques and plant and equipment that must be implemented as a part of this proposal as a means of reducing risk.
10. And again, the reason why PHI says they took the Tribunal through all the detail was to respond to that high level of detail that there was not information. However, PHI submits that properly understood there was a consideration and the amount of information that allowed the EPA to do a proper assessment of all the things it is required to be assessed.
11. Further, PHI submits that the EPA is an expert decision maker who is best placed to consider the information it needs in order make the assessment. The matters raised by Bisinella do not justify a finding that the Application was so deficient that results in the EPA having failed to discharge its statutory functions.

1. The second matter raised by Bisinella was the mis-characterisation of Bisinella's case by PHI. The substance of those submissions concerned submissions that PHI made about the nature of the legislative scheme and the broad discretion conferred on the EPA in respect of various aspects of the decision making framework. In this regard, Bisinella said those PHI submissions were said that they did not respond to the case made. PHI's response, is that it is in fact Bisinella who has mischaracterised what PHI has said.
2. PHI submits that it has never sought to respond to a case that EPA has been affected by Wednesbury unreasonableness or is otherwise irrational. Rather, PHI has addressed the operation of the statutory framework contained within Part 4 of the EP Act 2017 to demonstrate why there is simply no statutory requirement that an application for a development licence cannot be advanced by way of a concept design. That is, to refute this contention advanced by Bisinella that somehow an application must specify the actual works. PHI said that it is understood that there are detailed plans about where the proposal will be located. It is in that context. There is obviously no statutory preclusion for a concept plan to be used to inform the assessment of the type that has been accepted.
3. And so, PHI submits that the application for declaration by Bisinella seems to rely on implied restrictions being contained within the terms of the provisions of Part 4 of the EP Act 2017 and this seems to principally focus on section 69 of the EP Act 2017 and what it says must flow as a consequence of that.
4. However, PHI says it made submissions about the scope of discretion on the part of the EPA, that is, the power of the EPA to determine the form and content of applications, the power of the EPA to call for further information should it require, the absence of any express requirement for the level of detail expressed in the Application plans, all points to a level of detail that allows an assessment to be processed on the basis that this one was. PHI submits that its submission were not about Wednesbury unreasonableness, moreover, its submissions are about that it was open pursuant to Part 4 of the EP Act 2017 to allow the EPA to assess the Application on the terms that it did.
5. PHI submits that if the Tribunal agrees, that is an answer to Grounds 1 and 2 which rely on a contention that it was not open to the provision of Part 4 of the EP Act to do that.

