Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd & Ors [2020] VSC 345

Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd & Ors [2020] VSC 345 - VSC 2020 case summary — Zoe

[42]

1D Principle of intergenerational equity

The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.

1E Principle of conservation of biological diversity and ecological integrity

The conservation of biological diversity and ecological integrity should be a fundamental consideration in decision making.

1F Principle of improved valuation, pricing and incentive mechanisms

(1) Environmental factors should be included in the valuation of assets and services.

(2) Persons who generate pollution and waste should bear the cost of containment, avoidance and abatement.

(3) Users of goods and services should pay prices based on the full life cycle costs of providing the goods and services, including costs relating to the use of natural resources and the ultimate disposal of wastes.

(4) Established environmental goals should be pursued in the most cost effective way by establishing incentive structures, including market mechanisms, which enable persons best placed to maximise benefits or minimise costs to develop solutions and responses to environmental problems.

1G Principle of shared responsibility

(1) Protection of the environment is a responsibility shared by all levels of Government and industry, business, communities and the people of Victoria.

(2) Producers of goods and services should produce competitively priced goods and services that satisfy human needs and improve quality of life while progressively reducing ecological degradation and resource intensity throughout the full life cycle of the goods and services to a level consistent with the sustainability of biodiversity and ecological systems.

1H Principle of product stewardship

Producers and users of goods and services have a shared responsibility with Government to manage the environmental impacts throughout the life cycle of the goods and services, including the ultimate disposal of any wastes.

1I Principle of wastes hierarchy

Wastes should be managed in accordance with the following order of preference -

[228]

We disagree with the contention that 1 OU at the boundary is an absolute criterion that must be achieved at the boundary. The 1 OU criterion is a design criterion to be applied to an assessment of emission for the purposes of assessing whether the emission meets (or is consistent with) the objectives of protecting beneficial uses set out under the SEPP (AQM)...

Therefore, in our view, the odour criterion is to be applied in the course of an emissions modelling assessment, which in turn is a task to be undertaken for the purposes of estimating 'the potential impact of new or modified sources of emissions to air in Victoria'.

We acknowledge that in the words of the SEPP (AQM) note 8 at Schedule A, this criterion should be applied at the premise's boundary and beyond...

However, the application of the design criteria for odour... at boundaries under this part of the policy includes a caveat. That caveat, which is set out in [cl 2(d)], is that when these criteria are not met at the boundary, a health risk assessment may be carried out to assess the impact of the proposal. This is consistent with the purpose of the emissions modelling...

However, this part of the policy schedule does not say where the criteria for odour... is to be applied. Parts C(2)(b), (c) and (d) of Schedule C provide this guidance - namely, at the boundary or, if not at the boundary, at locations to be assessed under a risk assessment process.

We therefore find that if the 1 OU criterion is achieved at the boundary and beyond, then it can be said that the outcome is consistent with the objectives of the SEPP (AQM) and no further assessment is required. If the odour emission exceeds this criterion, then further assessment of the possible impact on beneficial uses is required to ascertain whether the objectives will be met.

At the hearing, there was some debate about the SEPP (AQM) reference to a health risk assessment. The developers argued that a health risk assessment cannot be applied to odour, as odour is an amenity or aesthetic air quality indicator and not a health risk. We consider that when reading this part of the SEPP (AQM), as we discuss in the context of landfill gas, the reference to a health risk assessment should not be read strictly. This is because this schedule of the [SEPP (AQM)] deals with modelling of emission assessments that are not expressly limited to classified toxicant air quality indicators.

In our view, the intent of the SEPP (AQM) is that whether dealing with a class 1, 2, 3 or unclassified air quality indicator, if emissions modelling predicts a non-compliance with design criteria at the boundary, this is not the end of the application. Further consideration of the effects can be undertaken by consultation between the applicant and EPA and/or a risk assessment approach can be applied to understand the effect of these emissions. It is thus a matter for EPA to then assess the impacts beyond the boundary and be satisfied that the intent, purpose and outcomes of the SEPP (AQM) are being met.

We therefore agree with EPA's submission that:

A failure of modelled outcomes to meet the design criteria is not determinative of whether a generator of emissions complies with the SEPP (AQM).

Consequently, we turn to the matter of what constitutes an appropriate form of risk assessment...

The approach under Schedule C of the SEPP (AQM) relies on soundly based modelling predictions of odour transport and dispersion. For reasons that we will explain, we are not satisfied that the modelling undertaken for this proposal is sufficiently sound or robust enough to support such a risk assessment. However, this does not mean that the proposal cannot be considered against the SEPP (AQM).

