1. Any party may request that the administrative mention be converted to a practice day hearing. The relevant form is available at the Tribunal's website - www.vcat.vic.gov.au/documents/forms/practice-day-request-form

Council relied on an affidavit sworn by Hendrik Bezuidenhout, Executive Manager, Community Planning and Development, Moorabool Shire Council but did not call the deponent to give evidence or be cross-examined.

Jamie Barkler of Counsel by direct brief (from EPA legal department)

The EPA relied on an affidavit affirmed by Anton Ponomarenko, Team Leader, Environment Protection - South West region, Environment Protection Authority but did not call the deponent to give evidence or be cross-examined.

1. Moorabool Shire Council ('Council') applied under section 431 of the Environment Protection Act 2017 (Vic) ('EP Act') for review of Environmental Action Notice EAN-00008400 (the 'Notice') issued by the Environment Protection Authority ('EPA') on 10 June 2025 under section 274 of the EP Act.
2. The Notice requires Council to remove approximately 1,000 to 1,250 Dissolved Acetylene (DA) Cylinders contained on pallets located in two trailers parked on the nature strip of 210 Lerderderg Park Road, Merrimu ('premises').
3. Council currently seeks a stay under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') of the operation of the decision of the EPA to issue the Notice. It relies on the following ground/s of review:

There is no proper basis for serving the Environmental Action Notice as:

- Council has not undertaken any activity including but not limited to storage as it relates to the waste, nor did it initiate the placement of the waste on the land.

- the service of the EAN is in breach of the EPA's statutory duties in that the operation from which the waste came has been under active surveillance and investigation by the EPA.

- Council is not the source or responsible party for the illegal dumping or storage of the waste.

1. The EPA opposes the grant of a stay of the operation of its decision.
2. Having considered the submission of the parties, given the particular circumstances and facts of the matter, we consider it is not in the community interest to grant the stay. Our reasons follow.

1. By 25/07/25 you must remove the following from the premises (as described in Appendix A), to a place that is permitted to accept such waste:

- All pallets of DA Cylinders which are loaded on the white coloured tri axle pan trailer.

- All pallets of DA Cylinders which are loaded on the tri axle taut liner.

You must report to EPA:

R1. By 01/08/25 you must report to EPA on how compliance with General Requirement 1 of this environmental action notice was achieved.

On 9 March 2025, EPA received a report of two trailers unlawfully parked on the nature strip of 210 Lerderderg Park Road MERRIMU ("the premises" as described in Appendix A).

On 10 March 2025 EPA Officers attended the premises and observed the following:

- white coloured tri axle pan trailer, bearing the Victorian registration number 79539S ("white coloured tri axle pan trailer") that was reasonably believed to contain approximately 20 pallets of Dissolved Acetylene (DA) Cylinders.

- tri axle taut liner, bearing signage "UNIT 28" on the rear trailer door and a yellow and black sign bearing the name "LONG VEHICLE" fixed to the rear bottom section of the trailer ("tri axle taut liner") that was reasonably believed to contain approximately 30 pallets of DA Cylinders.

EPA Officers have estimated that each pallet may store approximately 20 to 25 DA Cylinders. The DA Cylinders stored on the trailers are predominately E & G sizes, and appear to contain a calcium silica inert solid mass, some with an asbestos binder and others with a fibreglass binder. The DA Cylinders appear to be de valved, depressurised, and purged of any acetylene residue.

Acetylene is a colourless gas which is widely used as a fuel and a chemical building block. It is the hottest of all fuel gases and is used for a number of applications including welding, plastics and acrylic acid derivatives and portable lighting. An acetylene cylinder has a different design from most other gas cylinders. It consists of a steel shell containing a porous mass. Asbestos might be located in the porous mass, the neck and base of the cylinder, depending on where it is manufactured. The acetylene gas in the cylinder is dissolved in acetone which is absorbed by the porous mass. Like other compressed industrial gases, acetylene can be hazardous to the user and for those nearby if not handled and used correctly.

On 28 March 2025, Moorabool Shire Council ("Council") confirmed the following: - that Council own the premises; and - that the premises is Council land road, which indicated reference RDS_004673 with Asset ID reference number "RDS 004673" as set out in the Moorabool Shire Council Road Management Plan 2021-2025.

Classification of the waste located at the premises:

- The DA Cylinders are waste because they are discarded, rejected, abandoned, or unwanted.

