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

Legal Services Unit, Environment Protection Authority

1 Mount Atkinson Holdings Pty Ltd (ACN 162 247 798) and Middle Hopkins Investments Pty Ltd (ACN 613 529 561) ('developers') seek leave to appeal, and if leave is granted, appeal from the decision of the Victorian Civil and Administrative Tribunal ('Tribunal') under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') against paragraphs 4 and 5 of the order made by the Tribunal on 17 June 2019 in proceedings VCAT ref P790/2017, P794/2017, P795/2017, P805/2017 and P877/2017 ('Tribunal proceedings').

2 The Tribunal proceedings were applications under s 33B of the Environment Protection Act 1970 (Vic) ('EP Act') to review the issue of a works approval by the Environment Protection Authority ('EPA') for an extension of the Melbourne Regional Landfill ('landfill').

3 The landfill is the largest landfill in Victoria, accepting millions of tonnes of putrescible waste each year from municipalities and commercial customers.

4 The landfill is located at 1154-1198 Christies Road, Ravenhall and 408-506 Hopkins Road, Truganina ('subject land') and is conducted by Landfill Operations Pty Ltd (ACN 603 300 358) ('proponent').

5 Following a 20 day hearing, the Tribunal handed down extensive written reasons and directed that a works approval be issued subject to amended conditions.[1] The works approval permitted a seven cell expansion of the landfill. The landfill expansion would fill a quarry void about 10m deep and extend to 40m above ground level.

6 There were five applicants for review of the EPA's decision before the Tribunal.[2] This proceeding is brought by the developers, and is opposed by the EPA and the proponent. No other party to the Tribunal proceedings appeared at the trial.

7 The first plaintiff and associated entities own approximately 700ha of land west of Hopkins Road to the west of the landfill which they propose to develop as a major employment centre. The second plaintiff owns land on the north-east corner of Hopkins Road and Middle Road, south of the landfill extension. This presently comprises a dwelling, agricultural facilities and associated operations.

8 Part IV of the EP Act provides for reviews by the Tribunal of works approvals issued by the EPA.

(a) issues a works approval;

...

a person whose interests are affected by the decision... may apply to the Tribunal, within 21 days after the decision is made, for review of the decision.

(2) An application for review... is to be based on either or both of the following grounds -

(a) that if the works are completed in accordance with the works approval, the use of the works will result in -

(i) a discharge [or] emission... of waste to the environment;

...

which will unreasonably and adversely affect the interests, whether wholly or partly of that person; or

(b) that if the works are completed in accordance with the works approval, the use of the works will result in -

(i) a discharge [or] emission... of waste to the environment;

...

in the area which will be inconsistent with any relevant Order declared under section 16, 16A...

In determining an application for review... under this Part the Tribunal must -

(a) take into account any relevant planning scheme;

...

(c) take account of, and give effect to, any relevant State environment protection policy or waste management policy;

The discharge or emission of wastes into the atmosphere shall at all times be in accordance with declared State environment protection policy or waste management policy specifying acceptable conditions for discharging or emitting wastes into the atmosphere and shall comply with any standards prescribed therefor under this Act.

The discharge or deposit of waste onto land -

(a) shall at all times be in accordance with declared State environment protection policy or waste management policy specifying acceptable standards and conditions therefor; and

(b) shall comply with any standards applicable under this Act.

(1) A person shall not pollute land so that the condition of the land is so changed as to make or be reasonably expected to make the land...

...

(e) obnoxious or unduly offensive to the senses of human beings; or

(f) detrimental to any beneficial use made of the land.

(2) Without in any way limiting the generality of subsection (1) a person shall be deemed to have polluted land in contravention of subsection (1) if -

(a) that person causes or permits to be placed in or on any land or in any place where it may gain access to any land any matter whether solid, liquid or gaseous which -

(i) is prohibited by or under this Act; or

(ii) does not comply with any standard prescribed for that matter; or

...

(iv) any other site for the disposal of or as a repository for solid or liquid waste -

so as to be obnoxious or unduly offensive to the senses of human beings...

14 Section 4 of the EP Act contains the following relevant definitions:

'beneficial use' means a use of the environment or any element or segment of the environment which -

(a) is conducive to...health or aesthetic enjoyment and which requires protection from the effects of waste discharges, emissions or deposits...or

(b) is declared in State environment protection policy to be a beneficial use;

'environment' means the physical factors of the surroundings of human beings including the... atmosphere... odours... and the social factor of aesthetics.

(a) any waste arising from... industrial [or] trade activities...

'waste' includes:

(a) any matter whether solid, liquid, gaseous, which is discharged [or] emitted... in the environment in such volume, constituency or manner as to cause an alteration in the environment.

15 Section 33B(2) requires an applicant for review to prove that the use of the works when completed in accordance with the works approval 'will result' in one of the conditions described in s 33B(2)(a) or (b). This is a more onerous requirement than merely showing that the works when completed 'might' result in one of these conditions.

16 In Thirteenth Beach Coast Watch Inc v Environment Protection Authority, Cavanough J considered the Tribunal's role in an application for review of a works approval and said:

...However I would venture to say that s 20C of the [EP Act] has little or no application to VCAT in s 33B applications for review. In terms, s 20C is directed to the powers and duties of the EPA in considering applications for, among other things, works approvals at first instance. The nature, breadth and flexibility of the powers and duties so conferred on the EPA seems to be inconsistent with what I perceive to be the carefully limited role of VCAT under s 33B: compare especially s 20C(3) and (3A). Further, I doubt very much whether s 33B envisages that there should be a general, unconfined review once one of the grounds has been made out. Rather, it seems to me that, the statutory grounds being somewhat challenging in themselves, Parliament envisaged that where one or other of them was successfully made out, the review would be at an end, save perhaps for a limited discretion in the Tribunal to decline to intervene for some good reason...

...it is at least arguable that the function of VCAT under s 33B is merely to respond to the case put by the applicant. The language of s 33B, especially the reference to "grounds", is not common amongst VCAT's "enabling enactments".[3]

17 Cavanough J confirmed that the nature of the Tribunal's jurisdiction under s 33B(2) is not one of a general review of the merits of an application for a works approval, but a review which requires an applicant for review to meet one of the specific statutory grounds expressed in that section. It follows that if the applicant for review fails to satisfy the Tribunal of the existence of one of these grounds, the application must fail.

18 The general functions and powers of the Tribunal are not in doubt. The EP Act is an enabling enactment under s 3 of the VCAT Act. It is also a 'planning enactment' under sch 1 to the VCAT Act. In exercising its review jurisdiction under Part IV, the Tribunal is vested with the powers set out in the VCAT Act subject to any changes or modifications required by sch 1.

19 The Tribunal's powers under Part IV include those powers set out in s 51 of the VCAT Act, and include the functions of the EPA relevant to the decision under review as well as the functions conferred on the Tribunal by the EP Act, the VCAT Act, regulations and rules.

Principles of environment protection and integrated decision making

20 Since 2001, Parliament has directed that environmental decision making and the administration of the EP Act be conducted in accordance with the principles of environment protection, including the principle of integration of economic, social and environmental considerations.

(1) The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.

...

(3) It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.

22 The principles of environment protection are set out in ss 1B to 1L. They are:

1B Principle of integration of economic, social and environmental considerations

(1) Sound environmental practices and procedures should be adopted as a basis for ecologically sustainable development for the benefit of all human beings and the environment.

(2) This requires the effective integration of economic, social and environmental considerations in decision making processes with the need to improve community well-being and the benefit of future generations.

(3) The measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed.

1C The precautionary principle

(1) If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(2) Decision making should be guided by -

(a) a careful evaluation to avoid serious or irreversible damage to the environment wherever practicable; and

(b) an assessment of the risk-weighted consequences of various options.

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 -

(a) avoidance;

(b) re-use;

(c) re-cycling;

(d) recovery of energy;

(e) treatment;

(f) containment;

(g) disposal.

1J Principle of integrated environmental management

If approaches to managing environmental impacts on one segment of the environment have potential impacts on another segment, the best practicable environmental outcome should be sought.

1K Principle of enforcement

Enforcement of environmental requirements should be undertaken for the purpose of -

(a) better protecting the environment and its economic and social uses;

(b) ensuring that no commercial advantage is obtained by any person who fails to comply with environmental requirements;

(c) influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.

1L Principle of accountability

(1) The aspirations of the people of Victoria for environmental quality should drive environmental improvement.

(2) Members of the public should therefore be given -

(a) access to reliable and relevant information in appropriate forms to facilitate a good understanding of environmental issues;

(b) opportunities to participate in policy and program development.

23 The principle of integrated decision making having regard to multiple considerations, subordinate instruments and policies is familiar to decision makers under planning legislation.[4]

There cannot be any doubt that Victorian planning law requires integrated strategic decision-making. The Act and its history demonstrate that one of the objectives of planning in Victoria is to facilitate development in accordance with the other objectives, including, but not limited to, conservation of buildings which are of aesthetic, historical or cultural interest. Significantly, one of the objectives of planning under the Act is to enable land use and development planning and policy to be 'easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels.' Further, ss 60 and 84B of the Act require consideration of a wide range of matters in a planning permit application, including the environmental effects and social and economic effects of the proposal, where appropriate. [5]

The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other hand, is not fixed by the planning scheme but is essentially a matter for the decision maker.

Furthermore, the potential complexity of issues raised by a particular application renders the question of what would be the optimal form of development for use in a particular case fundamentally difficult of resolution and one on which different minds might reasonably differ.[6]

26 In the present case, the Tribunal applied the principle of integrated decision making, and said:

The principle of integration of economic, social and environmental considerations establishes a three-pronged approach for:

• Ecologically sustainable development that benefits all human beings and the environment through the adoption of 'sound environmental practices and procedures'.
• Balancing economic, social and environmental considerations with the need to improve community well-being and deliver benefits to future generations (i.e. intergenerational equity).
• Adopting cost-effective and proportionate responses to the environmental problems being addressed, i.e. the concept of a proportional responses to environmental hazards that minimise risks to an acceptable level.

The principle of integration of economic, social and environmental considerations therefore requires an integrated approach to decision-making. In practice, it means that a balance is required where there may be some negative economic, societal or environmental outcomes versus other positive economic, societal and environmental outcomes. Proportional responses to environmental hazards are a particularly important aspect of such a balancing exercise.

The policy principle for integrated decision making is particularly relevant to the substantive issue of odour in this proceeding. This is not to dismiss the other various issues raised about the landfill cells being proposed. However, it will be evident from our reasons that, save for the issue of odour, we are satisfied that other aspects of the design and use of the landfill cells deliver acceptable outcomes when tested against the range of requirements under the statutory framework. In respect to odour, the application of the principle of integrated decision making requires us to consider what is the real and substantive effect of the odour emissions and what is the appropriate, proportionate and cost-effective approach to adopt while recognising other positive waste management outcomes that the ongoing operation of this landfill can deliver.[7]

27 No party took issue with the Tribunal's adoption of the principle of integrated decision making. I accept that the Tribunal's approach is correct.

28 The principles of statutory construction are well established and apply to subordinate instruments as well as statutes.[8] In Project Blue Sky Inc v Australian Broadcasting Authority, the plurality said:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[9]

29 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory), the High Court 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.[10]

30 The plurality of the High Court emphasised the importance of text, context and purpose in SZTAL v Minister for Immigration and Border Protection:

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.[11]

31 In CIC Insurance Ltd v Bankstown Football Club Ltd, the majority of the High Court said:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous.[12]

32 These principles are consistent with s 35(a) of the Interpretation of Legislation Act 1984 (Vic) ('IL Act'), which requires that when interpreting a subordinate instrument, a construction that would promote the purpose or object underlying the instrument is to be preferred to a construction that would not promote that purpose or object.

33 An important consideration in the interpretation of subordinate legislation was stated by Lord Reid in Gill v Donald Humberstone and Co Ltd:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence.... They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament... Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.[13]

34 A similar view was taken in Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq), a case involving environmental waste regulations, where the New South Wales Court of Appeal said:

It is legitimate to have regard to the fact that regulations are less carefully drafted, and less keenly scrutinised, than primary legislation...

Undoubtedly, there is much less scrutiny of regulations by either chamber than of bills. Regulations must be laid before each chamber and may be disallowed... but that is quite different from the passage of a bill through the chambers and its receiving Assent. It is true that the Legislative Review Committee is to consider and report on both bills and regulations... but the function of that committee is not primarily to call for improved drafting.[14]

35 State environment protection policies ('SEPPs') have a pivotal role in environmental decision making. Section 16(1) of the EP Act provides:

For the purposes of this Act the Governor in Council may... by Order published in the Government Gazette declare the environment protection policy to be observed with respect to the environment generally or in any portion or portions of Victoria or with respect to any element or elements or segment or segments of the environment.

36 Under s 17(1) of the EP Act, the Governor in Council may:

(a) classify any area or any segment or element of the environment in any area for the purposes of the Order;

(b) set aside any area or areas or any segment or segments of the environment within which the discharge [or] mission... of wastes... is prohibited or restricted as specified in the Order;

(c) specify requirements to be observed for carrying any such prohibition or restriction into effect; and

(d) delegate to any protection agency such of the powers of the [EPA] as are necessary for securing the observance of the Order.