1. Returning to submissions about the consistency of EU term 'best practice' and the EP Act 2017 concept of GED, PHI submits that as the case has been framed as heard from Bisinella's submissions, this now seems to be a central premise of Bisnella's case. That is, there is a fundamental disconnect between the EU concept and Victorian legislation. Further, PHI said it was critical of Bisinella because of late timing of its submissions which it said was staggering in the context in a proceeding of this type.
2. It was said by Bisinella that the EPA has 'embarrassingly relied on the BATC and BREF 2019', and it was embarrassing because there are fundamental differences between that regime and the GED.
3. First, PHI said it wants to reiterate, that again, this submission is premised upon a characterization of the EPA's approach wherein it is asserted that the EPA said the achievement of emission limits specified in the 2019 BREF equate to the GED. PHI submits that that is not simply what the EPA did. It is wrong to say that the EPA used those documents as a proxy or a substitute for its assessment of GED.
4. PHI submits that instead the EPA used the 2019 BATC and 2019 BREF more generally as a tool in assessing the things it was required to assess being the things it was required to assess under Victorian legislation. It recognised them as the best available technology, a notion that Bisinella does not take issue with.
5. PHI submits that what is to observe is the consistency between the EU regime and notion of the GED. But when going back and carefully working through the EPA's Assessment of GED from start to finish, it is clear that what the EPA did was utilise the 2019 BREF as a tool to inform aspects of its assessment of the measures proposed by the PHI in order to comply with the GED.
6. PHI submits that the EPA identified the fact that the specific measures proposed and given effect within the Development Licence, were measures that were consistent with those identified within the EU framework as being BATT. PHI submits that the EPA specifically considered each of the factors that it was required to consider in section 6 of the EP Act 2017 in order to have regard to the GED. And it did so, not simply by utilizing the 2019 BREF or 2019 BATC but instead, by having appropriate regard to those conclusions as a means of informing a broader assessment. PHI says and it did so, not in the abstract but also in the context of a very detailed assessment of this proposal, documented within the Application; an assessment articulated utilising appropriately conservative assumptions of the 'thing' for which permission is sought.
7. PHI submits that equating the two things is wrong. There was no 'missing step' in the sense asserted by Bisinella.
8. Further, PHI submits that then it was said there were differences between the two regimes and Bisinella said that they were comparable but not the same because:
   1. regarding the concept of BAT under the 2010 EC IED, it was said this related to 'emissions' as opposed to 'risk';
   2. the definition of BAT did not use the concept of 'so far as reasonably practicable';
   3. the purpose of the BAT designation is to identify emission ranges, that would then inform granting of approvals, as opposed to the concept of GED which is about reducing risk so far as reasonably practicable.
9. PHI submits that whilst it is true under the EP Act 2017 the principle consideration is an assessment of risk not emissions. But of course, risk in this context, is at least informed by emissions.[199]
10. PHI submits:
    1. first, whilst there is focus on emissions as opposed to risk, in the context of applications of this type where the concept of risk is a function of the level of emissions in part discharged by a facility, there is no error in having regard to techniques that reduce emissions because a reduction of emissions leads to reduction of risk;
    2. secondly, it was said that this definition does not use the term 'so far as reasonably practicable' in the same way as GED. But what it does do, is this concept of 'BAT' is directed towards the identification of limits that are designed to 'prevent, and where that is not practicable, to reduce emissions'. So that requirement that either they 'prevent' 'or where not practicable, to reduce' is arguably more stringent because in Victorian legislation to the extent that the notion of 'practicable' is qualified by the notion of what is 'reasonable'.
    3. the third point seemingly relied upon, was what BAT is directed towards here, is the specification of limit ranges, rather than the consideration of 'measures to comply with the GED'. But this fails to understand how it is the EPA utilised the 2019 BATC and the 2019 BREF as part of its overall assessment of this Application. Because again, here, the Application did, and the EPA has been required to, specify the combination of the technologies and plant and equipment that must be implemented as part of the proposal. It is clear from the Assessment Report and the Development Licence itself and it has gone further to specify emissions limits which are consistent with what is recognised as BAT within the European Union. It has specified those performance measures as conditions within the Development Licence in a way that is explicitly contemplated by section 54(1)(d) of the EP Act 2017. Section 54 allows development licences to conditions to specify and contain performance measures. Furthermore, it is in fact required that that specified combination of techniques and technologies specified within that range be as low as reasonably practicable.
11. So, PHI says the way the EPA has utilised the 2019 BREF and 2019 BATC was a proper way to assess the things it was required to assess.
12. Finally, PHI submits it was said that what is required of the Tribunal is to determine whether the 2010 EC IED equates to the GED. In PHI's submission, that is not the Tribunal's task. What is the Tribunal's task is to determine whether the EPA discharged its statutory functions having regard to the terms of the EP Act 2017. The way the EPA utilised the 2010 EC IED, 2019 BREF and 2019 BATC does not require the Tribunal to say 'yes they are one and the same'. Instead, what the Tribunal must consider is whether the EPA addressed the things it was required to address under the EP Act 2017 in a way it was open to it.
13. PHI say that can only be answered by looking very carefully at the way the EPA did consider various things and the way it utilises the 2019 BREF as part of its broader assessment of the matters within Part 4 of the EP Act 2017.
14. In turning to section 6(2) of the EP Act 2017, PHI submit that it can readily be appreciated how, having regard to the 2019 BREF and 2019 BATC, in the way the EPA had regard to it, the EPA was able to assess:
    1. the likelihood of risks eventuating; and
    2. the degree of harm that would result if those risks eventuated.
15. This is because the EPA understood the nature of the 'thing' proposed, and there was a detailed assessment of the risk associated with emissions from that 'thing'.
16. In this regard, PHI said:
    1. in assessing 'what the person concerned knows or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks', PHI submits that the 2019 BREF is of considerable value to assess the state of knowledge in the way described;
    2. in assessing 'the availability and suitability of ways to eliminate or reduce those risks' that is at the heart of what the 2019 BREF does; and
    3. the cost of eliminating or reducing those risks was a matter the EPA specifically considered.
17. PHI says, so how is it that it can be said there is a missing step in the way the EPA undertook its assessment that amounts to jurisdictional error of law he's batteron its part is unclear? The Tribunal should conclude the assessment approach was readily open to the EPA.