- Further, the DA Cylinders are industrial waste because they arose from commercial, industrial or trade activities undertaken by BOC Limited.

- The DA Cylinders have been found to no longer be fit for use, as they are depleted and contain only residual gas.

- Schedule 5 of the Environment Protection Regulations 2021, classifies items fitting the description in Item 80, Waste Code N100 (rigid steel or plastic containers with an original volume less than 200 litres contaminated with reportable priority waste (transport)) as reportable priority waste (transport) and reportable priority waste (transactions) (as well as priority waste).

- The substances believed to be in the DA Cylinders are acetone, dissolved acetylene and a monolithic mass containing chrysotile asbestos. Under the Australian Code for the Transport of Dangerous Goods by Road & Rail (2022, Edition 7.8), acetone is identified as Class 3 dangerous goods (Flammable liquids) and chrysotile asbestos as Class 9 dangerous goods (Miscellaneous dangerous substances and articles).

- Item 1, Table 2 (Hazardous properties assessment criteria) in EPA Publication 1827.2 - Waste classification assessment protocol states "if any constituent of the waste or the waste itself can be classified as a class of dangerous goods as per Appendix A", then the waste is considered a very high hazard and is classified as reportable priority waste (transaction) and reportable priority waste (transport).

- Class 3 dangerous goods (Flammable liquids) and Class 9 dangerous goods (Miscellaneous dangerous substances and articles) are identified in Appendix A of EPA Publication 1827.2, and therefore acetone and chrysotile asbestos are considered to be reportable priority waste.

- DA Cylinders which have been discovered at the premises meet the above descriptions and are therefore reportable priority waste.

1. Section 274(1) of the EP Act provides that the EPA 'may' serve an environmental action notice on various categories of recipient if it reasonably believes that one of the specified circumstances exist.
2. The EPA relies on the ground in sub-section (1)(c), that industrial waste is at a place or premises unlawfully.
3. Section 274(2) enables a notice to be issued to 'any of the following':

(a) the person who the Authority or authorised officer reasonably believes caused or permitted the circumstances which are the subject of the notice (the relevant circumstances);

(b) the current owner or occupier of the land at which the relevant circumstances exist;

(c) the owner or occupier of the land at which the relevant circumstances exist, at the time the relevant circumstances first came into being.

1. The EPA served the notice on Council under sub-section (b).
2. More broadly, we note that in section 294, the EP Act also makes provision for the EPA to elect to clean up pollution itself.
3. Council submitted that the EPA should have invoked this provision on the facts of this case in preference to issuing the Notice to require Council to undertake lawful disposal.

1. Section 50 of the VCAT Act pertains to the effect of an original decision pending review.
2. Section 50(3) provides:

The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

1. Council seeks a stay of the operation of the Notice since the date for removal of the pallets of DA Cylinders is specified as 25 July 2025.
2. This would be prior to the date the Tribunal could provide a merits hearing and final determination in the proceeding.

1. The power to grant a stay is discretionary, and is not limited by legislative criteria.
2. However, potentially relevant considerations have been identified by case law as a guide to the exercise of discretion. These include:
   • Would the failure to grant a stay render the review proceeding nugatory?
   • Is there a serious question to be tried?
   • Is it in the community interest to grant a stay, having regard to potential prejudice to the applicant for review and the public interest?
   • When would the review proceeding be likely to be heard and determined?
3. Both parties accepted that these questions provide an appropriate basis for our consideration of the stay application, but took issue with their application to the facts before us.
4. In addition, it is highly relevant to consider the legislative regime of the EP Act in determining the stay application. This was confirmed in Brimbank CC v Environmental Protection Agency[2] in the following terms:[3]

The provisions of the EP Act that set out the purpose and principles of the EP Act, the objective and function of the EPA and the duties imposed on the Victorian community form part of the relevant statutory context in which the Tribunal considers and determines an application to stay a statutory notice issued by the EPA under that Act.

The advancement of the purpose and principles of the EP Act must be balanced against the existence of an opportunity to seek an external review of a decision to issue a statutory notice under the EP Act and the opportunity to seek a stay of the operation of that notice until that external review is determined. This balance requires consideration of the particular facts and circumstances of each matter and the relative positions advanced by parties in the application when exercising the discretionary power conferred on the Tribunal under s.50 of the VCAT Act.

