Reading v Whittlesea CC [2006] VCAT 2144

Reading v Whittlesea CC [2006] VCAT 2144 - VCAT 2006 case summary — Zoe

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14 Prior to the 15 August 2006 hearing, Council had circulated a letter dated 9 August 2006 enclosing the draft Final Orders which Council proposed be made by the Tribunal.

15 Also prior to that hearing, SPI had in fact prepared and circulated its own "Preliminary Waste Classification" report dated 14 July 2006, prepared by Coffey Consultants. This report indicates that there appears to be relatively modest levels of contamination in the waste on the subject land, subject to further testing. Coffey indicate that they expect roughly a third of the waste could potentially be sorted and then be recoverable. The most common type of waste involved is demolition materials. However asbestos fragments are scattered across the site and in a few locations there are larger volumes of asbestos-containing-materials. It is estimated by Coffey that there is 27,000 cubic metres of waste in question, but that the asbestos materials make up less than 1% of the overall waste. Whilst different site management options are discussed, Coffey estimate the cost of the complete off-site removal of this waste at $1.5 million. There are some helpful photos included in the report.

16 The Tribunal received various other correspondence before the 15 August hearing - see my Directions of 18 August 2006 which itemise same. These 18 August 2006 Directions also summarise how the 15 August 2006 hearing unfolded. What my 18 August 2006 Directions essentially allowed was a further opportunity for SPI and the Victorian Environmental Protection Authority ("EPA") to negotiate and then finalise what I was told was an impending EPA statutory Clean Up Notice to be served on SPI pursuant to the Environment Protection Act 1970. I required the EPA to circulate any final Clean Up Notice that came out of that process, and I also gave the other parties a final chance to then provide any final comments to the Tribunal regarding that notice. I indicated at this stage that the costs of the matter were reserved.

17 Since that time I have received under cover of an EPA letter dated 8 September 2006 a copy of the final version of the Clean Up Notice of the same date, served on SPI by the EPA in relation to the subject land. I then received a letter dated 25 September 2006 from Maddocks Stephen Jaques on behalf of SPI, relying on the issuing of the Clean Up Notice in reiterating SPI's submission that it is committed to clean up the site and that it would be premature and unnecessary for the Tribunal to make any enforcement orders against SPI.

18 Finally, I received a letter from Maddocks lawyers (on behalf of Council) dated 28 September 2006, setting out Council's views on the Clean Up Notice. In summary, Maddocks clarified that Council had not been involved in the final negotiations regarding the serving of the 8 September 2006 Clean Up Notice on SPI, and that Council remains of the view that its role should not be usurped by the EPA. Following this approach, it remains fair and appropriate that the Tribunal still make an enforcement order against SPI notwithstanding the recent serving of the Clean Up Notice on SPI. Council also raised some particular concerns about the Clean Up Notice not requiring prompt attention to that aspect of the relevant waste on the subject land which is located within or close to the banks of the Edgar's Creek. Council also expressed unhappiness in its letter that the Clean Up Notice allows a longer overall period for the relevant waste to be removed from the subject land (being until 6 March 2008, whereas Council's draft orders require the relevant waste be removed by 15 August 2007).

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29 In a situation such as this where there has been a clear and major case of an occupier causing environmental damage to the land in question, it seems central to public confidence in the environmental regulation process that the relevant statutory authorities are proactive and take appropriate steps (including sensible coordination) to tackle the problem. In turn, common sense suggests that those statutory authorities charged with this role can only do so effectively to the extent that they are properly resourced for it. If there is a lack of resources and/or lack of commitment to dealing with those offenders who breach planning controls and cause environmental damage, then public confidence is eroded and aspects of the planning system run the risk of being perceived by some as a "toothless tiger". It goes without saying that the regulatory regime under the Environment Protection Act 1970 is not immune from this dilemma either.

30 In my interim decision of 17 March 2006, I noted that the EPA by the time of the first hearing before me had already been involved back to 2003 in seeking to clean up the subject land. In particular, the EPA had on 4 July 2003 served a statutory Clean Up Notice on Mr Reading (the then tenant of the site), together with a statutory Clean Up Notice which was served on Mr Harper on 15 July 2005 (Mr Harper assisted Mr Reading in the running of the business on the site). Various other notices were served and other steps were taken by the EPA since 2003.