1. The EPA submits that:
   1. the key issue is whether it was legally open to the EPA on the basis that it had sufficient information to assess risk under section 69 of the EP Act 2017;
   2. a declaration proceeding has a high threshold for Bisinella to say the exercise of discretion has miscarried; and
   3. the decision was made over a period of three years and there are real consequences.
2. With respect to the threshold of jurisdictional error, the issue when it comes to be assessed is whether legally it was open to the EPA to make the decision. It is not whether the Tribunal considered it is preferable or desirable based on different information.
3. The EPA submits that there was discretion and so long as it was within bounds of legal reasonableness, was open to the EPA to make the decision to grant the Development Licence. The EPA endorses and agrees with PHI.
4. EPA's submissions address:
   1. additional general remarks of EP Act 2017 and EPA's discretion under section 51A of EP Act 2017;[200]
   2. a response to the submissions made by Bisinella that EPA conflated the requirement to assess measures to comply with GED with BATT;
   3. the argument by Bisinella that in assessing a concept design, why preliminary / indicative information is sufficient, accurate and reliable, and because there is a well understood and well-established assumption 'the sun will rise tomorrow but I cannot say until it happens';
   4. further, because Bisinella fails to make up the factual premise of the four grounds, it has no case for error - be it factual, legal or jurisdictional error - the notions of 'nullity' and 'invalidity' do not need to be considered if the primary argument is accepted that the grounds fail that threshold or not; and
   5. how materiality plays into discretion is also a separate issue.

1. The EPA submits that the duty under section 69(3)(a) of the EP Act 2017 is one for the EPA to 'take into account' and there is no greater obligation provision. That is, the legislation does not say 'EPA has to reach a particular finding or state of satisfaction'.
2. The EPA submits that importantly, there is no need to make a finding that the GED should be discharged. That expression was used on the first day of the hearing by Bisinella, but it is wrong to say this is what section 69(3)(a) says because the GED does not apply yet.
3. The EPA submits that fundamentally section 25(1) of the EP Act 2017 refers to a person 'who is engaging in an activity'. This means the GED applies downstream; it does not apply until one carries out the activity. That is, one obtains their permission and then the GED comes into play, and when it does, it is ongoing and the duty holder must be flexible and always conscious to mitigate risk and adapt to circumstances of the GED.
4. The EPA submits that is why an absolutely rigid proposal does not correlate or reflect any lower risk profile under section 69(3)(a) of the EP Act 2017 and the need for sufficient flexibility to adapt to change. No amount of rigidity can be discharged because it is not fixed in time. The decision that at a point in time 'as far as reasonably practicable' means everything is appropriate going forward.
5. Further, the EPA submits that the reference to 'proposed measures' is the enquiry under s 69(3)(a) of the EP Act 2017 whether the proposed measures are capable of compliance with GED when that activity is being engaged in the operational phases. EPA's discretion about what information to get about those measures is directed towards the capability of the proponent to comply with the GED. The adequacy of proposed measures is a highly technical exercise to call on information as it sees fit and that is an obligation the EPA must take into account.
6. The EPA says that the EP Act 2017 gives the EPA considerable discretion to approve the form and content of applications, but does not require any level of detail to be valid under section 50 of EP Act 2017.
7. Section 51A (inserted by amending Act 36/2022) section 32 concerns relevant information the EPA considers necessary. It makes sense because the level of detail was significantly proposed. Well known risks that might justify brief details but if a proposal is untested or unknown, it would properly justify level of specificity. But it is to be assessed by the decision maker.
8. In the Minister for Immigration v Li [201] the plurality of the High Court said (paraphrasing) the decision maker has a genuinely free discretion which is an area within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that a decision maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested. Hence, the EPA submits that the Tribunal should not be substituting its view of the material for that of the EPA.