1. It is important to record the concessions made by Council in respect of the Notice.
2. Council accepted that it is a proper entity against whom an environmental action notice could be issued under section 274(2)(b) of the EP Act.
3. Likewise, it did not contest the notion that the DA Cylinders constituted 'industrial waste' for the purpose of section 274(1)(c) of the EP Act.
4. Instead, the key submission made by Council was that it was 'profoundly unfair' to issue the Notice against Council, and that the correct or preferable decision on the merits was to set aside the Notice since:
   1. an environmental action notice should have been issued to the polluter, not Council; or
   2. the EPA should have exercised its powers to clean up the pollution itself (and potentially to recover the cost as a debt from the polluter) instead of exercising its power under section 274 of the EP Act.
5. Council also took issue with some of the remarks attached to the Notice which referred to 'storage' of industrial waste on the premises.
6. In summary, it submitted it was not 'storing' the waste, since this activity requires an active component, which was absent on the facts.
7. In its submissions filed with the Tribunal pre-hearing, Council alleged that there was no evidence before the Tribunal as to the extent of risk that the DA Cylinders present to the community.
8. It subsequently explained that this submission needed to be modified in response to the affidavit filed on behalf of the EPA, more specifically, exhibit AP-2 which contains the advice of Mr Mittonen, the EPA's Principal Health Risk Advisor, Chemicals.
9. Council explained that it had put traffic cones around the trailers as requested by the EPA and understood that the EPA has placed a camera at the nature strip opposite 204 and 210 Lerderderg Park Road.
10. It maintained its position that the EPA had not otherwise taken urgent or immediate steps to 'resolve the situation'. It suggested this indicates the EPA has not demonstrated to date that there is an 'immediate risk to public health and safety' as alleged in EPA correspondence.
11. As to the question of community interest, Council submitted it was not in the community interest to require Council to manage a situation created by the waste handler and storer, and that this could encourage further unauthorised waste disposal on public land. In its view, this would constitute a 'shift in responsibility'.
12. Significantly, this was qualified in submissions for Council at the hearing to be 'subject to resolving the question of immediate risk'.
13. We queried whether it may be possible to grant a stay subject to conditions to reduce or manage risk. Council indicated it would be 'keen' to implement such measures, potentially including signage, fencing or the like.
14. We explore the potential efficacy of these options below when considering the community interest.

1. After the stay hearing had concluded, on 15 July 2025 Council submitted an affidavit affirmed by Derek Madden, Chief Executive Officer, Moorabool Shire Council of the same date.
2. The affidavit pertains to a telephone call made to Mr Madden from the son of a potentially affected landowner, discussing the effects of recent media coverage and alleged actions or inaction by the EPA.
3. It also refers to a phone call between Mr Madden and the Chief Executive Officer of the EPA in respect of alleged risk and timing.
4. Mr Madden concluded that 'the community is now being asked to bear the cost of rectifying a situation that, in my view, stems from the EPA's failure to manage a site under its knowledge and oversight'.
5. The EPA responded that the affidavit is not relevant to the application for a stay, and that it should not be received in the interests of fairness and orderly conduct of the proceedings.
6. It confirmed that if the Tribunal was minded to receive the affidavit but treat is as not relevant to the application for a stay, the EPA would not seek an opportunity to be heard in respect of the affidavit.
7. For the record, we have not seen or sought out any relevant media coverage in respect of this issue and it was not offered to us in evidence at the stay hearing.
8. The further affidavit was submitted without leave of the Tribunal, with a request by Council that the Tribunal not determine the stay application until it was submitted.
9. The correct course of action after the stay hearing would have been to disclose the identity of the potential deponent and to foreshadow the contents of the affidavit as a threshold issue to enable the Tribunal to determine whether or not to grant leave to file it.
10. Its contents are not matters that Council was duty-bound to inform the Tribunal and EPA about, as part of the Model litigant rules or otherwise.
11. Further, we consider it was inappropriate to seek to adduce evidence of the CEO's opinion of who should bear the risks and costs associated with a clean up, especially in circumstances where these matters were the subject of both submissions and evidence at the hearing.
12. In any event, having read its contents, we do not consider the affidavit expands the relevant considerations already before us or affects our conclusions on the stay application.
13. For this reason, we do not consider there is any need to facilitate a reply from the EPA as a matter of fairness in all the circumstances.