31 However, the serving of these various notices in reality has resulted in little (if any) real steps towards the clean up of the site. As I indicated during the hearings, it is an incongruous and disappointing situation where the evidence indicates that the EPA has been "spinning its wheels" despite investing a lot of time and energy into the subject land since 2003.

32 On 22 November 2005 Council lodged its Application for Enforcement Order, seeking orders from the Tribunal that the relevant "materials recycling" planning permit had been breached and that the subject land should be made compliant with that permit within a reasonable time frame (notably by removing the unlawful waste brought on the site).

33 Subject to the proviso mentioned below, Council deserves credit for the fact that it has been prepared to invest significant time and resources in taking out the Enforcement Application, with a view to achieving real progress in cleaning up the site. Council's statutory responsibilities include ensuring compliance with its planning scheme and it is in the public interest that Council be seen to be prepared to act decisively to address significant breaches of the scheme.

34 The proviso is this. There is an obvious overlap here between Council's duties in relation to compliance with the environmental aspects of the Whittlesea Planning Scheme, vis-a-viz the EPA's statutory role and duties in a situation such as this where the dumping of waste on the subject land has implications under the Environment Protection Act 1970. It is also self-evident that both Council and the EPA have finite resources in terms of their ability to pursue legal action in this type of situation.

35 The practical implication of these "overlap" and "finite resources" points is that, in my opinion, this is exactly the type of situation where major benefits flow from close and effective cooperation from an early stage between the relevant Council and the EPA. I would expect the benefits of such cooperation to include:

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54 In addition, Mr Dreyfus argued that SPI was the "innocent party" who had made major and prompt efforts to terminate the tenancy of Mr Reading once SPI became aware of the waste dumped on the site[3], and that SPI had been inappropriately "dragged to the hearing table" by Council. Mr Dreyfus repeatedly put to me that SPI (as a good corporate citizen) had at all times been committed to cleaning up the subject land, and this remained the case.

55 In these circumstances, Mr Dreyfus submitted that it would be an overkill for me to make any enforcement orders against SPI. In response to a question I put to him, Mr Dreyfus confirmed that SPI was committed to cleaning up the subject land whether or not any progress could be made in making Mr Reading complying with any Tribunal orders made against him. Mr Dreyfus submitted that SPI is concerned at the public relations implications of any enforcement orders being made against it, which reinforced his argument that it would be unfair to make such orders unless there were exceptional reasons to do so. He also highlighted that the Tribunal has an inherent discretion whether or not to make enforcement orders.

56 In response, Council submitted that it had experienced problems with SPI's level of cooperation in addressing the contamination of the subject land, and hence Council has real concerns about SPI's level of commitment to cleaning up the site in the absence of any enforcement orders from the Tribunal. It was argued that SPI was being "hypersensitive" to the prospect of enforcement orders being made against it. In relation to the case law relied upon by Mr Dreyfus, Mr McIlrath criticised this as either being historically outdated and/or involving private commercial disputes rather than this type of statutory enforcement action by a Council under the Planning and Environment Act 1987. Hence Mr McIlrath urged me to give no weight to the authorities relied upon by Mr Dreyfus.

57 In terms of his own references to relevant case law, Mr McIlrath relied on the following quote from paragraph 36 of the decision Wilkie v Blacktown City Council & Ors [2002] NSWCA 284 (with Mr McIlrath's emphasis).

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59 I see the quoted text at paragraph 36 of the Wilkie decision (notably the last sentence) as giving strong weight to Council's case. In relation to Justice Morris' comments at paragraph 16 of the Blue Emporium decision, I consider that the facts before His Honour can be distinguished from those before me in the following ways.

