1. unless either party requests a costs hearing in its response or reply, the Tribunal will determine the application for costs and fees reimbursement 'on the papers'.

John Larkins and Jason Kane of counsel, instructed by Sofra Solicitors

Unlawful use for materials recycling, in breach of endorsed plans to planning permit TP0700182 and/or clauses 33.01 and 35.07 of the Moira Planning Scheme.

1. The respondents Australian Rubber Manufacturers Pty Ltd

and Sidebottom Group Pty Ltd must, in respect of the land at 7 & 25 Saxton Street West, Numurkah (the land), undertake each action set out in this enforcement order by the date specified in the order for that action. 2. The order applies jointly and severally in respect of the respondents. 3. Unless otherwise stated, an action must be undertaken to the satisfaction of the Moira Shire Council (in its capacity as responsible authority for the Moira Planning Scheme) and the Country Fire Authority. The responsible authority and the Country Fire Authority may each consider the views of the Environment Protection Authority in determining whether they are so satisfied. 4. Where a date is specified for an action to be undertaken, the relevant action must be completed by 4.00 pm on that date. 5. The responsible authority may, in writing, and in its absolute discretion, extend any date for the undertaking of an action. The responsible authority may extend a date of its own volition, or in response to a written request from the respondents outlining the reasons why an extension of time is requested. 6. For the avoidance of doubt: * any extension of time granted under Order 5 for the completion of a specified action does not affect the date by which any subsequent action must be undertaken; and * the requirement to provide an Emergency Management Plan and a Fire Fighting Plan as part of the actions to be undertaken, and any delay in the finalisation of those plans by the respondents or the approval of the plans by responsible authority or the Country Fire Authority, does not affect the subsequent dates by which the removal of tyres and other materials must be undertaken. 7. Where an action refers to the an area referred to on 'the Site Plan', it is a reference to the following plan:

1. The responsible authority must provide each respondent with a larger scale (at least A3) version of the Site Plan.
2. The respondents must provide tracking information regarding the lawful removal of all materials (including tyres) forming part of the use of the land for materials (e.g. where has the material has gone). Without limiting this requirement, where an action refers to a requirement to 'lawfully dispose' of materials (including tyres), it will be sufficient compliance with that action if the respondents move those materials to a secondary storage location on other land pending their ultimate disposal, provided the respondents satisfy the responsible authority and the Country Fire Authority, in advance and in writing and within the absolute discretion of those authorities, that:
   • the secondary storage location has lawful use and development rights for such storage under any relevant planning scheme; and
   • the secondary storage location has a suitable Emergency Management Plan and Fire Fighting Plan relevant to the materials to be stored.
3. For the avoidance of doubt, the land at 847 Numurkah Road, Katunga, which is the subject of the enforcement order in proceeding P1250/2013, is not to be used as a secondary storage location under Order 9.
4. The actions to be undertaken by the respondents are as follows:

Remove from the land all combustible items (e.g. wood pallet, branches, unused plastics wraps or similar items) from the tyres storage area and dispose of items at an approved facility or, if required, relocate items at a safe distance outside the tyre storage area.

Provide the following administrative measures for approval by the responsible authority and the Country Fire Authority:

• an Emergency Management Plan (prepared by a suitably qualified person) for 7-25 Saxton Street West Numurkah; and
• a Fire-Fighting Plan including the location and certification of a suitable Water Static Supply (e.g. decontamination of the tanks) to be fitted with approved CFA Storz fittings and which satisfy the requirements of AS2419.1-2005.

In completing these measures, the respondents must address the matters set out in the letter from the Country Fire Authority dated 24 March 2014 and the matters contained in sub-paragraphs 1.3, 1.4 and 1.5 on pages 14 and 15 of the Country Fire Authority's written submissions to the Tribunal dated 30 June 2014.

The Country Fire Authority has nominated Darrin Dohrman, Fire Safety Officer (Hume Region), to liaise with the respondents if any actions or matters set out in the letter and written submissions require clarification prior to the submission of the Emergency Management Plan and Fire Fighting Plan for approval.

In completing these measures, the respondents must also address the matters set out in the letter from Russell Kennedy solicitors (on behalf of the responsible authority, Moira Shire Council) dated 26 March 2014.

For the preparation of the Emergency Management Plan, the responsible authority and the Country Fire Authority have indicated that they have no objection to Colin Fulton being the 'suitably qualified person' to prepare the plan. The certification of the water static supply as being free from contamination will require certification from a person, other than Colin Fulton, who is suitably qualified or experienced in water quality testing.