1. The EPA acknowledged that a refusal to grant a stay would likely render the review proceeding nugatory, in the sense that the date for compliance with the Notice would have passed before the proceeding could be heard and determined on its merits.
2. Notwithstanding, it emphasised that the risks associated with allowing the DA Cylinders to remain on the premises were unacceptable to human health and the environment and that this should lead to a refusal of a stay.
3. The EPA submitted that key risks included a traffic accident with impact to the trailers or interference by third parties, such as by tampering or arson.
4. The EPA explained that the purpose of section 274 was remediation of pollution, rather than punishment.
5. It advised the Tribunal that it could not responsibly have issued an environmental action notice against the alleged polluter because it was a company that has gone into bankruptcy and associated directions it has issued have not been complied with. In its view, this weighed against the prospect of any such action having the desired practical effects. It sought to 'make good' this proposition through Mr Ponomarenko's affidavit.
6. When we queried why the EPA had not taken steps such as securing the contents of the trailers or potentially marking them with signage such as 'dangerous goods', its response was that it had elected to require the removal of the DA Cylinders as a complete response.
7. The EPA also indicated in response to our questions that it was continuing with a criminal investigation in respect of the alleged polluter, in parallel with pursuing the Notice.

Would a denial of a stay render the review proceeding nugatory?

1. This is often referred to as 'the dominant principle' in case law.[4]
2. In principle, we accept case authority endorsed by both parties that a higher strength of satisfaction is generally required where an interlocutory application would dispose of a proceeding entirely.[5]
3. In this proceeding, it is highly likely that the denial of a stay would render the review proceeding nugatory unless the EPA elected to extend the date for compliance.
4. The Notice currently requires complete removal of all pallets of DA Cylinders by 25 July 2025.
5. The further requirement for reporting on how this has been achieved by 1 August 2025 is not materially in dispute.
6. The Tribunal has listed a compulsory conference in this proceeding on 8 September 2025 and a merits hearing on 25 & 26 November 2025.
7. While it may be possible to vacate the compulsory conference and to bring forward the hearing date, it would still be a number of weeks away to enable parties to prepare adequately and given Tribunal member resources.
8. Therefore, if a stay was not granted, Council would be obliged under the Notice to remove and dispose of the DA Cylinders lawfully before the Tribunal could consider the merits of the proceeding.

1. Council's grounds of review raise issues in respect of whether there was a proper basis for the EPA to serve the Notice on it.
2. More particularly, it alleges:
   • it is not responsible for the dumping or storage of the waste; and
   • the EPA has breached its statutory duties in not intervening before the waste was relocated onto the premises.
3. The EPA denied that there was any serious question to be tried in the proceeding, if it progressed to a merits hearing.
4. We are cautious not to 'prejudge' the merits of the application for review in the context of this stay application.
5. However, we find that Council has not identified any arguable serious question to be tried in the proceeding.
6. Council does not dispute that:
   • it was a lawful category of recipient under section 274(2)(d),
   • the DA Cylinders constituted 'industrial waste' for the purpose of section 274(1)(c); or
   • that the Notice did not comply with applicable legislative requirements in sections 274(3) and (4).
7. Government has made a policy decision expressed within the EP Act that the power for the EPA to issue a notice derives from the fact industrial waste is located on land. The recipient is identified in this instance by its status as owner or occupier of that land.
8. Significantly, the regime established by the EP Act does not establish a precondition of knowledge, blameworthiness or other responsibility on a recipient of an environmental action notice.
9. For this reason, the first ground and third ground alleged by Council - that Council did not store or place the waste on the land and that Council is not the source or responsible party for the illegal dumping or storage of the waste - are largely tangential to the power to issue the Notice lawfully.
10. To the extent Council submits there has been no 'storage' of industrial waste at the premises, it is clear that the power exercised by the EPA to issue the notice stems from section 274(1)(c) of the EP Act. It is contingent on the circumstance that 'industrial waste is at a place or premises unlawfully'. This section does not refer to the need for any form of activity, such as storage, or otherwise.
11. To the extent that there may have been reference to storage in the remarks attached to the Notice, we do not consider this to form a central part of the decision under review having regard to the clear legislative power invoked by the EPA.
12. It appears that the issues raised by Council as to whether issuing the Notice against it as the sole recipient was the correct and preferable decision go to the discretion of the Tribunal.
13. However, it is important to have regard to the relatively narrow jurisdiction of the Tribunal in a review proceeding under section 431 of the EP Act.
14. Section 51 of the VCAT Act confirms that the decisions available to the Tribunal are to set aside, vary or affirm a notice.[6]
15. At its core, Council's position is that the Notice should be set aside because there is a more suitable recipient or the EPA should exercise its own powers of clean up.
16. The Tribunal does not have the power in this review proceeding to join another respondent to the Notice or to direct that a supplementary notice be issued to any person, such as the alleged polluter.
17. In any event, Council did not dispute the evidence of the EPA that it could not reasonably have served an equivalent notice on the alleged polluter in the particular circumstances of this case.
18. The Tribunal's powers in this proceeding do not extend to directing the EPA to exercise its powers to clean up or facilitate a clean up under section 294 of the EP Act.
19. We also note that it is significant that the EPA's power under that section is discretionary. It is specifically expressed to be 'notwithstanding anything to the contrary in this Act'; including the power to issue an environmental action notice in this instance.
20. To the extent that Council suggests that the EPA may have breached its duty in not preventing the deposit of industrial waste on the nature strip (whilst in the midst of an active investigation), this would not be a determinative issue in the review of the Notice since it is not reviewable by the Tribunal in the proceeding.
21. In addition, Council was also unable to point to any relevant source of this alleged breach of statutory duty when queried.