37 Section 16A has an equally significant role in relation to waste management policies ('WMPs'). Section 16A(1) provides:

For the purposes of this Act the Governor in Council may... by Order published in the Government Gazette declare the [WMP] to be observed with respect to any aspect of the management of waste in Victoria, including with respect to -

(a) the generation, storage, reprocessing, treatment, transport, containment and disposal, and generally the handling, of waste;

(b) the procedures to be implemented in the recycling, recovery, reclamation and re-use of waste and the use of recycled substances;

(c) the methods by which specified substances are to be disposed of;

(d) the routes and methods by which waste is to be transported;

(e) the location of treatment and disposal plants;

(f) the allocation of responsibility for waste management operations and disposal; and

(g) the use and disposal of notifiable chemicals.

38 Section 18 gives directions as to the subject matter of a SEPP and WMP in these terms:

(1) [SEPP] shall establish the basis for maintaining environmental quality sufficient to protect existing and anticipated beneficial uses in the area affected by the Order and in particular shall include in terms sufficiently clear to give an adequate basis for planning and licensing functions -

(a) the boundaries of any area affected;

(b) identification of the beneficial uses to be protected;

(c) selection of the environmental indicators to be employed to measure and define the environmental quality;

(d) a statement of the environmental quality objectives (where practicable); and

(e) the program if any by which the stated environmental quality objectives are to be attained and maintained including, where appropriate, the specification of -

...

(iii) minimum standards for the installation and operation of works or equipment for the control of waste... from specified sources or classes of premises; and

(iv) measures designed to minimize the possibility of the occurrence of pollution.

(2) [WMP] is to include in terms sufficiently clear to give an adequate basis for planning and licensing functions -

(a) the objectives of the [WMP];

(b) the substances, circumstances and regions to which the [WMP] is to apply; and

(c) the time by which or period during which the [WMP] is to be in force.

39 Before a SEPP or WMP may be declared or varied, s 18A requires that a policy impact assessment (amongst other documents) be prepared.

40 Under s 18C(1) of the EP Act, a policy impact assessment must include:

(a) a statement of the purposes of the declaration or variation of policy; and

(b) an identification of the different means by which the purposes of the declaration or variation of policy can be achieved including the alternative of not declaring the policy or varying the existing policy; and

(c) an assessment of the possible financial, social and environmental impacts of each alternative expressed in qualitative and, to the extent practicable, quantitative terms to ensure that the costs are not disproportionate to the benefits to be achieved.

41 The approval process for SEPPs and WMPs requires identification of different policy options, and an assessment of the financial, social and environmental impacts of each option to ensure that the costs of the policy are not disproportionate to its benefits.

The Court's jurisdiction to review the Tribunal's decision

42 Parties to proceedings in the Tribunal may seek leave to appeal and, if leave is granted, appeal to the Court under s 148 of the VCAT Act.[15]

43 Under s 148, the existence of a question of law is a jurisdictional requirement for an appeal to the Court and the subject matter of the appeal itself.[16]

44 In Patsuris v Gippsland and Southern Rural Water Corporation, the Court of Appeal said:

Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.

The 'question of law' requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself. It is not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal.[17]

45 Similar observations were made by Pagone J in Hoe v Manningham City Council:

In considering whether to grant leave to appeal a decision of the Tribunal it is essential to focus upon the question or questions of law in respect of which the leave is sought...

These considerations emphasise the need and importance of an exact identification of the error of law said to enliven and to form the basis of this Court's jurisdiction to hear an appeal. The need to identify a question of law serves as the criteria upon which several policy objectives are achieved through s 148(1) of the VCAT Act. It is the means by which finality of litigation by Tribunal decisions is achieved as well as the trigger by which the statutory appellate jurisdiction of this Court may be enlivened. The general policy evinced by s 148(1) is in part to ensure that litigation comes to an end by the decision made by the Tribunal. It is also in part to ensure that its decisions are legally correct but that within its legal domain it will be its decision that will end the dispute between the parties. It is not part of this Court's appellate jurisdiction to review decisions by the Tribunal which are not legally incorrect...

These observations emphasise the need for precision in articulating the question of law in an appeal and emphasise a fundamental reason for the need for that precision. The Court's jurisdiction to hear an appeal depends upon there being a question of law in issue but it is only the question of law which the Court is permitted by the statutory appeals jurisdiction to consider. The fact that a question of law may have been involved in a decision does not permit the whole of the decision to be agitated upon an appeal. The question of law is the trigger for an appeal but is also the entire subject matter of the appeal and for both purposes it is essential that the question of law said to have been erroneously decided is identified exactly.[18]

46 Leave to appeal under s 148 may be granted only if the Court is satisfied that the application for leave has a real prospect of success.[19] To attract the grant of leave to appeal, a ground of appeal must raise a question of law with a real prospect of success. Leave to appeal should be refused where a question and related ground merely controvert the Tribunal's findings of fact, the question of law is misconceived, or where the ground misstates a finding of the Tribunal.

47 The Court of Appeal applies the 'real' prospect of success test in considering whether leave to appeal should be granted under s 14C of the Supreme Court Act 1986 (Vic). The Court of Appeal also has a residual discretion as to whether leave to appeal should be granted, for example, where there has been no substantial injustice.[20]

48 It is an error of law if an administrative tribunal:

• in some circumstances, makes an erroneous finding or reaches a mistaken conclusion;

• fails to give proper, genuine and realistic consideration to the merits, or to a relevant consideration.

49 These errors of law amount to jurisdictional error, which will invalidate any order or decision of the administrative tribunal which reflects it.[21]

50 The Tribunal's decision is of considerable length and addresses:

• the planning and environmental framework and relevant policies;
• odour;
• landfill gas management;
• mound or area landfills;
• surface water and drainage;
• litter;
• alternative waste disposal operations;
• landfill buffers; and
• the conditions to be imposed on the landfill.

51 This proceeding solely concerns odour and landfill buffer issues and the policies that relate to these issues.

52 The Court's review of the decision is confined to issues raised in the questions and grounds of appeal. Initially, there were 11 questions and related grounds of appeal. Grounds 9 and 11 were abandoned by the developers and are not further considered.

53 I will first set out extracts from the relevant policies, and then consider the questions of law and grounds relied on by the developers.

54 In January 2002, the EPA prepared a policy impact assessment of changes proposed to the State Environment Protection Policy (Air Quality Management) ('SEPP (AQM)') and the State Environment Protection Policy (Ambient Air Quality) ('SEPP (AAQ)') ('impact assessment').[22] Passages in the impact assessment are helpful in understanding the underlying intent for the changes that were made.

55 As to the principles of environment protection, the impact assessment said:

With the introduction of a set of guiding principles into the [EP Act] early in 2001, the policy has been amended to reflect those principles. The incorporation of these principles in the policy reflects national agreements and important shifts and developments in environment management in recent years...[23]

56 As to risk assessment, the impact assessment said:

An important environmental management tool the SEPP (AQM) formally incorporates for the first time is risk assessment. The ability to conduct a risk assessment will enable emissions generators to better assess the impact of their emissions on the surrounding environment.[24]

57 When discussing cl 16 of the SEPP (AQM), the impact assessment stated:

The SEPP (AQM) identifies a more formal role for risk assessment in air quality management in Victoria. Assessment of any emissions remaining after appropriate control and waste minimisation is applied may be assessed using formal risk assessment approaches as an alternative to applying the design criteria. It is proposed that the [EPA] may take into account the results of such a risk assessment in considering application for works approval and licence.

Applicants for works approvals and licences are required to show that predicted emissions remaining after the application of appropriate control practices would meet the design criteria specified in the SEPP (AQM). If these criteria cannot be met, or if meeting these requirements poses unreasonable practical or financial burden on a company, it is proposed that a risk assessment may be undertaken by the applicant and submitted to EPA for consideration as part of the works approval process.

...

The ability to use risk assessment tools should be of benefit to industry as risk assessment provides greater flexibility in meeting the requirements of the policy and may avoid the application of expensive technology to reduce emissions to meet the design criteria.[25]

A risk assessment may also be conducted as part of the application for works approval. This will be particularly important if a proposal for a new premises is unable to meet the design criteria even after applying the appropriate level of emissions management... A risk assessment may be used to supplement the evaluation by EPA as to whether the beneficial uses of the environment will be protected.[26]

59 In a case study in the impact assessment, the EPA commented:

It is important to remember that modelling against the new design criteria would only be used as a guide to the premises' performance, not as a measure for determining compliance with the policy. If any modelling done showed that the design criteria were being exceeded after all practicable measures for reducing emissions had been applied, a risk assessment could be used to help assess if the beneficial uses of the environment were being protected.[27]

60 The impact assessment highlights the importance of flexibility:

EPA recognises the importance of flexibility in managing issues relating to odour, as there are many factors involved that may vary significantly from one situation to another. The new policy spells out more clearly the use of risk assessment where design criteria cannot be met to allow special circumstances to be considered on a case by case basis.[28]

61 As to the modelling of emissions, the impact assessment states:

Clause 28 allows [the EPA] to require a generator of emissions to air to model those emissions. Modelling of emissions is used during the design phase of a new source to estimate the potential impact of the proposal for assessment against design criteria. [The EPA] may require modelling of emissions from existing sources to assist with risk assessments associated with the activities, and as an aid in determining the most effective means of reducing emissions. This clause reflects the current policy and practice for modelling emissions to air.[29]

62 The SEPP (AQM) was approved by the Governor in Council on 27 November 2001.

63 The aims of the SEPP (AQM) are set out in cl 6. They include:

(a) ensure that the environmental quality objectives of the [SEPP (AQM)] are met.

(b) drive continuous improvement in air quality and achieve the cleanest air possible having regard to the social and economic development of Victoria.

64 The policy intent is set out in cl 8 and includes:

Emissions to the air environment will be managed so that the beneficial uses of the air environment are protected, Victoria's air quality goals and objectives are met, our air quality continues to improve and we achieve the cleanest air possible, having regard to the State's social and economic development.

...

Proposals for new or substantially modified industrial sources of emissions will be designed to minimise their operational impact.

...

Decisions by people, governments and organisations that affect, or are affected by, air quality will be informed by providing access to scientific information, models, research and other knowledge in a manner that meets the needs of stakeholders.

65 Clause 9(1) lists the beneficial uses that are protected throughout Victoria. They include:

...

(c) local amenity and aesthetic enjoyment;

...

66 Clause 10(1) defines air quality indicators, including unclassified indicators, as:

indicators of the beneficial uses of local amenity and aesthetic enjoyment, namely odour...

67 Clause 10(4) states that design criteria for odour are established in sch A.

68 Clause 16(2)-(5) make provision for an emission generator to undertake a risk assessment, and for the EPA to require a generator to undertake a risk assessment:

(2) Risk assessment practices may be used in the:

(a) development of air quality objectives and design criteria;

(b) establishment of air quality management priorities;

(c) assessment of the environmental and health impacts of air pollution; and

(d) identification of the emissions or sources of greatest risk to beneficial uses of the air environment.

(3) A generator of emissions may undertake a risk assessment to gain a better understanding of the impact of emissions from its activity on the beneficial uses of the environment.

(4) The [EPA] may require a generator of emissions to undertake a risk assessment if it believes a risk assessment will contribute to a better understanding of the impact of the activities of a generator of emissions on the beneficial uses of the environment.

(5) The [EPA] may use the findings of a risk assessment in making statutory decisions or determining whether a generator of emissions complies with the policy.

69 Clause 18 imposes general requirements for the management of emissions:

(1) In this policy the management of emissions means:

(a) avoiding and minimising emissions in accordance with the preference established in the principle of the wastes hierarchy; and

(b) the assessment, monitoring, control, reduction or prohibition of emissions for air quality management purposes.

(a) manage their activities and emissions in accordance with the aims, principles and intent of the policy;

(b) pursue continuous improvement in their environmental management practices and environmental performance; and

(c) apply best practice to the management of their emissions...

In assessing an application for a new development that may have impacts on local air quality, the [EPA]...will have regard to protocols for environmental management developed in accordance with this policy, including those for:

(a) best practice for environmental management;

(b) recommended separation distances between emissions sources and sensitive land uses; and

(c) the use of design criteria and dispersion modelling for assessing emissions.

71 Under cl 28, the EPA has power to require generators to model emissions:

(1) In addition to managing emissions in accordance with clauses 18, 19 and 20, the [EPA] may require a generator of emissions to:

(a) model the transport and dispersion in the air environment of emissions; and

(b) for new sources of emissions, demonstrate that the model predictions meet the relevant design criteria; or

(c) in the case of odorous emissions for which design criteria are not established, demonstrate that local amenity will not be adversely affected by offensive odours.

(2) Any modelling done under sub-clause (1) must be done in accordance with Schedule C or any relevant protocol for environmental management made under this policy for a particular industry or activity.

72 Schedule A prescribes the design criteria to be used in the assessment of the design of new or expanded sources of emissions. The opening paragraph of sch A states:

This schedule prescribes the Class 1, 2 and 3 indicators and their design criteria referred to in Clause 10 of [the SEPP(AQM]. These criteria are to be used in the assessment of the design of new or expanded sources of emissions such as industrial premises. They are to be used in conjunction with the modelling procedures outlined in Schedule C of [the SEPP(AQM)].

73 The table of design criteria contains an entry for general odour:

All emissions of pollutants covered by the SEPP (AQM) must be managed to ensure that the beneficial uses identified in Clause 9... are protected and that continuous improvement in Victoria's air quality is achieved. Regardless of the classification of a pollutant all emissions must be minimised by the use of best practice as described in Clauses 18 and 19 of [the SEPP (AQM)].

...