1. The EPA said there was a criticism made by Bisinella about the lack of detail in the EPA's RFI and a query was raised by the Tribunal if there were five different ways to inform the 'reasonably practicable' test, does the EPA have to answer all options? EPA submits the answer is 'no', the correct approach is to ask would it be legally reasonable on the content it needed to look at.
2. The EPA submits that Bisinella's argument that EPA conflated the application of BATT and discharging GED with reference to a statement that: 'BATC done', thus 'GED done'. EPA submits that was not the approach EPA took and Bisinella unhelpfully isolated measures from the wider context of the Assessment Report.
3. For example, the contents of the Assessment Report clearly sets out how the assessment was undertaken by the EPA with reference to:
   1. measures to comply with the GED;
   2. impact of the activity on human health and environment;
   3. principles of environment protection;
   4. best available techniques and technologies;
   5. whether the activity is otherwise consistent with the EP Act 2017 and Regulations.
   6. EPA submits that this methodology corresponds to the mandatory relevant considerations under section 69(3).[202]
4. Further, the EPA submits that it is not insignificant that EPA has consciously considered and referred to the EP Act 2017 and everyone agrees the best evidence of what the EPA did is in its reasons for decision. This is evidence that it faithfully considered the matters it was required to.
5. The EPA submits that to succeed that the EPA overlooked section 69(3)(a), Bisinella has to show was it in fact overlooked section 69(3)(a). Bisinella is not likely to be able to discharge this obligation when the Assessment Report comprehensively discusses the matters considered. The Assessment Report sets out the totality of the evidence before it and the requirement to refuse to grant a Development Licence if the circumstances under section 69(4) of the EP Act2017 apply.[203]

Complete answer to how GED was considered with the EU framework

1. The EPA submits that the Assessment Report considered the Assessment Framework,[204] and formed the view that:

[117] BATT for WtE under the EU framework specifies both mechanical and administrative controls - and does so in a risk-based approach. In this regard, BATT measures of the EU framework may also be considered generally consistent and complementary with the preventative approach of the GED. While the EU framework refers to BAT under its framework, this is compatible with BATT under the EP framework. These terms are used interchangeably throughout this report...

1. The EPA submits that paragraph [117] of the Assessment Report in particular is a complete answer about the relevance and application of the EU standards, that is: the content of the EU framework is 'considered generally consistent and complementary... to the preventative approach... GED' and one can see different expressions of compliance.
2. The EPA submits that when reading the reasons in the Assessment Report, the EPA expression of its conclusion is that it was satisfied PHI has sufficient understanding of sufficient state of knowledge including 2019 BREF and 2019 BATC and the EPA was so satisfied and there is no reason to look behind this.
3. The EPA submits that it is not the role of this Tribunal to look behind and fact check the conclusions which are stated in reasons in compliance with mandatory considerations and the legislation.
4. The EPA's submissions identified those parts in the Assessment framework section of the Assessment Report. This referenced the EPA's consideration of those matters against specific segments of hazards of risk.[205]
5. The EPA submits this shows the systematic and methodical way the EPA considered and adequately characterised in the Assessment of the Application, which included the measures that are reasonably practicable under section 69(3)(a). For example, the wet scrubber example is in point. Rather than going behind the EPA's conclusions given Bisinella has not raised any real focus about it. This shows that the onus should be on Bisinella to raise a real question of jurisdiction error. There is no suggestion that submissions in response to the RFI were not made by an informed operator.
6. With respect to the 2019 BREF, EPA submits that clause 2 is consistent with EP Act 2017 principles. How BAT is developed is from the collection of data and quality assurance.[206]The 2019 BREF is a comprehensive and rigorous document and how it came about is set out at Tribunal Book page 727. PHI took the Tribunal to chapter 4 of the 2019 BREF. EPA also considers it is appropriate to highlight chapter 5 of the 2019 BREF.
7. The EPA submits that the 2019 BREF in chapter 5 (Review of BAT reference documents (BREFs) states that BAT is a dynamic concept and so the review of BREFs is a continuing process. It states that new measures and techniques may emerge and introduced into industries.
8. The EPA submits that this demonstrates the complementary framework of the GED and the EU Framework with evolving state of knowledge to proactively manage risk and also demonstrates how a requirement for an actual proposal is inconsistent with GED because it suggests it is approved at a point in time and fixed. But what the EPA has properly done has provided for continuality - see for instance conditions DL_GO3 paragraphs (1), (2) and (4).
9. The EPA said it was the leading standard and there is quite significant technical knowledge in the 2019 BREF. For example, section 1 (Industry) contains information about the amount of waste in EU member states and their treatment (table 1.2), section 1.3 (plant sizes), section 1.4 (waste composition and process design), section 1.5 (key environmental issues), and section 2.5 (applied flue gas systems and control systems).
10. The EPA says what this proves is there is no one way for 'reasonably practicable' to reduce risk and EPA does not need to consider every single potential option. One just has to minimise the risk of harm to the extent reasonably practicable and the operator should have flexiblity to balance the risks. The operator knows the most about project and EPA did not have to investigate the potential, say for example, 408, other possible options.

Did EPA engage with the obligation of 'reasonably practicable'?