60 Firstly, Justice Morris was considering whether or not to apply an interim enforcement order against the owner, rather than an ordinary enforcement order. My understanding is that there is always a higher level of caution involved in the extent of any interim enforcement orders which the Tribunal makes;

61 Second, Blue Emporium was more complicated in that the nightclub was concurrently seeking an amendment to the planning permit to reduce the car parking requirements, which was a key factor in His Honour applying his "lower risk of injustice to a party" analysis of the situation.

62 Finally, I am not aware of any particular suggestion in the circumstances of the Blue Emporium case that the owner of the building was or should have been aware of the breach of the planning permit (ie the car parking shortfall). It would appear the owner essentially had no involvement in the day to day running of the nightclub and its compliance with its planning permit. By contrast, there are inherently higher risks associated with SPI allowing a tenant to run a materials recycling operation on the subject land. Given these higher risks, I consider that a prudent landlord in SPI's position should have been periodically inspecting the subject land to monitor Mr Reading's compliance with his lease obligations. Accordingly, my finding is that even if SPI was not aware of the dumping of waste on the subject land during 2003 or 2004 (which is not entirely clear), SPI should have been. In this regard, we know that when the Tribunal in its decision of 27 August 2004 approved the use of the site for materials recycling, this was a retrospective approval.

63 I otherwise make the following additional findings which count against SPI's "do not make any enforcement orders" position:

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66 The Maddocks letter of 28 September 2006 urged me to endorse the draft enforcement orders proposed by Council, regardless of any inconsistency with the Clean Up Notice of 8 September 2006 served on SPI. In particular, Council urged me to ensure that my orders require prompt action in relation to the waste in or near the banks of Edgar's Creek. Council also reiterated that it seeks an overall clean up deadline of 15 August 2007.

67 It is clear to me that ultimately my responsibility here is to make what I consider to be the most appropriate enforcement orders, having regard to the statutory planning framework, controls and policies. If my conclusion is that the most appropriate course is to issue enforcement orders which conflict with and/or are inconsistent with the provisions of any EPA clean up notice, this conflict/inconsistency would not change my conclusion.

68 Having said that, common sense points to it being desirable that Tribunal enforcement orders are as far as practicable be compatible with the requirements of EPA clean up notices, where the two overlap in relation to the same site. Having weighed up this particular issue in the overall context of what I consider to be a fair, reasonable and appropriate outcome in the circumstances here, my main findings are as follows.

69 For the reasons set out above, I consider it appropriate to make orders requiring the relocation of the waste in or near the banks of Edgar's Creek within 60 days of the date of these orders, despite the Clean Up Notice of 8 September 2006 being silent on this point. I agree with Council that this issue requires a prompt response.

70 I consider paragraphs 6, 8, 9 and 10 of that Notice to involve broader issues of the process for the carrying out of a statutory audit of the subject land, the points to be addressed by the statutory audit and the follow up process. I am satisfied that I can essentially put to one side these broader issues as being specific to the EPA and going beyond the "clean up of the waste on the site" scope of my role here.

71 It seems desirable to have consistency in the main steps and deadlines for the removal of the waste from the subject land, provided I am satisfied with these steps and deadlines. In this regard, having considered the issue carefully, I am satisfied with the relevant steps and deadlines in the 8 September 2006 Clean Up Notice (ie the preparation of a Remediation Action Plan by 5 January 2007 and the completion of the clean up of the waste by 6 March 2008). I am conscious of the likely major scale of the clean up works involved, and therefore favour SPI's submission that Council's preferred deadline of 15 August 2007 is tight. I also give weight to the fact that the extra seven months of time from 15 August 2007 to 6 March 2008 needs to be seen in the context of this matter already having a long history stretching back to at least 2003.

72 In all the circumstances, it is appropriate to require that the clean up of the banks of Edgars Creek, the preparation of the RAP and the final clean up all be carried out to the satisfaction of both the EPA and Council. This seems fair and appropriate in terms of both authorities having a substantial role in the situation, and there also being a superior level of public confidence that the process will receive the supervision that it clearly deserves.

At a glance

Court

Decision date

Source

Judgment (80 paragraphs)

Reading v Whittlesea CC [2006] VCAT 2144 (24 October 2006)

Parties

Legislation Cited (2)