Emissions of mixed odorous substances, such as those from sewage treatment farms, rendering plants and intensive animal industries may be offensive and therefore need to be minimised and controlled to ensure that the beneficial uses of the environment are protected. General odour is defined in SEPP (AQM) as an unclassified air quality indicator of local amenity and aesthetic enjoyment of the air environment. The design criteria for new sources of general odour is the odour detection threshold (1 odour unit) and should be applied at and beyond the boundary of a premises.

75 Note 8 provides that the design criteria for new sources of emissions is the odour detection threshold of 1 odour unit ('1 OU'). This is the only description of an odour unit contained in the EP Act or the SEPP (AQM).

76 Schedule B sets out intervention levels used to assess air monitoring data to determine whether the beneficial uses of the policy are being protected. General odour is not listed in sch B.

This schedule aims to ensure that the potential impact of new or modified sources of emissions to air in Victoria is:

...

(b) assessed against the design criteria prescribed in Schedule A to this policy.

78 Part C of sch C gives guidance as to modelling by proponents of new or modified sources of emissions. Clause 2(c) ('cl 2(c)') and (d) ('cl 2(d)') provide:

For odour emissions, the design criteria based on odour apply at and beyond the boundary of the premises.

In cases where the design criteria are not met the proponent may carry out a health risk assessment to demonstrate that there will be no adverse impact from the proposal.

79 Explanatory notes are found at the end of the SEPP (AQM). Schedule A to the explanatory notes states:

In situations where the design criteria cannot be met, a risk assessment taking account of site-specific circumstances and demonstrating that the beneficial uses of the environment are protected will be considered.

80 Schedule C of the explanatory notes states that:

Proponents required to estimate the impact of their proposal to achieve compliance with policy must model the emissions to air in accordance with this schedule.

Waste Management Policy (Siting, Design and Management of Landfills)

81 The Waste Management Policy (Siting, Design and Management of Landfills) ('WMP (SDM)') was approved on 14 December 2004.

In line with community expectations, [the WMP (SDM)] seeks to protect people and the environment, including local amenity, from the inherent risks posed by the disposal of waste to landfill. This is achieved by providing a framework and tools to implement the wastes hierarchy, consistent with the broader objective of ecologically sustainable development.

...

Landfills represent the least preferred waste management option, therefore as a general principle the disposal of waste to landfill must be minimised. However it is recognised that landfills will be required for the foreseeable future to manage wastes that cannot currently be recycled or reused. Future landfill development should therefore be minimised, taking into account the policy principles.

83 Clause 7 sets out the policy objectives of the WMP (SDM):

(a) protect the environment, including human health and amenity, from risks that may be posed by the disposal of waste to landfill;

(b) encourage innovation, cleaner production, resource efficiency and waste reduction, including promoting and facilitating the diversion of waste from landfill, in accordance with the wastes hierarchy; and

(c) minimise the development and use of landfills, consistent with the policy principles.

84 Clause 9 sets out the policy intent, and includes:

The siting, design and management standards established for landfills in Victoria by the highest practicable level of protection for the community and environment, including local amenity and aesthetic enjoyment.

When making decisions and formulating strategies, plans and programs that may affect existing or proposed landfill sites in Victoria, the [EPA]... will pursue the objectives and apply the principles and intent of the [WMP (SDM)].

Operators of landfill sites will site, design and manage their landfill to ensure the protection of all beneficial uses of the environment.

87 The general requirements of landfill siting, design and management of landfill are set out in cl 15(3)-(5):

(3) An applicant for or holder of a works approval or licence for a landfill site must:

(a) comply with the policy as well as all other relevant [SEPPs] and [WMPs];

(b) meet the objectives of the [Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills ('BPEM']; and

(c) meet each required outcome of the BPEM.

(4) An applicant for or holder of a works approval or licence for a landfill site should use the suggested measures in the BPEM to demonstrate that subclause (3) will be met.

(5) If an applicant for a works approval... proposes measures alternative to the suggested measures of the BPEM, the [EPA] shall not issue the works approval... unless the applicant satisfies the [EPA] that the alternative measures:

(a) meet the requirements of subclause (3); and

(b) provide at least an equivalent environmental outcome to that provided by the suggested measure.

Clause 15 applies to landfills serving 5000 persons or more and requires landfill operators to meet the objectives and required outcomes outlined in the BPEM. This clause also provides a process for alternative measures than those specified in the suggested measures in the BPEM to be evaluated and approved.

State Environment Protection Policy (Ambient Air Quality)

incorporate components of the State environmental protection policy (The Air Environment) to include all ambient air quality objectives relevant to Victoria within the [SEPP(AAQ)].

91 Clause 6(1) states that the desired environmental outcome of the policy is ambient air quality that allows for the adequate protection of the beneficial uses set out in cl 8, which include:

Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills

92 The BPEM was published by the EPA in August 2015.

93 Section 1.1 deals with the objectives of the BPEM, and states:

These guidelines aim to provide existing and future operators of landfills, planning authorities and regulating bodies with:

• information on potential impacts of landfills on the environment and how these are to be mitigated
• a clear statement of environmental performance objectives for each segment of the environment
• information on how to avoid or minimise environmental impacts, including suggested measures to meet the objectives.

These guidelines are intended to be used as a default position for landfill siting, design, operation and rehabilitation. Landfill operators must meet the objectives and required outcomes by implementing the relevant best-practice measures, described as suggested measures, contained herein.

Where a landfill operator believes that, for a particular section of the guidelines, alternative means can achieve the objectives and required outcomes, a risk-based assessment will be required to support the proposed alternative measure. Alternatively, if EPA believes that additional requirements are needed to protect the environment, then this will also be supported by a risk-based assessment.

[SEPPs] set out policies of the government to manage environmental pollution. Policies establish the environmental quality that must be attained and maintained to protect designated beneficial uses (namely, amenity, health and ecosystem protection). Policies typically set quantitative, ambient and environmental objectives (such as for air, water and soil), and specify measures that must be implemented to minimise the risk of activities causing their ambient standards to be exceeded.

95 Section 5.1.5 deals with buffer distances, and states:

Appropriate buffer distance must be maintained between the landfill and sensitive land uses (receptors) to protect those receptors from any impacts resulting from a failure of landfill design or management or abnormal weather conditions.

96 Table 5.2 summarises the buffers required for different types of landfill. For a Type 2 landfill, the buffer distance from buildings or structures is 500m. Under Table 5.2, the following paragraph appears:

Subject to an evaluation demonstrating that the environment will be protected and the amenity of the sensitive areas will not be adversely affected, lesser buffer distances may be applied subject to a risk assessment that considers design and operational measures. As part of a risk management approach, additional design or operational measures will be required to ameliorate the risks associated with a reduction of the buffer distances identified in Table 5.2.[30]

Buffer distances are set to reflect the potential impacts from landfilling activities. Generally, the buffers are set to manage:

• odour, which is most concern during landfill operation

• landfill gas impacts, including the risk of explosion and/or asphyxiation. Landfill gas potential risk remain post closure and for at least 30 years post-closure.

...

Proposed developments and any works within the recommended landfill buffer can pose a safety risk by potentially providing preferential pathways for landfill gas migration, or providing an environment where landfill gases can accumulate to dangerous levels. All buildings and structures should be considered, including:

• buildings and structures used for sensitive or non sensitive uses

• change of use

• infrastructure installation

• installation of pipelines.

...

Land within buffer areas may be used for non-sensitive uses provided that the use is not adversely affected by landfilling. Therefore, it is better that this land is owned or at least under the control of the landfill operator, maximising control over the maintenance of an appropriate buffer. Landfill operators should develop contingency plans to show how the landfill could be developed and operated to ensure that the safety and amenity of the affected land should still be preserved, should the buffer be encroached. Encroachment may affect the future development of the landfill.

...

The buildings and structures buffer distance applies to any building or structure (including subsurface structures such as stormwater drains or service trenches) located near a landfill and is there to provide a protection zone around a landfill for subsurface landfill gas migration.

98 In a table in section 5.1.10, the BPEM describes the required outcomes of the BPEM to comply with cl 15(3) and (4) of the WMP (SDM) as including:

• Ensure that sufficient buffer is available for the life of the landfill and for a minimum of 30 years following closure of the site.
• Provide buffers in accordance with Table 5.2 and Table 8.2; where these are unavailable, demonstrate that risks are mitigated to the same standard.[31]

99 Section 6.7 specifies the air quality management objectives at a landfill as:

• no health, safety or environmental impacts due to landfill gas...

• the prevention of offsite nuisance odours...

• meet requirements of relevant SEPP and [WMPs].

100 Under the heading of odour, section 6.7.3 of the BPEM provides:

Landfill odour is a key consideration in landfill siting. Landfill odours have two main sources; odour from the aerobic decomposition of freshly deposited wastes and odour from landfill gas generated by the anaerobic decomposition of wastes. Leachate ponds can also be a source of offensive odours. Good operation and adequate buffers are essential in odour management. These buffers are set to account for upset conditions and are not a substitute for best-practice management at the landfill or for normal operating conditions.

At all times, a landfill must be managed to prevent offensive odours beyond the boundary of the premises. For existing landfills this will be assessed by community complaints that are verified by EPA officers. In particular, where surrounding land uses include residential, educational, health care or other sensitive uses, the highest degree of care must be taken to protect these areas from landfill odours.

The provisions of buffers in accordance with requirements outlined in section 5.1.5 will minimise impacts of odour on surrounding areas.

101 The table at the end of section 6.7 states the relevant BPEM objective as:

To ensure that air quality objectives are met, and that there is no loss of amenity from odour...

102 The table lists the required outcome of the BPEM and includes the prevention of any offensive odours beyond the boundary of the premises.

103 The developers presented a wide ranging critique of the Tribunal reasons. The main contentions advanced by the developers were that:

(a) air emissions modelling was obligatory, and must show that the design criterion 1 OU for general odour was attained at the boundary of the landfill and beyond;

(b) because the proponent could not show compliance with the design criterion of 1 OU, the Tribunal was obliged to refuse the works approval application;

(c) the Tribunal did not give effect to the SEPP (AQM), the WMP (SDM) or the BPEM;

(d) a health risk assessment was the only 'get out of gaol card' if the 1 OU standard was not met, and was not appropriate;

(e) the Tribunal used the expression 'risk assessment' inaccurately in its reasons and should have referred to 'health risk assessment';

(f) the Tribunal applied the wrong test as to an adverse effect on amenity by requiring that the impact on residential amenity be so great that residents could not live in their own homes;

(g) the Tribunal denied the developers procedural fairness when it did not accept the evidence of the resident witnesses; and

(h) the Tribunal should have required the proponent to provide a 500m buffer.

104 The EPA and the proponent contended that the critique advanced by the developers was fundamentally wrong, beyond the scope of the questions and grounds and should be rejected by the Court.

105 I will address the developers' contentions as they arise under the questions and grounds to which they relate.

Question 1: Did the Tribunal err in failing to give proper, genuine and realistic consideration to whether the proposal complies with, and gives effect to, cls 10(4) and 28 of the SEPP (AQM) which provide that:

(a) the design criterion for odour is 1 OU as established in sch A; and

(b) for new sources of emissions, the generator of emissions must model the transport and dispersion in the air environment of emissions (in accordance with sch C) and demonstrate that the model predictions meet the design criterion of 1 OU for general odour?

Ground 1: The Tribunal erred in law in concluding that the proposal was consistent with the SEPP (AQM) when the modelling of the transport and dispersion in the air environment of emissions (in accordance with sch C) did not demonstrate that the proposal would meet the design criterion of 1 OU for general odour.

106 The developers relied on cls 10(4) and 28 of the SEPP (AQM),[32] and principally submitted that:

(a) sch A prescribes 1 OU as the indicator that the beneficial uses of local amenity and aesthetic enjoyment will be protected; [33]

(b) an emissions generator must undertake modelling in accordance with sch C and demonstrate that the model predictions meet the design criterion of 1 OU;

(c) a works approval cannot be issued for a landfill that does not meet the 1 OU design criterion;

(d) a 'health risk assessment' under cl 2(d) is not applicable when the design criterion that is not met is general odour;

(e) a 'health risk assessment' under cl 2(d) is different from an odour 'risk assessment' under cl 16(3);

(f) a 'risk assessment' cannot be used to assess a proposal when the model predictions do not meet the design criterion of 1 OU; and

107 The developers emphasised that s 37A(c) of the EP Act required the Tribunal not only to take account of any relevant SEPP or WMP but to 'give effect to it'. They submitted that the ordinary meaning of 'give effect to' was synonymous with 'implement' or 'make operative'.

108 They relied on the decision of the Supreme Court of New Zealand in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, where the Court said:

The Board was required to "give effect to" the [New Zealand Coastal Policy Statement ('NZCPS')] in considering King Salmon's plan change applications. "Give effect to" simply means "implement". On the face of it, it is a strong directive, creating a firm obligation on the part of those subject to it.

...

The requirement to "give effect to" the NZCPS gives the Minister a measure of control over what regional authorities do: the Minister sets objectives and policies in the NZPCS and relevant authorities are obliged to implement those objectives and policies in their regional coastal plans, developing methods and rules to give effect to them...