1. The EPA submits that Bisnella made a consistent criticism that PHI and the EPA were not engaging with the obligation of 'reasonably practicable' and meeting the lower end of BAT for emissions because to meet lower emission would mean the need for a wet system ahead of a semi dry or dry system despite being prohibitive on the economic costs.
2. The EPA says that the relevance in the measures without any appreciable risk, and on face of the emails[207] and provisions in 2019 BREF, EPA submits there were other trade-offs with a wet scrubber such as increased water consumption and the creation of an effluent waste stream.
3. All this material was before the EPA and the Tribunal should be satisfied that it is all taken into account by the EPA even if the EPA has not recited this line by line in its reasons.
4. Instead, the EPA submits that what Bisinella has done is pointed to the lack of a voluminous explanation why wet or semi /dry scrubber has been chosen or not, but all the information is there. Clearly, it is a conclusion that is open to the EPA and not a decision required to justify line by line in this way.
5. EPA submits that the obligation in section 69(3)(a) to take account of the measures is satisfied because the EPA did consider that semi-dry was capable for complying with GED and that should be end of the matter. It is an evaluative judgment but not holding itself as specialist knowledge. In effect, Bisinella is using the declaration proceeding to attack EPA's decision on its merits.
6. The EPA submits that the same can be said about BAT 37 regarding noise emissions. For example, like an application for a Dan Murphy or a nightclub, here there is a lot of material about actual research and data obtained from greater numbers in Europe. The EPA submits that it would be a mistake to assume for a project that is large that requires complex mitigation measures and because EPA is assessing risk, a matter in the EPA's discretion, there may be sub-areas or other areas of hazards. EPA submits that here it had sufficient information to make its decision and attacking the extent of commentary in the Assessment Report as Bisinella has done is not a proper basis to establish jurisdictional error.
7. The EPA submits with respect to its obligation under section 69(3)(a) of the EP Act 2017 that there is a substantial discretion to comply and it does not have to exhaust the universe of all possible options. For example, regarding the wet scrubber, failure to consider was not established. It was demonstrated that it was considered, weight given and evaluated regarding the competing costs and rejected by PHI and the EPA.
8. The EPA submits that the Tribunal should safely assume an appropriate course was undertaken unless Bisinella can displace the assumption.

Relevance that Application was 'preliminary' or 'indicative'

1. The EPA submits that the Tribunal should reject the contention that information in Application as being 'preliminary' or 'indicative' is too vague and uncertain to undertake the statutory task. The information can be preliminary but nevertheless adequate because it is based on robust and well understood robust assumptions and it is not likely to change the risk profile as assessed.
2. For example, Bisinella referred to caloric waste feedstock as indicative only, that is waste that is not sourced by same waste provider which failed 0.77 as preliminary R1 deficiency.
3. The EPA submits that the caloric data based on feedstock in other councils and industry data is sufficiently reliable based data and it is not Bisnella's role to displace this. This is because for example, Gippsland's 'red top' bin waste is not proved to be so different to 'red top' bin waste in Geelong. As the fact figure is preliminary or indicative, it is in same category and it is of no moment when there is no competing evidence of reliability of the EPA's conclusion. It is the best evidence there is and, in any evident, the EPA imposed appropriate conditions to ensure assumptions are validated formally and thoroughly undertaken. Thus, the complaint about composition of waste feed stock was rejected by EPA on its merits.
4. PHI was sent an RFI by the EPA and PHI responded that literature values could consider all objector submissions. EPA considered these objections and PHI's submission and EPA preferred PHI's submissions. That weighing processing process is for the merits and just because EPA has not gone into chapter and verse does not mean it has not taken the relevant risk assessment.

1. The EPA submits that matters with respect to jurisdictional error, novelty and discretion do not need to be taken into account. This is because it is not pleaded that the decision is 'null' or 'void' or 'invalid' and it cannot be assumed even if jurisdictional error is found, that the actions and decisions are tainted by jurisdictional error cannot still be used; error does not nullify actions of the decision. For example, there are cases regarding false imprisonment where executive decisions found to later be subject to jurisdictional error but have not always been the case that that is the finding to entitle the person to relief.

1. In conclusion the EPA submits:
   1. regarding the four grounds, none of grounds are established that the fundamental premise that there was inadequate information to undertake under section 69;
   2. 'preliminary' and 'indicative' references are of no moment - ground 3; and
   3. ground 4 can only be made out if there was a lack of detail.
2. Thus, EPA says the Tribunal may dispose of the declaration proceeding on this basis.