Remove from the land and lawfully dispose of all materials located along the southern and western part of the tyre storage area as referred as "A" and "+ signs" on the Site Plan.

Remove from the land and lawfully dispose of all rubber materials located along the eastern and northern part of the tyre storage area as referred to as "B" and "horizontal lines" on the Site Plan.

Create a bunding/containment wall of no more than 300 millimetres in height to the southern boundary, to retain discharge of contaminated water onto the irrigation channel. The bunding/containment wall to be constructed to the satisfaction of the responsible Authority and the Goulburn Broken Catchment Management Authority. The construction must follow sediment control principles outlined in Construction Techniques for Sediment Pollution Control (EPA 1991).

Remove from the land and lawfully dispose of all materials located along the southern part of the tyre storage area as referred to as "C" and "triangle signs" on the Site Plan.

Remove from the land and lawfully dispose of all materials forming every second row of tyre stockpiles in the tyre storage area as referred to as "D" and "wavelength signs" on the Site Plan.

Remove from the land and lawfully dispose of all remaining materials including, but not limited to, tyres, rubber, bricks, scrap metal and other similar waste materials.

Throughout the staged removal process, all vegetation within 20 metres of tyre stockpiles must be maintained between 5-10 centimetres in height.

No new materials forming part of the use of the land for materials recycling, including but not limited to rubber materials, must be brought onto the land.

No new combustible materials must be kept within 20 metres of tyre stockpiles.

Unlawful use for materials recycling, in breach of clause 35.07-1 of the Moira Planning Scheme.

1. The respondents Australian Rubber Manufacturers Pty Ltd

and Grain Shed Investments Pty Ltd, must in respect of the land at 847 Numurkah Road, Katunga (the land), undertake the actions set out in this enforcement order by the date specified in the order. 2. The order applies jointly and severally in respect of the respondents. 3. An action must be undertaken to the satisfaction of the Moira Shire Council (in its capacity as responsible authority for the Moira Planning Scheme) and the Country Fire Authority. The responsible authority and the Country Fire Authority may each consider the views of the Environment Protection Authority in determining whether they are so satisfied. 4. The actions to be undertaken by the respondents are that, by 4.00 pm on 22 August 2014, the respondents must: * cease the use of the land for the purpose of materials recycling. * remove from the land and lawfully dispose of all materials forming part of the use of the land for materials recycling including, but not limited to the stockpiles of tyres (as a whole, or shredded) and other rubber products stored on the land. 5. The respondents must provide tracking information regarding the lawful removal of all materials (including tyres) forming part of the use of the land for materials (e.g. where has the material has gone). Without limiting this requirement, it will be sufficient compliance with the requirement to 'lawfully dispose' of materials (including tyres), if the respondents move those materials to a secondary storage location on other land pending their ultimate disposal, provided the respondents satisfy the responsible authority and the Country Fire Authority, in advance and in writing and within the absolute discretion of those authorities, that: * the secondary storage location has lawful use and development rights for such storage under any relevant planning scheme; and * the secondary storage location has a suitable Emergency Management Plan and Fire Fighting Plan relevant to the materials to be stored. 6. For the avoidance of doubt, the land at 7 & 25 Saxton Street West, Numurkah, which is the subject of the enforcement order in proceeding P1249/2013, is not to be used as a secondary storage location under Order 5.