We have said that the "give effect to" requirement is a strong directive, particularly when viewed against the background that it replaced the previous "not inconsistent with" requirement. There is a caveat, however. The implementation of such a directive will be affected by what it relates to, that is, what must be given effect to. A requirement to give effect to a policy which is framed in a specific and unqualified way may, in a practical sense, be more prescriptive than a requirement to give effect to a policy which is worded at a higher level of abstraction.[34]

(a) the developers' construction of cl 28 of the SEPP (AQM) was erroneous;

(b) cl 28(1) confers a discretion but not an obligation to require a generator of emissions to undertake emissions modelling;

(c) modelling is not an end in itself, but a means by which a proposal can be better understood or assessed;

(d) while modelling was not required, several parties including the proponent made the forensic decision to submit expert evidence containing modelling;

(e) it was open to the Tribunal to conclude that the modelling was not sufficiently reliable or robust;

(f) the design criteria should not be elevated to a position of primacy over other provisions of the SEPP (AQM);

(g) non-compliance with the design criteria did not mean inconsistency with policy;

(h) cl 2(d) is not an exhaustive code, and it was open to the Tribunal to conduct a risk assessment; and

(i) the Tribunal gave effect to cl 28(1).

110 The proponent adopted the EPA's submissions, and also submitted:

(a) cl 28(1) is discretionary providing that the EPA may require a generator of emissions to model the transport and dispersion of emissions, and demonstrate that the model predictions meet the relevant design criteria;

(b) cl 28 provides for modelling as an addition to the EPA's other powers of assessment and management;

(c) 1 OU is the odour detection threshold at which an odour can be perceived. It was common ground before the Tribunal that 1 OU does not equate with offensive odours;

(d) there was no quantitative environmental quality objective for general odour under the SEPP (AQM);

(e) there was no intervention level set for general odour; and

(f) cl 2(d) provides for circumstances where the design criteria 'are not met'. This can only mean that the design criteria are not mandatory.

111 The Tribunal gave extensive consideration to the SEPP (AQM) and to the emissions modelling evidence presented by the parties. The modelling evidence was presented by the parties as part of their case, and not as a result of any direction by the Tribunal or the EPA.

112 Relevant parts of the Tribunal reasons that deal with emissions modelling include:

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]

Modelling of odour emissions and dispersion seeks to apply a quantifiable framework around the question of amenity. It does this by firstly applying any design criterion for emissions at the boundary and through a risk assessment process if this criterion is predicted to be exceeded.

In this proceeding, notwithstanding the number of odour experts who gave evidence, we do not have the benefit of sufficiently reliable modelling to apply such an approach.

...

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).

...

In light of our findings about the modelling outcomes, we have approached our task of assessing the potential for adverse effects by considering the complaints and survey of odour emissions from past practices as an indicator of future potential effects, and by considering the design and the proposed future practices or use of the works against best practice requirements.[36]

114 The Tribunal gave extensive reasons as to why it had found the modelling evidence to be insufficient.[37] It then concluded:

Taken collectively, we find the evidence points to a range of uncertainties about the inputs and hence outputs of the odour emission modelling. The modelling undertaken in this proceeding therefore does not provide us with the necessary level of confidence that it can be applied to an assessment of future impacts on the air environment.

We conclude from the evidence that the science of assessing odour emissions from landfill activities... is fraught with uncertainties and has some way to go in being formalised into an agreed framework by the scientific community. These uncertainties arise from the range of factors that might influence odour emission rates, ranging from temperature, wind speed, atmospheric stability, composition of waste, area of uncovered waste... and the time varying nature of all these factors.

We conclude that the modelling is not 'broken'. Rather, we conclude that the capacity of present-day modelling approaches is not adequate to deal with these complexities. Therefore, they are not sufficient to perform the task required under Schedule C of the SEPP (AQM) for a case of this nature being such a large scale, complex landfilling operation...

For these reasons, and for the reasons we discuss in more detail in the next section of our decision, we conclude that the key modelling undertaken by Mr Todoroski, Dr Bellair and Dr Ross, and that in the [Pacific Environment Ltd Report: Melbourne Regional Landfill Air Quality Assessment (13 May 2016)], are not sufficient to rely on in our assessment of this landfill proposal.[38]

115 The Tribunal said as to the likely migration of odour:

The odour complaints must necessarily be considered in light of the odour surveys commissioned by [the proponent] and those undertaken by EPA. For reasons that we set out shortly, these survey results confirm the migration of odours beyond the site boundary under current and past operational conditions. The results substantiate what has been put to us by [the proponent], that meeting a 1 OU design criteria at all times is not likely to be achieved for this landfill. Equally though, the surveys assist us in assessing the degree of adverse impact on the amenity of the surrounding area, and they temper the lay evidence of historical offensive odours persisting for many kilometres beyond the landfill boundary. [39]

116 The SEPP (AQM) is an important policy of far reaching significance affecting many industries and activities. It has been considered by the Tribunal on a number of occasions since it came into force in 2001.[40]

117 In Yarra Ranges Shire Council v Australian Native Landscapes Pty Ltd, the Tribunal said:

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]

118 As to the reason for buffer distances under the SEPP, the same Tribunal said:

Buffer distances serve a somewhat different purpose to the [1 OU] at the site boundary guideline in the [SEPP (AQM)]... If the [1 OU] at the boundary of the site was attained and maintained, there would not be a need for a buffer separation. The [1 OU] at the boundary notion is intended to apply to ordinary standard operations on the site. Such operations should not require buffer separation. The buffer distance is to provide protection in relation to so called "upset conditions" in other words where something goes wrong and something outside standard operating conditions might cause unusual odour releases.

The notion of a buffer is to impose a separation between the composting activities and sensitive uses such as residences. It is based on the assumption that this separation provides protection because it provides a space in which dilution and dispersion of odour can occur.[42]

119 In a later decision involving the same parties, the Tribunal said:

The basis of the works approval, as we understand it, is that it was supposed to achieve compliance with [the SEPP (AQM)]. The [SEPP (AQM)] looks for not more than [1 OU] (which is a barely perceptible level of odour) at the boundary of the premises under normal operating conditions. A buffer distance separation from sensitive land is to give protection in relation to "upset" conditions when something might go wrong...[43]

120 Aleksandar Todoroski, an expert air quality engineer called by the proponent, described the process of measuring odour concentration in these terms:

Odour concentration is measured by a panel of trained 'noses' (i.e. people) working in a specialised odour free laboratory under controlled conditions. The panel is presented with highly diluted odour from the sample through a device known as an olfactometer. The dilution is progressively reduced until half of the panel believe that there may be an odour present. The level of dilution of the sample at this time is the odour concentration of the sample. Note that the panellists do not attempt to identify the source or nature of the odour, only to indicate when there is a sensation of odour. By definition, 1 OU is the level of odour of an undiluted sample (i.e. as in the air that was measured). Such a level of odour might be sensed, but not recognised by only half of a panel or trained experts under controlled laboratory conditions. Thus it can be seen that in a common situation that may arise in the field it would not be reasonably possible to detect such an odour.

The testing can be extended by progressively reducing the dilution over a range of concentrations where the sample odour character and hedonic tone are tested.

121 The EPA has principal responsibility for the implementation of the SEPP (AQM) and can employ both statutory and non-statutory instruments and measures.[44]

122 The SEPP (AQM) provides for the EPA to have comprehensive functions and powers. They include the issue or use of:

(a) licences, works approvals and notices under the EP Act;

(b) enforcement programs, and complaint investigations;

(c) protocols and guidelines for environmental management; and

(d) risk assessment principles, practices, and protocols.[45]

123 Some of these functions and powers are amplified in the subsequent clauses of the SEPP (AQM). Clause 16 deals with risk assessment, empowering the EPA to require an emissions generator to undertake a risk assessment as to the impact of emissions on the beneficial uses of the environment[46] and to use the findings of a risk assessment in making statutory decisions.[47] An emission generator may elect to undertake a risk assessment to better understand the impact of emissions on beneficial uses.[48]

124 Clause 28 provides that the EPA 'may' require a generator of emissions to:

(a) model the transport and dispersion in the air environment of emissions;

(b) for new sources of emissions, demonstrate that the model predictions meet the relevant design criteria; or

(c) in the case of odorous emissions for which design criteria are not established, demonstrate that local amenity will not be adversely affected by offensive odours.

125 This is not a case where cl 28(1)(c) is engaged, as a design criterion for general odour is established in sch C.

126 Clause 2(d) gives guidance as to the underlying intent of the policy, providing that if the design criteria are not met, the proponent may carry out a health risk assessment to demonstrate that there will be no adverse impact from the proposal.

127 It is an unlikely and impractical construction of cl 2(d) that if modelling shows that 1 OU for general odour cannot be attained on the boundary of a landfill site, the conduct of a health risk assessment is the only step that a proponent is permitted to take to demonstrate that there will be no adverse impact on the air environment.

128 Clause 2(d) must be read in context with the principal provisions of the SEPP (AQM). Clause 16(3) specifically provides for an emission generator to undertake a risk assessment to better understand the impact of emissions. Clause 19 directs a new emission generator to apply best practice to the management of air emissions. The conduct of a health risk assessment is most relevant to air toxic substances such as those found in indicator classes 1, 2 or 3 that are injurious to health, rather than for general odour which is not injurious to physical health.

129 The explanatory notes speak of a risk assessment being considered 'taking account of site-specific circumstances and demonstrating that the beneficial uses of the environment are protected'.[49] While an endnote is not part of an Act or subordinate instrument,[50] consideration can nonetheless be given to it.[51]

130 The impact assessment refers to a risk assessment as enabling emissions generators to better assess the impact of their emissions on the surrounding environment.[52] It specifically provides that if the design criteria cannot be met, or impose an unreasonable practical or financial burden on a company, a risk assessment may be undertaken and submitted to the EPA for consideration.[53]

131 The impact assessment also refers to a risk assessment as having particular importance if a proposal for new premises is unable to meet the design criteria.[54] The impact assessment states that modelling is only a guide to performance, and is not a measure of determining compliance with the policy, and that a risk assessment could be used to help assess if the beneficial uses of the environment are being protected.[55] The impact assessment refers to the policy as spelling out more clearly the use of risk assessment where design criteria cannot be met to allow special circumstances to be met on a case by case basis.[56]

132 I am satisfied that cl 28(1) of the SEPP (AQM) does not impose an obligation on an emission generator to conduct modelling unless directed by the EPA to do so for the following reasons:

(a) cl 28(1) commences with the expression '[in] addition to managing emissions in accordance with [cls] 18, 19 and 20' which suggests that an additional management power is intended to be conferred;

(b) a plain reading of cl 28(1) suggests that it imposes an obligation on an emission generator to conduct modelling only if required by the EPA;

(c) the use of the word 'may' in cl 28(1) suggests that a discretion is conferred on the EPA;

(d) cl 13 lists functions and powers conferred on the EPA to assist in meeting its statutory responsibilities. Clause 28(1) should be read as one of the EPA's powers;

(e) cl 28(1) should be read consistently with cl 16(3) and (4) which authorise the conduct of a risk assessment;

(f) cl 16(5) specifically provides that the EPA may use the findings of a risk assessment in making statutory decisions or determining whether an emissions generator complies with policy;

(g) s 45(1) of the IL Act provides that the word 'may' when used in a subordinate instrument (such as the SEPP (AQM)) shall be construed as meaning that the power so conferred may be exercised, or not, at discretion; and

(h) s 45(3) of the IL Act provides that the provisions of s 45 have effect notwithstanding any rule of construction to the contrary.

133 There are additional reasons why cl 28(1) should be read as conferring a discretionary power:

(a) cl 28(1)(a) is linked to cl 28(1)(b) by the word 'and'. If the word 'may' at the start of cl 28(1) were read as 'must', it would mean that every emission generator must model the transport and dispersion of emissions regardless of the identity of the generator, the nature of the emissions or the circumstances of the case. This would be absurd and impractical where modelling was unnecessary, unduly expensive, or unlikely to be effective or reliable. Modelling may be inappropriate or disproportionate where the application is for a minor change or where the applicant has independently provided justification;

(b) modelling gives rise to computer based predictions dependent on inputs such as temperature, wind speed, atmospheric conditions, waste composition, area of exposed waste, duration of exposure and topography. In reality, some inputs are based on assumptions while outcomes are also affected by factors such as management practices and receptor sensitivities, which may be difficult or impossible to model; and

(c) modelling is easier and likely to be more successful with a stationary point source but is more difficult and uncertain with diffuse variable sources of emissions.

134 In Finance Facilities Pty Ltd v Federal Commissioner of Taxation, Windeyer J held that the word 'may' was not only an empowering word but could be a power that had to be exercised in a particular context of words and circumstances.[57] In that case, the Commissioner of Taxation was obliged to allow a further rebate to the taxpayer after the Court had found the rebate to be payable. The High Court reached a similar result in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd, a case involving the overpayment of stamp duty.[58]

135 In Returned & Services League of Australia (Victorian Branch) Inc., Glenroy Sub-Branch v Moreland City Council & Anor, Hayne JA held that the use of the word 'may' in a planning provision that permitted 'social and economic circumstances' to be considered by the Tribunal in a planning matter, conferred not merely a discretion but authority which must be exercised, if the circumstances were such as to call for its exercise.[59]

136 In Konann Pty Ltd v Casey City Council, the Court of Appeal rejected a submission that an apparent discretion was obligatory:

This was not a case where there was a clear obligation to repay or refund if certain conditions were met. The Council was required to make a decision of an altogether different and more complex character involving what the judge described as 'multifactorial decision making', that is, involving the balancing of potentially conflicting factors, the making of an evaluative judgment and the consideration of expert material. In these circumstances, 'may' does not mean 'must'.[60]

137 The present case calls for the Tribunal and the EPA to balance potentially conflicting factors and make an evaluative judgment after considering expert material. The considerations may be complex and involve issues that are difficult to resolve, and where reasonable persons might differ. The evaluation of modelling evidence is a very good example. Clause 28(1) of the SEPP (AQM) is simply not a place where 'may' could mean 'must'.