Our ultimate task in this proceeding is... to determine if consistency with the relevant policies will be achieved by the use of the works constructed in accordance with the works approval. Clauses 18 and 19 require us to consider whether the odour emissions and hence the sources of the emissions will be managed in accordance with best practice...

Clause 27 of the SEPP (AQM) similarly requires us to consider the same outcome (namely, impact on local air quality), along with recommended separation distances from sensitive land uses and the outcomes of dispersion modelling. However, the latter (i.e. the use of dispersion modelling and design criteria) do not impose a mandatory requirement. As provided for under clause 28, it may be a requirement of the authority and (on review) of the Tribunal, but dispersion modelling and compliance with design criteria are not mandatory requirements necessary to assess compliance or consistency with the SEPP (AQM).

In our view, such an assessment of impact on local air quality can still be performed in the absence of satisfactory modelling.[35]

[236]

The [SEPP (AQM)] policy design criteria for new or modified sources of odour emissions is [1 OU] or beyond the property boundary. We accept that this is a very conservative requirement but it is one that is nevertheless required to be applied.

The assessment of odour is a difficult and subjective exercise. It depends ultimately on peoples' individual and subjective senses of smell. The creation of a concept of an odour unit, and assessment of odour units, is fraught with uncertainty and variability. The same is true of odour modelling based on these concepts.

...

Reliance is placed on odour assessments by panels of people, not on individuals. The variations in the odour assessing capacities of peoples' senses of smell are sought to be accounted for by a number of precautionary procedures including the assessing or "calibration" of "individual senses of smell" and the exclusion of people with unusually sensitive or unusually insensitive abilities to detect smell. People with suitable "noses" are included in panels but even then the perceptions of "outliers" are excluded. The outliers are those within the panel having the highest and lowest sensitivities to the particular smell being assessed.

When all this is done there is still a wide standard of acceptable variation of up to plus or minus 100% in some cases. This was illustrated by evidence that the same panel can come to different assessments of standard odours at different times and on different days.

We have mentioned that the only [1 OU] on the property boundary is a very conservative standard, indeed it is regarded as ultra conservative by some in the industry. [1 OU] is a level of odour where one half of a panel can just perceive the presence of an odour where the other half is unable to perceive it, and where none are able to identify the odour.

This [SEPP (AQM)] guideline is not a test of nuisance. [1 OU], so defined, at the property boundary will be an odour that is well below a level that amounts to nuisance.[41]

[331]

Loss of amenity will arise where offensive odours are experienced to such an extent that the environment becomes unsuitable for its intended use, be it a current or reasonably foreseeable future use. ...what is offensive to residents in a residential area may not be offensive to workers in or visitors to an industrial area or commercial area. It is a matter of context.

Thus, in the absence of dispersion modelling, we are left to qualitatively assess whether the amenity of the air environment will remain suitable for the intended use of land within the surrounding land use context in order to ascertain whether the proposal will be consistent with the SEPP (AQM).

...

Having regard to the test in section 33B(2) of the [EP Act], we conclude that the interests of persons applying for review must be considered in the same way. It is not a matter of whether a resident in the surrounding residential areas (whether existing or future) will smell a landfill odour. The interest in respect to odour is one of people enjoying or having available to them an agreeable or pleasant context within which to reside, to work or to visit.

The difficulty with such a concept is, of course, the varying views of people as to what constitutes a pleasant amenity. It is clear enough from some of the lay witnesses who gave evidence on behalf of Stop the Tip that even detecting a whiff of a landfill odour is upsetting to some people while others may consider they are not affected until strong, persistent odours occur.

The cues to the test of a relevant interest are to be found in the words of section 33B(2)(a) - i.e. the odour emission must be unreasonable, and it must have an adverse impact. Put another way, the expectation of amenity must be reasonable within the context of which that amenity is being or is expected to be experienced, and it must be this amenity that is adversely affected by the emissions. Heightened sensitivity to an odour cannot be an acceptable test in a situation where the test is one of reasonableness. Similarly, an expectation of high levels of amenity in areas allocated for industrial land uses cannot be considered reasonable. Likewise, those areas that border an existing industrial use should not have the same level of amenity expectation as those deep within a residential area.

It follows that the expectation of amenity is to be tempered by the contextual experience of the odour emission, which is the intent of the assessment though the FIDOL factors of frequency, intensity, duration, offensiveness and location.[77]

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