1. Moira City Council (the responsible authority) seeks enforcement orders to deal with a continuing non-compliance by the respondents in the storage of materials (principally tyres) and use of land for materials recycling at two sites in and near Numurkah, in contravention of the Moira Planning Scheme. The Country Fire Authority (CFA) was joined as a party at its request, and supports the making of enforcement orders. The Environment Protection Authority (EPA) has also been involved in site inspections and the preparation of draft enforcement orders, and attended the final hearing in an observer capacity.
2. The proceedings have been the subject of two interim enforcement orders for each site, both made by consent, but the respondents have not fully complied with any of these interim orders.
3. In support of the applications for final enforcement orders, the responsible authority relies upon the extensive affidavit evidence of Patrick Dubuc, its development compliance officer. The respondents now concede the contraventions of the Moira Planning Scheme, and did not require Mr Dubuc to give oral evidence or to be cross-examined. The respondents led no material evidence to the contrary. Their evidence was essentially about factors they consider relevant to the time required to bring both sites into compliance with the planning scheme.
4. It is therefore unnecessary to set out the extensive background material that underscores these proceedings. I am satisfied on the basis of Mr Dubuc's various affidavits over the course of the past year that the alleged breaches of the Moira Planning Scheme are made out, and are continuing. The respondents have done little to rectify the breaches, and have failed to comply even with orders to which they consented. I have made some general comments about this, in the reasons that accompanied my orders of 3 April 2014. I adopt those comments for these reasons also.
5. The breaches are serious, not least because of serious fire safety issues at both sites (and particularly at the Numurkah site bordering on that township) that has led to the involvement of the CFA in the proceedings. The respondents' explanations for their limited attempts at compliance to date, or their inability to meet previous time limits, have changed at each hearing to the point where they ring a little hollow.
6. The responsible authority's applications were first made to the Tribunal over a year ago, and the matter now requires some finality.
7. As I have indicated, the respondents now concede the contraventions of the Moira Planning Scheme. At the 'final' hearing, the responsible authority and CFA sought orders for all tyre stockpiles and other material to be removed from the Katunga property within 30 days, and the staged removal of the tyre stockpiles and other materials from the Numurkah property over 180 days. The respondents initially proposed a convoluted set of orders requiring Tyre Removal Management Plans, and with removal of materials from Katunga by 15 September 2014 (i.e. within about 75 days) and Numurkah by 29 July 2015 (i.e. within a year). At the hearing, the respondents suggested a 9-month timetable, subject to the ability to seek any reasonable extension.
8. At first blush, given what has transpired, the time limits proposed by the responsible authority and CFA appear reasonable - even perhaps generous in relation to the Numurkah site. Equally, though, I accept the affidavit evidence of John Cronin, and the submissions of the respondents' counsel, that the removal or relocation of large stockpiles of tyres is very expensive and logistically difficult. Mr Cronin is now apparently exploring an option to relocate his materials recycling business to Moama in NSW, and ultimately to transport the tyres there for processing. That would take time. But there have been several other options proposed by Mr Cronin over the past year, which he has been given time to pursue, and which have not proceeded or which have been abandoned. The respondents have already been given many opportunities to get their affairs in order.
9. I agree with the responsible authority that this matter needs finality, and I agree with the CFA that a serious fire safety risk cannot be allowed to continue indefinitely. I therefore propose to make enforcement orders setting a time period for compliance that accords more closely with that proposed by the responsible authority and CFA. Subject to comments below, I agree generally with their respective submissions in support of those time limits. Conversely, the respondents provided little objective rationale for the extended time limits they sought.
10. If the Moama option becomes a reality, and a relatively short extension to these time limits is desirable to facilitate that option, I have made provision for the responsible authority (in its discretion) to grant an extension of time. Additionally or alternatively, the respondents could make application to the Tribunal to vary the enforcement order. In saying this, though, the respondents should have no expectation that the responsible authority or the Tribunal will extend time, other than in very exceptional circumstances and where there is demonstrated good faith by the respondents in any actions to that time.
11. I have said that the enforcement orders I have made 'accord more closely' with that proposed by the responsible authority and CFA. I have varied their draft orders to add further clarification or detail where I consider it appropriate, or to reference other material - in particular, based on the detailed written submissions of the CFA about what is required in the Emergency Management Plan and Fire Fighting Plan. I have also varied some of the time limits slightly in favour of the respondents. In particular:
    • For certainty, I have fixed dates, rather than relying on things to be done in 30 days, 90 days etc, and 'rounded' these fixed dates.
    • I consider 30 days a relatively short time for the removal of all tyres and materials from the Katunga site, and have allowed a slightly longer time, until 22 August 2014, to allow for contingencies (e.g. service of this order, weather delays etc).
    • Despite the CFA's legitimate concerns about fire safety, I consider that the 30 days to rectify the Emergency Management Plan and Fire Fighting Plan is relatively short, particularly as it may require certification by external experts sourced from outside Numurkah. The respondents indicated they would consent to do this by 15 September 2014, ahead of the 2014/15 fire season. The responsible authority in good faith accepted this proposal, and I consider that time limit reasonable having regard to the other matters the respondents must also attend to in the short term. In saying this, I trust that the CFA will assist the respondents in finalising outstanding matters with these plans. More particularly, the respondents must appreciate that the additional time to prepare these plans does not affect the ultimate timetable for removal of tyres and other materials from the sites.
    • I have added an opportunity for the respondents to seek an extension of any time limit, although this is subject to the comments I have made earlier in these reasons.
12. The responsible authority sought costs against the respondents. I have made provision for this to be dealt with 'on the papers'. The CFA did not seek costs.