138 The text, context and purpose of the power in cl 28(1) to require modelling confirms that the power should be viewed as part of the EPA's general armoury of powers to address emissions and assess new proposals. There is nothing that suggests that the EPA's power to require modelling in cl 28(1) should be compulsory, or is anything other than a discretionary power to be exercised as the EPA considers appropriate.

139 All applications for works approvals depend on their own facts and circumstances. In the present case, the Tribunal found, and all experts agreed, that a risk assessment of odour impacts required odour frequency, intensity, duration, offensiveness (character) and location ('FIDOL factors') to be considered.[61]

140 A final reason for rejecting the developers' submission arises from the nature of decision-making under the EP Act. Parliament has given central prominence to the principles of environment protection and created a legislative framework for environment protection based upon the application of those principles.[62]

141 Review of the principles of environment protection shows that Parliament has stated in the clearest terms that decision making under the EP Act shall take into account the wide range of matters set out in the principles. The nature of decision making that Parliament has directed will ordinarily require the assessment and weighting of relevant factors, and the resolution of conflicting considerations. Decision-making requires careful and integrated consideration of the principles of environment protection and of all relevant matters to produce the best possible outcome.

142 Clause 28(1) of the SEPP (AQM) was not engaged in the present case. Clause 2(d) is not an exhaustive code. A proponent may adduce evidence other than a health risk assessment to show that there will be no adverse impact from a proposal. It would be inconsistent with cl 16(5) if this were not the case. There is no apparent reason why the draftsperson of the SEPP (AQM) would intend that a proponent be denied the opportunity to provide a risk assessment or to adduce evidence that a proposal, while not achieving 1 OU at the boundary of the premises or beyond, would not adversely affect local amenity by reason of offensive odour.

143 Clause 28(1) and sch A and C should be given a practical and workable interpretation consistent with the purposes of the EP Act and the SEPP (AQM). A proponent is entitled to use expert evidence, risk assessment, best practice or other means to show that local amenity will not be adversely affected by offensive odours.

144 A health risk assessment is likely to be apposite in the case of Class 1, 2 or 3 indicators involving substances potentially injurious to health rather than general odours that do not ordinarily involve a physical health risk.

145 I accept that s 37A(c) of the EP Act required the Tribunal to give effect to the SEPP (AQM) and SEPP (AAQ) and to implement them as policies. This requires the policies to be construed and applied to the facts of the present case. This is what the Tribunal did.

(a) the 1 OU criterion was a design criterion and did not mean that the application for works approval had to be refused if 1 OU could not be maintained on the boundary of the landfill site or beyond;

(b) the health risk assessment was only one means of demonstrating that a proposal did not cause any adverse local amenity effect;

(c) when the Tribunal used the term 'risk assessment' it used the term correctly;

(d) in giving effect to the SEPP (AQM), the Tribunal was entitled to take a holistic approach and was required to apply the principle of integration of economic, social and environmental considerations in its decision making process; and

(e) the Tribunal concluded that if the works were completed in accordance with the works approval as varied, the use of the works will not result in any emission of odour to the environment that will unreasonably and adversely affect the interests of any of the applicants or that will be inconsistent with the SEPP (AQM), the WMP (SDM) or the BPEM.[63]

147 The Tribunal did not make an error of law in its interpretation of cls 10(4) and 28 of the SEPP (AQM). Clause 28(1) did not impose an obligation or duty on the EPA or the Tribunal to direct the proponent to model the transport and dispersion of emissions. When the Tribunal spoke of the conduct of a risk assessment, that is exactly what it intended. There is nothing in sch A or C that suggests that the EPA or the Tribunal was obliged to refuse the application for a works approval because modelling did not demonstrate that general odour would never exceed a design level of 1 OU at the boundary of the land or beyond. The Tribunal did not fail to implement the applicable policies, but gave effect by applying them in their terms as properly construed. The Tribunal did not exceed its jurisdiction or adopt a wrong test.

Question 2: Did the Tribunal err and misdirect itself at paras [195] and [197] by proceeding on the basis of the following analysis:

(a) if the odour emission exceeds the 1 OU criterion, then further assessment of the possible impact on beneficial uses is required to ascertain whether the objectives will be met;

(b) the intent of the SEPP (AQM) is that if emissions modelling predicts a non- compliance with design criteria at the boundary, this is not the end of the application for works approval;

(c) further consideration of the effects can be undertaken by consultation between the applicant for works approval and the EPA;

(d) a risk assessment approach can be applied to understand the effect of these emissions; and

(e) it is a matter for the 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?

Ground 2: The Tribunal erred in law in proceeding on the basis of the above analysis?

149 Question 2 raises very similar issues to those raised in Question 1, and can be dealt with briefly.

150 The developers reiterated previous submissions, stating that:

(a) an air quality modelling report was required by the works approval application form;

(b) the proponent provided modelling evidence which the Tribunal found unreliable; and

(c) the health risk assessment was the only 'escape clause' from the requirement to meet the 1 OU standard, which was not provided by the proponent.

(b) the failure of modelling to meet one or more design criteria was not determinative of whether the emission generation complies with the SEPP (AQM);

(c) the EPA could employ a range of measures to assess the proposal including a risk assessment;

(d) it would be bizarre if the Tribunal was bound to rely on modelling that it did not consider to be sufficiently reliable;[64] and

(e) it was open to the Tribunal to undertake a qualitative assessment of the proposal.

153 I accept the submissions of the EPA and the proponent. Under cl 28(1), the EPA and the Tribunal had a discretion to require the proponent to undertake modelling. The discretion was not exercised. The proponent submitted modelling evidence with the works approval application. Other parties also provided modelling evidence in support of their cases. The Tribunal found that the modelling evidence was unsatisfactory, and undertook a qualitative assessment of the proposal based on the considerable volume of evidence it had before it.

154 Schedule A provides for a design criterion of 1 OU for general odour to be applied at and beyond the boundary of premises. Clause 2(c) is to like effect. Compliance with the 1 OU standard at the boundary of premises or beyond is not obligatory but is a guide to assessment. A health risk assessment can be undertaken under cl 2(d) to demonstrate that there will be no adverse impact from the proposal.

155 A health risk assessment is not the only means of demonstrating that there is no adverse impact on local amenity. This may also be done by a risk assessment under cl 16(3)-(5) or by other means. Clause 16(5) expressly provides that the EPA may use the findings of a risk assessment in making statutory decisions or determinations whether an emission generator complies with the policy. The EPA may employ any of the means set out in cl 13(2) to assess a proposal, undertake consultation or impose conditions.

156 It was open to the Tribunal to make the findings that it did. It considered the evidence at length to arrive at the factual findings and conclusions in its reasons. The developers have not shown that any error of law was made in the Tribunal's analysis.

Question 3: Did the Tribunal err in failing to give proper, genuine and realistic consideration to whether the proposal complies with, and gives effect to, cl 9(1)(c) of the SEPP (AQM) which requires that local amenity and aesthetic enjoyment are protected beneficial uses?

Ground 3: The Tribunal erred in law in concluding that the proposal was consistent with SEPP (AQM) when the local amenity and aesthetic enjoyment are not protected.

Question 4: Did the Tribunal at para [210] err and misdirect itself, or alternatively misconstrue cl 9(1)(c) of the SEPP (AQM) or the BPEM, in concluding that 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?

Ground 4: The Tribunal erred in law in concluding that 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.

158 It is convenient to deal with questions 3 and 4 together as they deal with the Tribunal's findings as to local amenity and aesthetic enjoyment having regard to odour emission from the landfill.

159 The developers criticised the Tribunal's findings concerning local amenity and the impact of offensive odours by submitting that:

(a) the Tribunal's observation that amenity and its loss is, to a degree, subjective and dependent on the sensitivity of individuals and their perception of odours is unhelpful and not an appropriate basis on which to proceed;[65]

(b) the Tribunal's observation that '[l]oss of amenity will arise when offensive odours are experienced to such an extent that the environment becomes unsuitable for its intended use, be it a current or a reasonably foreseeable future use' is difficult to understand, as at no stage was a situation created where land became unsuitable for residential use;[66]

(c) the Tribunal applied the wrong test when it came to an assessment of amenity. While the adverse effect on amenity had to be unreasonable, it did not have to be so unreasonable that residents could not live in their own homes; and

(d) the Tribunal's observation that its 'role is a prospective one, requiring [it] to consider (among other things) whether the future use of the new cells will have a similar impact to past operations involving existing cells, and whether future impacts will be inconsistent with relevant policies or will be unreasonable' does not accurately reflect the words of the legislation or earlier formulations by the Tribunal.[67]

160 The developers noted that the Tribunal accepted that:

(a) there had been odour impacts of an unreasonable nature beyond the landfill boundary;[68]

(b) the landfill presented a real potential for offensive odours to be generated beyond the boundary, which would affect the amenity of nearby receptors;[69] and

(c) the evidence did point to offensive odours persisting for sustained periods around the Remand Centre, general prison complex and some residential areas.[70]

161 The developers then criticised the Tribunal's findings that:

(a) none of the applicants for review had demonstrated that such a preferred migration direction will translate to offensive odours, as areas to the south were of low sensitivity; [71]

(b) it was not enough that occasionally some odours may be detected beyond the boundary of the landfill;[72]

(c) 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 current use or reasonably foreseeable future use;[73] and

(d) if the works are completed in accordance with the works approval as varied, the use of the works will not result in any emissions of odour to the environment that will unreasonably or adversely affect the interests of any of the applicants or that will be inconsistent with the SEPP (AQM), WMP (SDM) or the BPEM.[74]

(a) unless the developers' criticisms were grounded in a question of law, they were not properly before the Court;

(b) the developers had engaged in an overly pernickety and unfair review of selected sentences of the Tribunal's lengthy decision;

(c) cl 9(1)(c) of the SEPP (AQM) protected the beneficial uses of local amenity and aesthetic enjoyment, but did not impose any obligation;

(d) a failure to meet the design criteria was a trigger for further work to be conducted, but did not mean that the proposal would adversely affect the beneficial uses of the air environment;

(e) the Tribunal made factual findings that the proposed new landfill cells would not generate offensive odours beyond the boundaries of the landfill site; and

(f) the factual findings that the new landfill cells would not generate offensive odours beyond the boundary of the subject land were decisive of the issue.

163 The proponent adopted the EPA's submission, and also submitted that:

(a) there was no binding obligation created by cl 9(1)(c) of the SEPP (AQM);

(b) it was an unfair reading of the word 'unsuitable' to conclude that the Tribunal required that residents could not live in their homes;

(c) what the Tribunal said was that loss of amenity will arise when odours are experienced to such an extent that the environment becomes unsuitable for its intended use;[75] and

(d) this was made clear when the Tribunal said that the interest in respect of odour is one of people enjoying or having available to them an agreeable or pleasant context within which to reside, work or visit.[76]

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]

In undertaking our assessment, it is important to remember it is not enough that occasionally some odours may be detected beyond the boundary of the landfill. 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 current use or reasonably foreseeable future use. [78]

166 Following its consideration of buffers, the Tribunal said:

We have concluded from our assessment of odour it is likely that odour emissions may occur at the boundary of the landfill facility which would be offensive to populations in sensitive land use settings, such as those listed in the BPEM. As such, a buffer between the boundary and sensitive land uses is appropriate to maintain a suitable separation from these boundary conditions.

We have also concluded that the risk of offensive odour impacting on surrounding land uses is likely to vary with direction.[79]

It will be apparent from our consideration of the odour issues that from time to time odour will be emitted beyond the boundary of the landfill site. It may be that sometimes the strength of the odour may be offensive to some of the population. However, we have also been satisfied that the conditions of the works approval... achieve best practice management of the landfill to minimise the risk of these emissions occurring. This is an outcome that is consistent with relevant policy and, as a proportionate response to the harm being caused, is an appropriate balance of integrated decision-making given the other societal, environmental and economic outcomes achieved through the continued operation of the [landfill].[80]

168 The fundamental legal principles that govern an appeal under s 148 of the VCAT Act include that:

(a) the Tribunal is an expert body, and it is inappropriate to seek out error, examine the reasons in an overly legalistic manner, or to over-zealously draw inferences in order to disclose some supposed error;[81]

(b) in reviewing a Tribunal decision, the Court exercises 'practical as well as principled restraint' and is not 'concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts';[82] and

(c) the Tribunal's reasons for the decision under review 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.[83]

169 The Tribunal described the interest of residents in a residential area in respect to odour as:

one of people enjoying or having available to them an agreeable or pleasant context within which to reside, to work or to visit.[84]

170 All parties agreed with this statement. The Tribunal's description of the concept of amenity is unexceptional and consistent with similar statements cited by the Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.[85]

171 The Macquarie Online Dictionary ascribes meanings to the word 'amenity' that relevantly include 'the quality of being pleasant or agreeable in situation, prospect, disposition' and 'pleasantness'.[86]

172 The word 'amenity' is an ordinary English word and is not defined in the EP Act or the Planning and Environment Act 1987 (Vic). In Hazelwood Power Partnership v Latrobe City Council, the Court of Appeal said:

The meaning of ordinary English words is a question of fact. A conclusion that the statute uses words in their ordinary meaning does not require (and indeed precludes) a further definition of the words. The words are to be treated in effect as the best words to describe the relevant concept.[87]

173 I accept the submissions of the EPA and the proponent. The Tribunal was fully aware that the beneficial uses applicable to odour under the SEPP (AQM) and SEPP (AAQ) were local amenity and aesthetic enjoyment,[88] referring to beneficial uses or to local amenity on numerous occasions. The Tribunal held that:

(a) on the conditions to be included in the works approval, odour emission will not have an unreasonable and adverse amenity effect on the air environment surrounding the landfill by way of offensive odours;[89] and

(b) the works approval would not result in any emissions of odour to the environment that will unreasonably or adversely affect the interests of any of the applicants or that would be inconsistent with the SEPP (AQM), the WMP (SDM) or the BPEM.[90]

174 Ground 3 is based on a misconception. It assumes that the beneficial uses of local amenity and aesthetic enjoyment were not protected, when the Tribunal found the reverse to be the case. The effect of the proposal on beneficial uses was comprehensively considered by the Tribunal. A failure to meet the design criteria did not indicate that the proposal would adversely affect the beneficial uses of local amenity and aesthetic enjoyment. The Tribunal had a great deal of evidence before it after a long hearing, and was satisfied on the evidence with the proposal. No error of law on the question posed has been shown.