1. We accept that Council is in an invidious position.
2. It is inherently exposed to notices such as this by virtue of its control of public land, including roads under Council control or management.
3. As explained, the provisions of the EP Act extend to an owner or occupier of land, irrespective of its liability for the waste.
4. We asked Council whether there was a facility in Victoria that was authorised to receive this industrial waste, and what the approximate cost would be.
5. It responded that there is a single facility with relevant authorisation to accept this form of reportable priority waste.
6. It had obtained a quote of approximately $500,000 to deposit the DA Cylinders at this facility.[7] This would be a cost to Council.
7. Consistent with the principle that 'polluter pays' in section 17, section 274(6) then provides a potential opportunity for the recipient of a notice, including a municipal council, to recover the money expended as a debt in a relevant court.
8. It does so in the following terms:

A person in management or control of land may recover in a court of competent jurisdiction, as a debt due to the person, any reasonable costs incurred in complying with an environmental action notice, including any reasonable costs incurred by the person in taking action under this section, against any person responsible for causing or contributing to contamination of the land.

1. This is an integral part of the legislative scheme which is intended to strike an appropriate balance between effective outcomes and ultimate responsibility.
2. We observe that it has not been conclusively demonstrated that this power would be unavailable to Council.
3. It is also open to the parties to consider the prospect of negotiating to share the cost of disposal, consistent with the principle of shared responsibility in section 16 of the EP Act.