UNCERTAINTY OR IS PERMISSION SIGNIFICANTLY DIFFERENT FROM APPLICATION**

1. The third ground relied upon by Bisinella is set out below:
   1. In assessing the application, the EPA relied upon a conceptual design to establish that an appropriately designed project could achieve acceptable outcomes rather than assessing a detailed design to determine whether the facility as designed would achieve the required outcomes.
   2. As a consequence of its acceptance of this approach, the EPA imposed conditions on the licence which had the effect of deferring the determination of whether the facility as constructed was capable of achieving the required outcomes for an indefinite period.
   3. This approach was unlawful as:

1. Further, or alternatively, the purported decision to grant a development licence by the EPA was unlawful in that it was uncertain whether it was feasible to design a project which complied with the conditions (i.e., whether an approval had in substance been granted) or what a compliance project would entail.

1. Bisinella submits that:
   1. the EPA's purported decision to grant the Development Licence was not a decision to grant a licence for 'the activity the subject of the licence application' as required by section 69 of the EP Act 2017;
   2. a power to 'consent' or 'approve' an activity may include the power to consent to the activity subject to certain conditions; and
   3. section 54 of the EP Act 2017 specifically provides that the EPA may issue a permission subject to conditions.
2. In this regard, Bisinella submits that in the context of planning or environmental approvals, the case authorities have considered the validity of conditions, sometimes referred to as 'ambulatory conditions', which are designed to govern the implementation of the approved activity or require further assessments or approval of certain aspects of the activity.
3. It was said that the authorities explain that the imposition of such 'ambulatory conditions' may raise questions as to whether an approval power 'has truly been exercised at all', either because the activity defined by the conditions is different from the activity for which approval was sought or because a condition is ambiguous or uncertain.[208]
4. This approach was said to be developed in a series of NSW Court of Appeals consisting of Mison v Randwick Municipal Council (Mison),[209] Winn v Director-General of National Parks and Wildlife (Winn),[210] and Kindimindi Investments Pty Ltd v Lane Cove Council (Kindimindi)..[211]
5. Bisinella submits that in Kindimindi, the Court of Appeal summarised the approach adopted in those cases by saying that there would be no lawful consent to an application where the purported consent fell within one (or both) of two categories:

The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.[212]

1. After considering the three judgments in Mison, the Court said:

Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On the other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.[213]

1. Bisinella submits that the Court also noted that the test in Mison did not require it to be demonstrated that compliance with the impugned conditions would lead to 'an entirely different' development, but only that it would 'significantly' alter the development.[214] The Court acknowledged this was a question of degree and that the mere retention of 'practical flexibility' would not result in invalidity.[215]
2. Further, Bisinella submits that the approach taken in Mison and subsequent cases has also been followed in other jurisdictions in relation to other environmental approval regimes, although its application is necessarily influenced by the specific terms of the approval regime in question.
3. It was submitted that in Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (Buzzacott),[216] the Full Court of the Federal Court applied Mison to strike down a condition on an approval under the _Environment Protection and Biodiversity Conservation Act 1999 (_Cth).
4. Bisinella submits that in Buzzacott, that approval was granted to expand an existing mine subject to a range of conditions. These included:
   1. The conditions in this schedule apply to the construction of the rail line and infrastructure for electricity, water and gas, as described in the EIS.
   2. The rail line, water pipeline and electricity transmission lines must be constructed on the alignments shown in Figures N1.4 (a)-(f) of the Olympic Dam expansion, Draft environmental impact statement 2009, Appendix N - Terrestrial ecology, unless otherwise approved by the Minister under condition 71.
   3. If the Approval Holder proposes to construct the rail line, water pipeline or electricity transmission lines on a different alignment to that specified above, or if the Approval Holder proposes to construct the gas pipeline, the Approval Holder must prepare an infrastructure plan detailing the proposed alignment and submit the plan to the Minister for approval. The plan must demonstrate how the alignment has been selected to:
      1. minimise the impact on the values of places on the National Heritage List, the World Heritage List and/or the Register of the National Estate;
      2. avoid and/or minimise impacts on nationally Listed Species and Ecological Communities, and migratory species, and other areas of environmental significance;
      3. avoid impacts on groundwater dependent listed threatened
      4. species or Ecological Communities, and migratory species, in the Great Artesian Basin;
      5. avoid and/or minimise, to the extent practicable, impacts on significant Indigenous heritage values.