175 I accept the submissions of the EPA and the proponent. As the proponent submitted, the developers' argument that the Tribunal misunderstood the concept of amenity is dependent on the meaning ascribed to the word 'suitable'. The word 'suitable' is capable of many different shades of meaning. The meaning of 'suitable' found in the Macquarie Online Dictionary includes 'appropriate', 'fitting', and 'becoming'[91] while synonyms typically given for the word include 'acceptable', 'satisfactory', 'fit', and 'worthy'. It is highly unlikely that the Tribunal intended the word 'unsuitable' to mean that the odour was so offensive that it was impossible for residents to continue to live in their homes. Nowhere does this or any similar expression of view appear in the Tribunal reasons.

176 The developers' argument is founded upon suggested looseness in the language used by the Tribunal. As the Court of Appeal said in OUX and again in Ferris, the Tribunal is an expert body and it is inappropriate to seek out error, engage in undue legalism or draw over-zealous inferences to support a supposed error.[92] The Court must exercise practical as well as principled restraint, and is not concerned with looseness of language or unhappy phrasing of the Tribunal's thoughts.[93]

177 As an expert planning body, the Tribunal has a very high familiarity with the concept of amenity - a basal concept in planning law - including in the air environment. It described the interests of residents in respect to odour as 'one of people enjoying or having available to them an agreeable or pleasant context within which to reside, to work or to visit.'[94] It is highly likely that this is the meaning that the Tribunal intended applied when considering whether offensive odours are experienced to such an extent that the environment becomes unsuitable for an intended use.[95]

178 In my view, the developers have not succeeded in showing that the Tribunal adopted a wrong test. Rather, they have done no more than highlight a word capable of different shades of meaning and ascribed a particular meaning to the Tribunal. Having regard to what the Tribunal said elsewhere in its reasons, it is very unlikely that the Tribunal erred as to the test that it adopted and applied.

179 I also accept the EPA's and proponent's submissions that the developers have not shown that the error (assuming that there was one) was a vitiating error. This is because the Tribunal made a positive finding of fact that when works were completed in accordance with the works approval as varied, the use of the works will not result in emissions of odour that will unreasonably or adversely affect the interests of any of the applicants or be inconsistent with the SEPP (AQM), the WMP (SDM) or the BPEM.[96]

180 The following is the clear chain of findings of fact and reasoning that led the Tribunal to this conclusion:

(a) the new cells were to be located over 2km west of the existing facility. At this distance, the monitoring data indicated that waste odours dissipate to a level that is described as weak to very weak, if at all discernible;[97]

(b) when the deposition of waste is properly managed in accordance with the BPEM to minimise the emission of odours, waste odour emissions will not be offensive to the workers and inmates of the Remand Centre and prison complex;[98]

(c) the distance to residential areas to the north and west of the landfill site is further from the active filling cells;[99]

(d) the new cells would be approximately 1.5km from the residential areas nominated under the Mt Atkinson and Tarneit Plains Precinct Structure Plan. The evidence was that the migration of odours in the north-west direction was less frequent than other directions, as was demonstrated in all of the numerical models;[100]

(e) stable atmospheric conditions conducive to the low dispersion of migrating odour fumes in this direction were considered to be infrequent;[101]

(f) there was a lesser risk of odours of sufficient character and strength to be offensive impacting those areas to the north-west;[102]

(g) closer to the north-west and west boundary, future uses were less sensitive, being commercial and industrial uses;[103]

(h) land to the south was of most concern but was zoned Farming and beyond that, Urban Growth Zone. The potential for frequent and distinct odour to be experienced in open grazing land infrequently visited by workers and landowners was very low;[104]

(i) further to the south, the land was likely to be developed for industrial or commercial use. It was of some concern that this may occur within 1.5km of the early proposed cells notwithstanding the lower sensitivity of these land uses;[105]

(j) none of the applicants had demonstrated to a reasonable level of certainty that a preferred migration direction would translate into offensive odours in areas to the south where there were poor dispersion conditions having regard to the frequency of light winds and stable atmospheric conditions. It was difficult to conclude that areas to the south would be affected by odours that will adversely impact the amenity of industrial or commercial areas;[106] and

(k) the intermittent very weak to weak odours that might travel to residential land to the south beyond the industrial land would not be sufficient to be offensive to residential amenity.[107]

181 In view of these findings, the Tribunal was not satisfied that the amenity of areas neighbouring the proposed new cells was likely to be adversely affected by offensive odours. The case put by the developers and other applicants to the Tribunal would have failed in any event.

Question 5: Did the Tribunal err in failing to give effect to cl 15(3) of the WMP (SDM) which requires that an applicant for a works approval must meet:

(i) air quality objectives are met, including the prevention of offsite nuisance odour (as set out in section 6.7 of the BPEM); and

(ii) there is no loss of amenity from odour; and

(b) the required outcome of the BPEM of prevention of any offensive odours beyond the boundary of the premises?

Ground 5: The Tribunal erred in law in concluding that the above objectives were met.

(a) the relevant BPEM objective is 'to ensure that air quality objectives are met, and that there is no loss of amenity from odour...';[108]

(b) '[p]revention of any offensive odours beyond the boundary of the premises' was a required outcome;[109]

(c) the required outcome was specific, leaving little scope for choice;

(d) meaning must be given to the word 'any' in the phrase 'any offensive odours';

(e) the language and text of the BPEM reflected a deliberate choice and imposed an onerous requirement; and

(f) the Tribunal erred when it held that the objectives and required outcome of the BPEM were met.

(a) cl 15(3) of the WMP (SDM) relevantly provided that an applicant for a works approval must meet the objectives of the BPEM and each required outcome;

(b) the Tribunal made factual findings that the proposed new landfill cells would not generate offensive odours beyond the boundary of the subject land;[110]

(c) the Tribunal specifically found that if the works are completed in accordance with the works approval, they would not be inconsistent with the SEPP (AQM), the WMP (SDM) or the BPEM.[111]

(d) the Tribunal's factual findings are not challenged; and

(e) the Tribunal had regard to cl 15(3) of the WMP (SDM) and to the relevant parts of the BPEM and found that the policy requirements were met.

185 The proponent described the ambiguities in the policy documents as to objectives:

(a) cl 15(3)(b) and (c) of the WMP (SDM) provide that an applicant for works approval for a landfill site must meet the objectives and each required outcome of the BPEM. Section 1.1 of the BPEM sets out its objectives. There are also relevant environmental performance objectives contained in the BPEM;

(b) cl 6.7 of the BPEM made provision for air quality management objectives at a landfill including the prevention of offsite nuisance odours. However, there was a difference between air quality management objectives and air quality objectives;

(c) cl 2(2) of the SEPP (AAQ) provided that it was a purpose of the SEPP (AAQ) to include all ambient air quality objectives relevant to Victoria in the SEPP (AAQ); and

(d) environmental quality objectives were addressed in cl 18 and sch 2 of the SEPP(AAQ).

Summary of Tribunal reasons concerning the BPEM

186 The Tribunal reviewed the BPEM at some length noting that it was a generic document that applied to landfills accepting certain types of waste.[112] It observed that the content and structure of the BPEM were far more comprehensive than the WMP (SDM). The BPEM was 'intended to be used as a default position for landfill siting, design, operation and rehabilitation'.[113]

187 The Tribunal also noted that the BPEM provided that where a landfill operator believes that for a particular section of the guidelines, alternative means can achieve the objectives and required outcomes, a risk-based assessment will be required to support the proposed alternative measure. If the EPA believes that additional requirements are needed to protect the environment, then this will also be supported by a risk-based assessment.[114]

188 The Tribunal remarked that it was difficult to apply the BPEM literally as its structure included not only objectives, requirements and suggested measures to comply with cl 15(3) and (4) of the WMP (SDM), but also a considerable body of text of an advisory nature that used terms such as 'require', 'should', 'should include' and 'must'.[115]

189 The Tribunal accepted that the objective of the WMP (SDM) and BPEM was to ensure that there was no loss of local amenity in the area surrounding the landfill.[116]

190 After an extensive review of the facts and evidence, the Tribunal addressed the question of whether the odour emissions would have an adverse amenity impact on the air environment surrounding the landfill by way of offensive odours referring to the BPEM.[117] It concluded that, if the works were completed in accordance with the works approval as varied, the use of the works would not result in any emissions of odour to the environment that would be inconsistent with the BPEM.[118]

191 I accept the submissions of the EPA and the proponent. The Tribunal gave detailed attention to the provisions of the BPEM. It found on the facts that the works would not result in offensive odour emissions that would have an unreasonable or adverse impact on the air environment,[119] or be inconsistent with the BPEM.[120]

192 It was plainly open to the Tribunal to arrive at the conclusions that it did. The Tribunal's findings are conclusions of fact made on the evidence before it. There is no error of law in the conclusions reached by the Tribunal concerning the BPEM.

Question 6: Did the Tribunal, in concluding at para [211] that in the absence of dispersion modelling the Tribunal may or must 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), err and misdirect itself?

Ground 6: The Tribunal erred in law in concluding that in the absence of dispersion modelling the Tribunal may or must 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).

Question 7: Did the Tribunal in ignoring, alternatively, not relying on or not taking into account, the evidence about the modelling of the transport and dispersions in the air environment of emissions when the Tribunal was required to consider that evidence in light of the proper construction of the statutory scheme:

(b) fail to give proper, genuine and realistic consideration to whether the proposal complies with the SEPP (AQM) design criterion of 1 OU?

Ground 7: The Tribunal erred in law in ignoring, alternatively, not relying on or not taking into account, the evidence about the modelling of the transport and dispersions in the air environment of emissions when the Tribunal was required to consider that evidence in light of the proper construction of the statutory scheme.

193 Grounds 6 and 7 raise issues related to the issues raised in grounds 1 and 2.

194 The developers reiterated their arguments that modelling was mandatory, and must show compliance with the 1 OU design criterion for general odour at the boundary of the premises. They said that the Tribunal should not have undertaken a qualitative assessment of the non-modelling evidence, or concluded that there would be no offensive odour beyond the boundary of the premises in the absence of a health risk assessment.

(a) neither the EPA nor the Tribunal was disabled from performing its statutory tasks if modelling was not required, or did not prove robust or trustworthy;

(b) the EPA and the Tribunal were not limited to a health risk assessment in the event that design criteria were not met;

(c) the Tribunal was not required to make findings dependent on modelling that it considered to be unreliable;

(d) the Tribunal was entitled to carry out a qualitative assessment as to whether there would be any loss of local amenity; and

(e) the Tribunal was entitled to take a flexible approach that was adapted to the particular circumstances of the case.

196 The proponent adopted the EPA's submissions contending that ground 6 necessarily fails with the failure of ground 1.

197 I accept the submissions of the EPA and the proponent, and find that:

(a) cl 28(1) of the SEPP (AQM) is discretionary, empowering the EPA to require an emission generator to conduct modelling;

(b) there is no obligation on an emission generator under cl 28(1) of the SEPP (AQM) to conduct modelling in the absence of a requirement by the EPA;

(c) the parties were entitled to rely on qualitative evidence before the Tribunal;

(d) the Tribunal was entitled to rely on all of the evidence before it; and

(e) the design criteria are for guidance and do not impose a mandatory requirement. Even if the design criterion for general odour was not met, the proponent was able to prove that the applicable policies and standards could be achieved by other means including by risk assessment.

(a) the Tribunal ignored the fundamental outcomes of the modelling evidence and the design criterion of 1 OU on the boundary;

(b) the Tribunal did not rely on any of the modelling evidence; and

(c) the Tribunal was bound by the statutory framework to take account of the modelling evidence and findings.

(a) the Tribunal was correct when it recognised that cl 28(1) conferred a discretion to require modelling but did not impose an obligation to do so;

(b) the question of consistency with policy may fall to be determined without modelling;

(c) in performing this task, the EPA and the Tribunal will have regard to the evidence and material before it including the findings of any risk assessment; and

(d) the Tribunal's decision was sound and correct in law.

201 The proponent submitted that the Tribunal did not ignore the evidence at all. It gave genuine and realistic consideration to the modelling evidence, and concluded that it did not provide a reliable indicator as to future events.

202 Ground 7 is without merit. The Tribunal gave careful consideration to the modelling evidence, and took it into account.[121] It concluded that the modelling undertaken by the expert witnesses was not sufficient to rely on in its assessment of the landfill proposal. The Tribunal had extensive regard to the design criterion for general odour of 1 OU at and beyond the boundary.[122] It gave careful consideration to the survey evidence and all of the other evidence before it in making its decision.