1. There is no dispute between the parties that the DA Cylinders are appropriately categorised as dangerous goods and reportable priority waste (transport).
2. The Notice estimates a total of 1,000 to 1,250 DA Cylinders located in two trailers at the premises.
3. It is understood that the trailers have vinyl curtains and there is no current signage indicating that the trailers contain dangerous goods.
4. Photographs of the external and internal of the trailers were provided by the EPA/Council and show:
   • how the DA Cylinders are located within the trailers; and
   • that the DA Cylinders are not individually secured or contained, as would be expected for the appropriate storage of this class of dangerous goods.
5. The EPA gave some examples of hazards associated with the DA Cylinders including:
   • flammable gases that could ignite and cause fires and explosions; and
   • flammable gases that could leak into the trailer, displace the oxygen in the atmosphere and cause:
     • asphyxiation if gas leak is significant; or
     • mild irritation (eyes and sensory) if the leak is minor.
6. The EPA submitted that, were the DA Cylinders to remain in situ for 6 months or thereabouts (as would seem the likely result of a stay), it would present completely unacceptable risks to human health.
7. It relied on the affidavit of Anton Ponomarenko who is the Team Leader, Environment Protection - South West Region. His evidence was that the waste staying in place for months would present a risk to human health and/or the environment for the following reasons:
   1. a collision involving a vehicle and trailers carrying the DA Cylinders could potentially result in a fire or explosion;
   2. arson involving DA cylinders has the potential to trigger a fire or explosion;
   3. entering a trailer with DA cylinders (confined space) with a significant gas leak may result in asphyxiation, while a minor leak could cause eye irritation and discomfort to the sensory system;
   4. asbestos may be present within the porous mass, as well as in the neck and base of the DA cylinder. Any disturbance to these components may result in the release of airborne asbestos fibres.
8. Mr Ponomarenko's evidence was that his reasonable beliefs outlined in relation to the risks to human health and the environment are informed by specialist advice sought from Antti Mikkonen, Principal Health Risk Advisor (Health Advisory). That advice was provided in the form of an email exchange dated 21 May 2025 from Mr Mikkonen to Charles Muscat, Senior Environment Protection Officer ('AP-2')[8]. Mr Mikkonen's email provided the following 'summary of the risks associated with the DA cylinders contained in the back of a truck which is inappropriately stored on the side of a road':
   • The primary risks posed by inappropriate storage of DA cylinders are explosion/fire which could occur in the instance of a vehicle crashing into the parked truck or arson. The likelihood is difficult to estimate but an explosion or fire could have the most potential to cause harm (from the possible risks identified).
   • Secondary risks with potential to cause harm would be someone entering the confined space where the cylinders are stored and the possibility of asphyxiation (if gas leak is significant) or mild irritation (eyes and sensory) if the leak is minor.
9. A hazard is something that has the potential to cause harm, while a risk is the likelihood that a hazard will actually cause harm, along with the severity of the potential consequences. Risk is quantified by multiplying the likelihood of an event occurring by the potential consequences if it does occur.
10. Both parties provided submissions regarding the likelihood (the probability or frequency) of those hazards occurring. The likelihoods were only expressed qualitatively (i.e. likely and less likely) but were not expressed quantitatively (e.g. as a percentage chance of occurrence).
11. For example, Council described the likelihood of a car crash to be lower and the likelihood of vandalism to be higher given the remoteness of the premises, which was described as follows:
    • there are few residential properties nearby;
    • Lerderderg Park Road is a dead-end just past 204/210 Lerderderg Park Road and therefore has limited traffic; and
    • any traffic entering Lerderderg Park Road from the main road, until the EPA moved the camera, would have been observed by the EPA camera placed at the intersection of Lerderderg Park Road and Gisborne Road.
12. In terms of the consequence (the impact or effect) of the hazard if it occurs, neither party provided any quantitative submissions regarding consequence (e.g. quantifying the extent or potential for death, injury, damage, or financial loss). Some qualitative submissions were made describing consequence of the DA cylinders being damaged in a car crash or via arson as 'catastrophic' or 'very high', however these qualitative descriptions were not linked to any formal framework or definitions to provide a reference for the severity described.
13. Council were keen to discuss potential conditions on a stay which might sufficiently allay the present risks that the DA Cylinders located in two trailers at the premises pose, should a stay be granted. Some of the mitigation measures proposed by Council included:
    • installation of traffic management devices including chevron signs and cones, road signs noting a hazard;
    • installation of cameras (specifically, moving the existing cameras located at the nearby intersection to be adjacent to the premises) to monitor the premises and provide a deterrent to tampering;
    • securing the trailers by closing the doors, installing door locks, and repairing any damage to the vinyl curtains; and/or
    • bringing the hearing date forward to avoid any potential hazard associated with increased temperatures or risk of bushfire in summer.
14. Council noted that, whilst fencing off the trailers may be a potential mitigation measure, it was not proposed as it might not protect the contents from impact and might induce further attention instead.
15. The EPA did not consider that a stay could be safely granted because:
    • none of the practical measures contemplated by Council are measures that would sufficiently reduce the risk;
    • there is limited information before the Tribunal about the flow of traffic in the area and all that is known is that it is a residential area, there are properties nearby, and it is a public road;
    • the risks of collision, tampering and the like would not be allayed by the construction of temporary works at the premises;
    • the risk of interference is realistic, especially in circumstances where there has been some evidence of tampering, including damage to the vinyl curtains and unexplained opening of the trailer doors between inspections; and
    • the existing camera monitoring is not live monitored and would simply provide information about what had happened (past tense) rather than providing a realistic opportunity for intervention.
16. Neither party used the language of a quantitative risk assessment that utilised a recognised framework to undertake a structured approach to identifying, analysing and managing potential risks for the DA Cylinders contained on the trailers on the side of the road.
17. There are risks associated with the ongoing, unregulated deposit of DA Cylinders on public land. This is not alleviated because they may be empty.
18. In this case, although the likelihood of a collision with the trailers may be relatively low, the potential consequence could be catastrophic to human health and impactful on the environment.
19. We also note that the trailers are located immediately adjacent to the roadway and are not well removed from the path of traffic, even though the road alignment is generally straight and unobstructed.
20. On the information currently before us, we regard the likelihood of an incident as a result of misuse as comparatively more likely and indeed, not unexpected given the isolated location and the past indication of tampering.
21. Likewise, it appears that there is a potential for explosion or fire or other impacts on human health from this type of intervention. This is potentially exacerbated by the quantity and agglomeration of the DA Cylinders within the two trailers.
22. These are realistic scenarios which pose an unacceptable risk to human health and the environment.
23. In this instance, we are not persuaded that appropriate measures could be taken by Council or the EPA to sufficiently minimise the risk of collision or interference while the DA Cylinders remain within the trailers on the premises.
24. We consider the risk could only be reduced to an acceptable level if the DA Cylinders were contained in line with appropriate storage requirements for dangerous goods. This was not specified or proposed as feasible by either party.
25. Given the risks that remains ongoing and the relative inadequacy of proposed mitigation measures, it is not in the community's interest to grant a stay.
26. This is particularly the case where refusing a stay would be likely to perpetuate the risks for a number of months, for reasons discussed below.

1. Council submitted that the period of time before the matter is heard is would not be excessive and the ongoing risk, yet unquantified, can continue to be managed in the same way until the proceeding is determined.
2. Council made further submissions that, if the stay was refused, the hearing could conceivably be brought forward to minimise the period of time before the matter is heard and determined.
3. The EPA submitted that the likely effect of a stay would be that the DA cylinders are not dealt with at all until the matter was determined finally. It argued that allowing the DA Cylinders to remain in situ for 6 months or thereabouts (as would seem the likely result of a stay), that would present completely unacceptable risks to human health and potentially the environment.

1. We have carefully balanced all relevant considerations in determining Council's application for a stay.
2. Refusing a stay would be likely to render the review proceeding nugatory, because compliance would be required before the date of a final determination.
3. This is a strong factor that weighs in favour of the grant of a stay.
4. The effect of not granting a stay (if the Notice was complied with) would be a significant financial cost on Council if the requirement for lawful disposal was invoked.
5. It is not known whether any of this cost can be recouped from the alleged polluter as a debt, whether the EPA would exercise its powers to clean up or facilitate a clean up under section 294 of the EP Act or to agree to bear part of the cost of lawful disposal.
6. However, there are two powerful countervailing considerations on the facts before us.
7. First, Council has not identified a serious question to be tried in the proceeding.
8. To the extent it has suggested the EPA's decision to issue the Notice is not the correct or preferable one, this goes to the Tribunal's discretion but does not of itself identify a serious question to be tried.
9. In any event, the suggestion by Council that the Notice should be set aside because of at least two potentially viable alternatives is not likely to be determinative in this proceeding.
10. The Tribunal's jurisdiction in this case is limited to setting aside, varying or affirming the decision under review. It does not extend to requiring action to be taken by another authority or against another entity in order to resolve the underlying issue.
11. Second, we accept the EPA's submission that allowing the DA Cylinders to continue to remain in the trailers on the premises in the interim would pose a threat of serious and unacceptable harm to human health or the environment.
12. The facts of this case invoke the precautionary principle in section 20 of the EP Act. The lack of 'full scientific certainty' about the extent of risk at this stage should not be used as a reason to postpone measures to prevent those threats.
13. We regard the threats of collision or tampering as realistic. We are not persuaded these risks can be suitably managed or avoided while the trailers remain in situ.

1. The request for a stay is refused for the reasons above.

1. Since we have refused to stay the operation of the decision of the EPA to issue the Notice, we agree with the parties that the proceeding should be progressed or disposed of as soon as possible.
2. As such, we have listed the matter for an administrative mention immediately after the current date for compliance with the Notice to consider the future conduct of the matter and whether the application can be withdrawn (if resolved), or potentially to consider whether the compulsory conference and hearing can be listed any earlier than currently scheduled.

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

[2] [2023] VCAT 227.

[4] See, for example, Bell and Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214.

[5] Including Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and Kolback Securities Ltd v Epoch Mining NL 8 NSWLR 533.

[6] Another alternative would be to remit the decision to the EPA for reconsideration under section 51(2)(d) of the VCAT Act, but this was not sought by any party to this proceeding and was not considered to achieve any potential benefit by the Tribunal.

[7] Counsel explained that it would need to update this quote if it was ultimately required to carry out this work, and that this would likely lead to some unspecified reduction in cost.

[8] The EPA confirmed at the hearing that the email contained within AP-2 was the final version of this advice, noting earlier references to drafts and the need for peer review.