Question 8: Did the Tribunal at para [278] deny the developers natural justice and procedural fairness, or fail to act fairly as required by s 97 of the VCAT Act, in concluding that it is unlikely that the odours, which the lay residents gave sworn evidence about, emanated from the landfill when:

(a) that had not been put to the lay witnesses at the hearing, whether in cross- examination or otherwise; and

(b) the written closing submissions on behalf of the proponent conceded that the lay witnesses called to give evidence gave honest accounts of their experiences of odour and of their subjective beliefs as to the offensiveness and source of that odour?

Ground 8: The Tribunal erred in law in concluding that it is unlikely that the odours, which the lay residents gave sworn evidence about, emanated from the landfill.

(a) 11 residents who live near the landfill gave sworn evidence about the odour they had perceived, the source of the odour and the effects of the odour on them;

(b) they were not cross-examined by senior counsel for the proponent;

(c) senior counsel for the EPA cross-examined the first resident only on a non-odour issue;

(d) the evidence of the residents was that the use of the landfill cells causes offensive odours in surrounding residential areas at distances up to 4-5km from the landfill;

(e) no party sought to make a case that the residents' evidence was untruthful;

(f) although members of the Tribunal asked questions, the Tribunal did not foreshadow that it doubted, or might not accept the residents' evidence;

(g) the proponent's closing submissions conceded that the lay witnesses gave honest accounts of the experiences of odour and that the failure to cross-examine the residents was a relevant matter to be taken into account;

(h) the Tribunal made findings of fact doubting the evidence of the residents; and

(i) this constituted a failure by the Tribunal to act fairly and afford natural justice.

205 The developers stated that the EPA and the proponent both submitted to the Tribunal that it should rely on testing, verification and survey evidence because that was more reliable.

206 The EPA observed that the question and ground were fundamentally flawed as the Tribunal did not find that it was unlikely that the odours of which the lay witnesses gave evidence emanated from the landfill. The Tribunal's conclusions were far more confined relating to specific evidence where offensive odours had been detected more than 5km from the landfill site.

(a) the forensic choice made by the EPA and the proponent not to cross-examine lay witnesses about their perception of odour or its source did not mean that those parties admitted the evidence given by those witnesses;

(b) a party is not required to challenge a witness's evidence in cross-examination if notice has already clearly been given of the party's intention to rely on such matters;

(c) the developers were on notice that the EPA and the proponent did not accept that the evidence of the lay witnesses established that the landfill generated odours more than 5km from the landfill boundary;

(d) the content of procedural fairness was informed by what was fair in the circumstances of the particular case;

(e) the developers have not shown that the alleged breach of procedural fairness was material to the decision;

(f) the lay witnesses were not parties to the Tribunal proceeding and were not called by the developers;

(g) what was submitted to the Tribunal was not that the lay witnesses did not genuinely believe that the landfill generated odour that affected them, but that they were not trained to attribute odours, and did not know what other odour sources existed in the area to determine the sources of the odours that they had experienced; and

(h) the Tribunal should prefer the more robust and independent odour survey and monitoring evidence.

we conclude that what the evidence of the lay residents demonstrates is that, if not properly managed, the size of this landfill presents a real potential for offensive odours to be generated beyond the boundary, which would affect the amenity of nearby receptors.

However, we hold grave doubts that such historical odour events impacted residential amenity to the extent put to us by Stop the Tip. In some cases, evidence was given of offensive odours being detected more than 5km away. We consider it is unlikely that these odours emanated from the landfill. On the other hand, we consider the evidence does point to strong, unpleasant odours, i.e. offensive odours, persisting for sustained periods...

So far as the history of odour complaints is concerned, we find that the evidence demonstrates the type of potential impacts that may be caused if proper management of the landfill, in accordance with the BPEM and the SEPP (AQM), is not maintained. However, we do not agree with any suggestion by Stop the Tip or others that the evidence means the proposed new cells will, on the balance of probabilities, generate offensive odours beyond the site's boundary.

Our findings regarding the history of odour complaints and what they demonstrate must be understood in the context of our task in this proceeding. We are not undertaking an enforcement action against [the proponent]regarding past operation of the [landfill]. Our role is a prospective one, requiring us to consider (among other things) whether the future use of the new cells will have a similar impact to past operations involving existing cells, and whether future impacts will be inconsistent with relevant policies or will be unreasonable.[123]

(a) Mr Todoroski's assessment demonstrated that there were instances when the reports of landfill odours did not match downwind directions from the landfill;[124]

(b) the survey results confirmed the migration of odours beyond the site boundary but tempered the lay evidence of historical offensive odours persisting for many kilometres beyond the landfill boundary;[125]

(c) there had been odour impacts of an unreasonable nature beyond the landfill boundary including at the Remand Centre;[126]

(d) offensive odours had migrated well beyond the boundary possibly as far as 1.5km from the active cell;[127]

(e) the size of the landfill presented a real potential for offensive odours beyond the boundary;[128]

(f) it was unlikely that odours detected more than 5 km away emanated from the landfill;[129]

(g) offensive odours persisting for sustained periods had been experienced around the Remand Centre and general prison complex, and possibly the nearest residential areas to the east and north of the south-eastern corner of the landfill site;[130]

(h) the evidence did not mean that the proposed new cells will on the balance of probabilities generate offensive odours beyond the site's boundary;[131] and

(i) weight had been given by the Tribunal to the four surveys commissioned by the proponent and the odour monitoring undertaken by the EPA.[132]

211 I accept the EPA's submission that the question and ground are flawed. They are inaccurate and overstated, and for that reason must fail. The Tribunal did not decide what the developers are asserting in the question and the ground.

212 When complaint is made about the failure of a questioner to put questions to a witness, the famous rule in Browne v Dunn[133] comes to mind. It is easy to forget that the rule in Browne v Dunn does not apply to administrative tribunals.

213 In Re Minister of Immigration and Multicultural Affairs; ex parte Applicant S154/2002, the High Court pointed to the equivalent of s 98(1)(a) and (b) of the VCAT Act in federal legislation and held that the purpose of such a provision was to free bodies such as the Tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate.[134] The Court held that the rule in Browne v Dunn had no application to proceedings in the Refugee Review Tribunal.[135]

214 In Sullivan v Civil Aviation Safety Authority, the Full Court of the Federal Court held that there is no general rule in the Administrative Appeals Tribunal that a witness must be cross-examined to give him or her an opportunity to answer particular submissions or findings which may be made later.[136]

215 No distinction was made between the Refugee Review Tribunal and the Administrative Appeals Tribunal.[137]

216 The issue was revisited in Twentyman v Secretary, Department of Social Services.[138] Wigney J, speaking of the Administrative Appeals Tribunal, reviewed the authorities and held that although the rule in Browne v Dunn may not strictly apply to proceedings in the Tribunal, there may be circumstances where it would be a denial of procedural fairness for the Tribunal to make a finding of fact contrary to the evidence of a witness in circumstances where that finding was not put to the witness. The preferable approach is to address any issue arising from the failure to cross-examine the witness by reference to the principles of procedural fairness without recourse to the rule in Browne v Dunn.[139]

217 I agree with Wigney J. The true issue is not whether anything flows from senior counsel's forensic decision not to cross-examine, but whether there was any denial of procedural fairness to the developers by the Tribunal.

Was there a denial of procedural fairness to the developers?

218 In my view, it is plain that there was no denial of procedural fairness to the developers by the Tribunal arising out of the decision of senior counsel for the EPA and the proponent not to cross-examine the resident witnesses. This is for the following reasons:

(a) the issues in the proceeding were abundantly clear from the developers' own submissions and those of the other parties;

(b) the parties had voluminous information about the issues in the EPA's submissions and assessment, in the expert witness reports and in the Tribunal book, which exceeded 8,000 pages;

(c) the residents gave evidence on or after the seventh day of a 20 day hearing by which time the issues had been extensively canvassed;

(d) the witnesses were not parties to the proceedings;

(e) the witnesses were not called by the developers but by Stop the Tip (which was represented by experienced junior counsel);

(f) the Tribunal afforded counsel for Stop the Tip and counsel for the other parties a full opportunity of examining or cross-examining the residents;

(g) Stop the Tip has not submitted to the Court that there was a denial of procedural fairness to it; and

(h) there was no unfairness in the way the Tribunal hearing was conducted.

219 In Browne v Dunn, the House of Lords accepted that a party was not required to challenge a witness's evidence if notice had been clearly given of the party's intention to rely on a matter. The same principle has been accepted in many later decisions.[140]

220 Here, all parties were well aware of the controversy about past and likely future odour emissions. The evidence of the residents was one element of a large matrix of evidence and material dealing with the odour issue. That evidence included:

(a) the EPA Works Approval Application Assessment Report which set out the reasons for the EPA's decision. The report detailed odour surveillance studies undertaken under the guidance of the EPA from 2014 to 2016. The findings of this study include that detections of strong odours attributed to landfill origin were rare and highly variable beyond 1.5km from the tipping face;

(b) reports on air quality assessment prepared by air quality experts;

(c) extensive surveys by a private contractor retained by the proponent, including 1561 odour observations and targeted surveys;

(d) extensive written opening submissions by the parties;

(e) a map tendered by the proponent identifying the addresses of lay witnesses and of odour emitting sources in the area; and

(f) the evidence of expert and lay witnesses in the Tribunal proceeding.

221 In Bradto Pty Ltd v State of Victoria & Ors, Harper J noted that the rule in Browne v Dunn had not been complied with in a Tribunal hearing and held:

It is true that, if a witness is not cross-examined on a point, the cross-examining party may, depending upon the circumstances, be deemed to have accepted it. That party may, in like circumstances, be prevented from asserting that the court should not accept that point as true. On the other hand, the court cannot shut out reality, or deny the undeniable... These facts, and the others to which I have referred above, plainly speak to a different conclusion than that about which [the witness] gave evidence. And the Tribunal and this Court must work with the evidence, and only the evidence, that is available and admissible.

...It follows that [the witness's evidence] cannot with accuracy be said to be uncontradicted.[141]

222 The Tribunal was faced with a similar situation. Regardless of the fact that the lay witnesses were not cross-examined, it had to work with the whole of the evidence in the proceeding. The weight of the evidence pointed to a different conclusion, in some respects, from the evidence given by some lay witnesses. The Tribunal was obliged to make findings having regard to the weight of the evidence. It is the Tribunal that is the ultimate arbiter of facts.

223 Even when there has been a breach of procedural fairness (and I have held that there was none here) it is incumbent on the applicant for judicial review to show that the breach was material before jurisdictional or legal error can be established. The question of materiality is an ordinary question of fact in respect of which the applicant for judicial review bears the onus of proof. Like any ordinary question of fact, it is determined by inferences drawn from the evidence adduced on the application.[142]

224 This involves an assessment as to whether there is a realistic possibility that the Tribunal's decision could have been different if the breach of procedural fairness had not occurred.[143]

225 Given the very considerable volume of evidence and material before the Tribunal, the expert reports and evidence, the extensive odour surveys, and evidence of historical complaints, and the Tribunal's own expertise as to odour and air environment proceedings, I am not persuaded that more detailed questioning and cross-examination of the resident witnesses offered any realistic possibility that the Tribunal's decision would have been different.

226 While the residents did their best to recall the odours and their experiences during particular incidents, they were not experts or experienced in assessing odours. They were not knowledgeable of locations in the area from which odours might have emanated. Moreover, the only evidence from residents actually doubted by the Tribunal related to observations made by residents more than 5km from the landfill site. The Tribunal had expert evidence to support its conclusion that the cause of these odours was unlikely to be the landfill.

227 I am satisfied that ground 8 is not soundly based or substantiated and must fail.

Question 10: Did the Tribunal err in failing to give effect to cl 15 of the WMP (SDM) which requires that an applicant for a works approval must meet each required outcome of the BPEM, including providing buffers in accordance with Table 5.2 of the BPEM?

Ground 10: The Tribunal erred in law in concluding the proposal was consistent with the WMP (SDM) which requires that an applicant for a works approval must meet each required outcome of the BPEM, including providing buffers in accordance with Table 5.2 of the BPEM, when those buffers were not provided.

(a) a landfill buffer provides a protection zone for landfill gas migration, safety and amenity impacts;

(b) the relevant buffer set out in Tables 5.2 and 8.2 of the BPEM is 500m from building or structures;

(c) the landfill site is large enough to provide a 500m buffer;

(d) if the works approval is granted, a number of buildings and works will be within 500m of the landfill extension;

(e) the Tribunal was in error when it held that the 500m buffer was not mandatory, and that it could undertake its own assessment as to whether the buffer was adequate; and

(f) the Tribunal failed to 'give effect' to cl 15(3) of the WMP (SDM).

(a) cl 15(3) of the WMP (SDM) provides that an applicant for works approval must 'meet each required outcome of the BPEM';

(b) the buffers addressed by the BPEM are between landfill and sensitive receptors and users which include buildings and structures;

(c) the BPEM requires buffers to be provided in accordance with Table 2, and 'where these are unavailable, demonstrate that risks are mitigated to the same standard';

(e) the Tribunal undertook an assessment as to whether the buffer to be provided was adequate; and

(f) any error made by the Tribunal was not a vitiating error because the Tribunal separately concluded on the facts that it was unlikely that there would be offensive odours beyond the landfill boundary.

(a) the intent of section 5.1.5 was to impose a default buffer of 500m from a landfill to buildings and structures on the basis that all buildings and structures are sensitive to landfill gas;

(b) the BPEM allows for the reduction of buffers subject to a risk assessment;

(c) additional design and operational measures were proposed to ameliorate the risk associated with a reduction of the buffer distance;

(d) the Tribunal undertook risk management analysis of source control, migration pathway control and management of receptors to ensure that no safety or environmental impacts were caused by landfill gas;

(e) the Tribunal concluded that the proposal as amended would be consistent with the BPEM; and

(f) the Tribunal's conclusions were factual conclusions, and contain no error of law.

231 The Tribunal commenced by describing the buffer position in these terms:

We observe that when the [subject land] was first selected for a landfill, the open farmland spaces around no doubt meant that the 500m buffer was easily achieved. In assessing the current proposal now, we recognise that this land use pattern has changed and will change even further in the future. Nevertheless, these changes have not occurred in a vacuum where the presence of the existing and future development of the landfill has not been accounted for, as we have discussed elsewhere in our reasons.

In our view, it is therefore more relevant in this proceeding to consider the design element of the BPEM.

It was submitted by the applicants for review that the size of the site could contain 500m buffers within the site boundary, albeit at the expense of landfill capacity. On the other hand, [the proponent] submits that an internal 500m buffer is a preference, not a requirement. Subject to appropriate management of landfill gas risks, a reduction in the buffer distance, whether internal or not, can be considered. Whether the landfill gas migration risk has been appropriately managed is the focus of other BPEM landfill gas elements, which [the proponent] says manage the risk and allow reduced internal buffers and future land use and development as envisaged to the west of the site.[144]

232 After considering the effect of land use controls on the future development of the land surrounding the landfill site, the Tribunal said:

Overall, we are satisfied that the need for appropriate buffer distances to be maintained between the landfill and sensitive receptors, as required by the BPEM, have been provided by way of the planning scheme controls that apply to land surrounding the [landfill] and the proposed works.

We do not consider that the developers... can use this proceeding to agitate for a different outcome in land use or development terms to that adopted by Amendment C162 in the guise of seeking to ensure that a 500m buffer is provided from the edge of the nearest cell to the boundary so that the buffer recommended by the BPEM is wholly contained within land owned or controlled by [the proponent].

...

Therefore, we do not find that the interests of any of the applicants will be unreasonably and adversely affected by completion of the works in accordance with the works approval in terms of the location of the cells and the buffers between the landfill and surrounding land.[145]

233 I accept the submissions of the EPA and the proponent. Clause 15(3)(b) and (c) of the WMP (SDM) provide that an applicant for a works approval must meet the objectives and each required outcome of the BPEM. Clause 15(5) provides that where an applicant for a works approval proposes measures alternative to the suggested measures of the BPEM, the EPA shall not issue the works approval unless the applicant satisfies the EPA that the alternative measures meet the requirements of cl 15(3) and provide at least an equivalent environmental outcome to that suggested by the suggested measures.

234 The required outcomes of the BPEM to comply with cl 15(3) and (4) of the WMP (SDM) include:

• ensure that sufficient buffer is available for the life of the landfill and for a minimum of 30 years following closure

• provide buffers in accordance with Table 5.2 and 8.2, where these are unavailable, demonstrate that risks are mitigated to the same standard.[146]

235 The Tribunal held that while an internal 500m buffer could be provided, it would be at the expense of landfill capacity.[147]

236 Following a detailed review of landfill gas, odour and planning controls, the Tribunal was satisfied that the need for appropriate buffer distances to be maintained between the landfill and sensitive receptors as required by the BPEM was met by the planning controls that apply to land surrounding the landfill site and proposed works.[148]

237 In reaching this conclusion the Tribunal noted that it was obliged to take into account any relevant planning scheme under s 37A of the EP Act.[149]

238 The reasons of the Tribunal do not show any error of law for these reasons:

(a) the Tribunal clearly considered that there was insufficient buffer available if the preferred layout of the landfill site was to proceed;

(b) there is no dispute that if the preferred layout of the landfill site was adopted a 500m buffer from buildings and structures could not be achieved;

(c) the word 'unavailable' is an ordinary English word, and its meaning and application are matters of fact. It should be read broadly and flexibly. There is no reason to read the word in a restricted way given the discretion conferred on the Tribunal if risks are mitigated to the same standard;

(d) the Tribunal had a discretion to determine whether risks had been mitigated to the same standard under section 5.1.10 of the BPEM;

(e) the Tribunal was empowered to apply a lesser buffer distance subject to a risk assessment that considered design and operational measures;

(f) the Tribunal considered that the planning scheme controls which regulated and restricted land use in the area surrounding the landfill site provided an adequate buffer to protect sensitive land uses from adverse odour impacts;[150] and

(g) the Tribunal concluded that the proposal as amended was consistent with the BPEM.

240 The developers have failed to show that the Tribunal erred in law on any of the questions or grounds stated in the amended notice of appeal.

241 Leave to appeal will be granted on grounds 1 and 4, but otherwise refused. The appeal on grounds 1 and 4 will be dismissed.

[1] Melton City Council v Landfill Operations Pty Ltd [2019] VCAT 882 (Gibson DP, Potts SM and Sharpley M) ('Tribunal reasons').

[2] Melton City Council ('Melton'), Brimbank City Council ('Brimbank'), the developers and Stop the Tip Inc ('Stop the Tip'), an incorporated community group.

[3] Thirteenth Beach Coast Watch Inc v Environment Protection Authority & Anor [2009] VSC 53; (2009) 29 VR 1, 15 [41]-[42].

[4] See Rozen v Macedon Ranges Shire Council & Anor [2010] VSC 583 (Osborn J) ('Rozen'); Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27; (2015) 49 VR 535 (Warren CJ, Santamaria JA, Garde AJA) ('1045 Burke Road'); Hoskin v Greater Bendigo City Council [2015] VSCA 350; (2015) 48 VR 715 (Warren CJ, Osborn and Santamaria JJA); Abercrombie v Salter Architects & Anor (2018) 55 VR 395 (Ferguson CJ, Tate and Osborn JJA); Moreland City Council v Glenroy RSL [2018] VSC 126 (Ginnane J).

[7] Tribunal reasons [675]-[677] (citations omitted).

[8] Collector of Customs v AGFA-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); Minister for Immigration and Citizenship v Anochie [2012] FCA 1440, [25] (Perram J).

[9] (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).

[10] [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

[11] [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ) (citations omitted).

[12] (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (citations omitted).

[13] [1963] 1 WLR 929, 933-4 (emphasis added). See also Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528, 531 (Murphy J); Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786, [43] (Cavanough J).

[14] [2014] NSWCA 149; (2014) 86 NSWLR 499, 508-9 [44]-[45] (Leeming JA) (citations omitted).

[16] Osland v Secretary to the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320, [21] (French CJ, Gummow and Bell JJ).

[17] [2016] VSCA 109, [43]-[44].

[18] [2011] VSC 37, [3]-[4].

[20] Kennedy v Shire of Campaspe [2015] VSCA 47, [4]-[14] (Whelan and Ferguson JJA); Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147, [95] (Maxwell ACJ, Whelan and Kyrou JJA); United Commercial Projects Pty Ltd v PHHH Investments No 2 Pty Ltd [2019] VSCA 192, [35] (Whelan and Kaye JJA); Ganesh v National Australia Bank Ltd [2020] VSCA 39, [46] (McLeish JA); Nom De Plume v Ascot Vale Self Storage (No 2) [2020] VSCA 70, [90] (McLeish, Niall and Hargrave JJA).

[21] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, 174-5 [26], [29], [30], [34]; Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, [25] (Gummow J); NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470, 482-3 [37] (Gummow J); 526 [171] (Callinan and Heydon JJ); Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154, [109] (Emerton J); Maioha v Minister for Immigration and Border Protection [2018] FCA 1016, [24]-[25] (Perry J); Residential Aged Care Services v Stonnington City Council [2018] VSC 652, [65(c)] ('Residential Aged Care').

[22] This was a document given to the Scrutiny of Acts and Regulations Committee of the Parliament when it considered the SEPP (AQM) and the SEPP (AAQ).

[23] EPA, Variations to State environment protection policy (Air Quality Management) and State environment protection policy (Ambient Air Quality) - Policy Impact Assessment (826, 15 January 2002) v.

[34] [2014] NZSC 38; [2014] 1 NZLR 593, [77], [79]-[80]. See also Hawke's Bay and Eastern Fish and Game Councils v Hawke's Bay Regional Council [2014] NZHC 3191; [2015] 2 NZLR 688; Gock v Auckland Council [2019] NZHC 276.

[35] Tribunal reasons [189]-[204] (footnotes omitted) (emphasis in original).

[36] Ibid [208]-[209], [211], [217].

[40] See for example Barac v Strathbogie SC [2011] VCAT 1146, [115] (Komesaroff SM, Potts M); followed in Ophir Poultry Pty Ltd v Central Goldfields Shire Council [2013] VCAT 428, [54] (Cindy Wilson M, Catherine Wilson M).

[41] [2008] VCAT 2342, [117]-[118], [120]-[123] (Byard SM, Potts M) (footnote omitted).

[43] Yarra Ranges SC v Australian Native Landscapes Pty Ltd [2009] VCAT 1025, [16] (Byard SM, Potts M) (footnote omitted).

[57] [1971] HCA 12; (1971) 127 CLR 106, 134.

[58] [1994] HCA 61; (1994) 182 CLR 51, 88 (Brennan J).

[59] [1998] 2 VR 406, 413-4.

[60] [2019] VSCA 316, [155] (Tate, Emerton and Osborn JJA).

[77] Ibid [206]-[207], [210]-[211], [213]-[216] (footnotes omitted).

[81] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (McInerney J); Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, 67-8 (Fullagar J); Versus (Aus) Pty Ltd v A.N.H. Nominees Pty Ltd [2015] VSC 515, [10] (Croft J); Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 136 (Kirby J); Vegas Nominees Pty Ltd v Werribee Sports and Community Club Inc (Supreme Court of Victoria, Ashley J, 21 December 1994), 13; Secretary to the Department of Justice v YEE [2012] VSC 447, [96] (Kyrou J); Residential Aged Care (n 21) [66].

[82] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ) ('Pozzolanic Enterprises'), quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ); Secretary to the Department of Justice and Regulation v OUX (a pseudonym) & Anor [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) ('OUX'); Ferris v State of Victoria [2018] VSCA 240, [7] (Tate AP, Niall and Hargrave JJA) ('F_erris_').

[85] [2008] VSCA 45; (2008) 19 VR 422, 439-41 [59]-[65] (Warren CJ, Maxwell P, Osborn JA)

[86] Macquarie Online Dictionary (online at 1 June 2020) 'amenity' (def 1).

[87] [2016] VSCA 129; (2016) 218 LGERA 1, [54] (Warren CJ, Osborn and Beach JJA) (footnote omitted); S v Crimes Compensation Tribunal [1998] 1 VR 83, 88 (Phillips JA), referring to Brutus v Cozens [1972] UKHL 6; [1973] AC 854, 861 (Lord Reid); Hope v Bathurst City Council [1980] HCA 16; [1980] 144 CLR 1, 7 (Gibbs, Stephen, Mason, Murphy and Aickin JJ); NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; [1955] 94 CLR 509, 512 (Kitto J); Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 290-4 (Tadgell J); Pozzolanic Enterprises (n 82) 287; Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 450-1 (Gleeson CJ, Gummow and Callinan JJ), 477-8 (Hayne J), Secretary to the Department of Economic Development, Jobs, Transport and Resources v Manor Lakes (Werribee) Pty Ltd (2017) 224 LGERA 195, [69]-[72] (Warren CJ, Osborn and Ferguson JJA); Psychology Board of Australia v Mair [2010] VSC 628, [8] (Osborn J).

[91] Macquarie Online Dictionary (online at 1 June 2020) 'suitable'.

[92] OUX (n 82) [36]; Ferris (n 82) [7].

[110] Tribunal reasons [297], [309]-[319].

[113] Ibid [143], quoting BPEM section 1.1.

[122] Ibid [187], [192], [195], [249], [271], [306].

[123] Ibid [277]-[280] (emphasis added).

[133] (1893) 6 R 67 ('Browne v Dunn').

[136] [2014] FCAFC 93, [158] (Flick and Perry JJ, Logan J agreeing at [48]).

[138] [2018] FCA 1892.

[140] Browne v Dunn (n 133) ; Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 44 ALR 607, 624 (Hunt J); Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 225 (Glass JA); 236 (Mahoney JA); Toben v Nationwide News Pty Ltd (2016) NSWCA 296, [58] (Ward JA); Food and Beverage Australia Ltd v Andrews [2017] VSCA 258, [171]-[173] (Redlich, Santamaria and McLeish JJA); Veall v Veall [2015] VSCA 60; [2015] 46 VR 123, 192-3 [223]-[225] (Santamaria, Beach and Kyrou JJA).

[141] [2007] VSC 106, [50]-[51].

[142] Minister for Immigration and Border Protection v SZTMA [2019] HCA 3; (2019) 264 CLR 421, [45]-[46] (Bell, Gageler and Keane JJ).

[143] Ibid 445-6 [49]-[50]; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ); Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, [69]-[79] (Ipp JA, Mason P agreeing at [2]); Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527, [43] (Bathurst CJ, Beazley P, Tobias AJA).

[144] Tribunal reasons [364]-[366].

[146] BPEM section 5.1.10 (emphasis added).