All other Respondents - 20-34 Mahoneys Road, Thomastown

Reading v Whittlesea CC [2006] VCAT 2144

Orders Involving Land at 27 Pelmet Crescent, Thomastown

For so long as the Responsible Authority (in relation to the period after these final orders) requires access to be provided over the land at 27 Pelmet Crescent, Thomastown to facilitate the clean up of the materials unlawfully brought on to the adjacent land at 20-34 Mahoneys, Road Thomastown as required by these final orders, the 4th Respondent Ms Remeeus (as the registered owner of the 27 Pelmet Crescent property) must provide all necessary access and cooperation to assist the 1st and the 3rd Respondents comply with and carry out the relevant clean up orders affecting this adjacent land.

Orders Involving Land at 20-34 Mahoneys Road, Thomastown

1st Respondent Jeffrey Graham Reading & 3rd Respondent SPI Powernet Pty Ltd

A. The following orders are made on the basis that they bind the 1st Respondent Jeffrey Reading and the 3rd Respondent SPI Powernet Pty Ltd on a joint and severable basis.

B. For the purposes of the orders set out immediately below, the word "Respondent" means either of the 1st or the 3rd Respondents, and the word "Respondents" means both of the 1st and the 3rd Respondents. Also for the purposes of the orders set out below, the words "Relevant Waste" means the waste brought on to the land at 20-34 Mahoneys Road Thomastown during the period of occupation by the 1st Respondent Jeffery Reading (trading as "Development contracting"), being the period from 14 September 2002, until the date on which SPI Powernet Pty Ltd regained legal and actual possession of the subject land (being in or about April 2006).

In relation to the land at 20-34 Mahoneys Road in Thomastown ("subject land"), the Respondents must (unless otherwise permitted by any subsequent planning approval granted by the Responsible Authority) comply with the following requirements:

(a)

subject to the ability to carry out any sorting and processing of waste permitted by any approved Remediation Action Plan pursuant to Orders 4 and 5 below, the Respondents must not use the subject land or the adjoining land at 27 Pelmet Crescent ("access land") as a materials recycling facility;

(b)

the Respondents must ensure that no material waste is brought on to the subject land or the access land, and that no deliveries of material shall be accepted on either piece of land either temporarily or otherwise by any person;

(c)

neither the subject land nor the access land may be used or developed for refuse disposal or a landfill by the Respondents.

If this has not already occurred, the Respondents must as soon as practicable appoint an environmental auditor who is accredited under the Environment Protection Act 1970.

The Respondents must:

•

within 60 days of the date of these orders; and

•

to the satisfaction of the Responsible Authority and the Victorian Environment Protection Authority ("EPA")

move to a higher section of the subject land those items of Relevant Waste on the subject land which are either located within the defined banks of Edgar's Creek or located within 10 metres of the defined banks of Edgar's Creek. Alternatively, and subject to the prior approval of the Responsible Authority and the EPA, the Respondents may at their discretion suitably dispose of some or all of this waste off-site rather than moving it to higher ground on the subject land.

By no later than 5 January 2007 (or any extended period which both the EPA and the Responsible Authority approve in writing), the Respondents must provide to the EPA and to the Responsible Authority a Remediation Action Plan ("RAP") prepared by the appointed environmental auditor, which is to the satisfaction of both the Responsible Authority and the EPA. The RAP must as a minimum deal with the following matters:

(a)

the classification of the Relevant Waste on the subject land and the proposed methods of sorting and processing the Relevant Waste prior to its removal from the subject land;

(b)

the removal of all of the Relevant Waste from the subject land (once any applicable sorting and processing has been completed), including the proposed method/destination of disposal of the Relevant Waste;

(c)

the proposed approach to rehabilitating the subject land after the Relevant Waste has been removed, including weed management, re-vegetation and any necessary measures to address erosion or other like issues specific to the banks of Edgar's Creek.

5. By no later than 6 March 2008, the Respondents must ensure that all requirements of the RAP have been actioned and complied with and that the appointed environmental consultant has provided written verification of same, to the satisfaction of the EPA and the Responsible Authority.

6. An Administrative Mention will be held on Friday 10 November 2006, on which date any party claiming costs in relation to the 20-34 Mahoneys Road Thomastown land must provide the Tribunal with a written summary of the quantum of costs being claimed, who these costs are being claimed against, a reasonable level of detail regarding the nature of the work involved, and the reasons why that party believes it would be fair and reasonable for a costs order to be made in its favour pursuant to Section 109 of the VCAT Act. Assuming at least one party claims their costs, the Tribunal will in its discretion then either:

•

issue further directions giving any person against whom costs a claimed the opportunity to make written submissions in response, with the Tribunal then making final costs orders "on the papers"; or

•

(if the Tribunal considers a further hearing to be appropriate) then advise the relevant parties of the date for this final hearing, with the Tribunal's final costs orders to take into account the submissions made at this final hearing.

A. The 2nd Respondent must not have any involvement in the use of the subject land or the land at 27 Pelmet Crescent, Thomastown ("access land") as a materials recycling facility, for refuse disposal or as a landfill.

B. To the extent (if at all) that the 2nd Respondent has any on-going involvement in the day-to-day activities on the subject land and/or the access land, he must ensure that no material waste is brought on to either land, and that no deliveries of material are accepted on either land either temporarily or otherwise by any person.

Mr Barnaby McIlrath of Maddocks Lawyers appeared on both hearing dates.

On the first hearing date, SPI's in-house Counsel Ms E Mildwater initially attended and then excused herself.

At the 15 August 2006 hearing Mr Dreyfus QC attended, instructed by Mallesons Stephen Jaques.

Mr Tom Harper appeared in person at the first hearing.

Ms Rae Remeeus (assisted by her husband Brian) appeared at the first hearing

Whilst not a party, the EPA was present at both hearings, represented by its in-house lawyer Ms Joanne Cary.

1 The first part of this decision explains the context of this Application for Enforcement Order and discusses the final hearing on 15 August 2006. Suffice to say that this has been a complicated application involving the unlawful dumping of waste, and that these final orders are the culmination of nine months of intensive case management of this matter by the Tribunal.

2 The second part of this decision features the Tribunal's general comments on:

•

the role of planning enforcement orders compared to clean up notices under the Environment Protection Act 1970; and

•

the role of the different parties to this matter.

3 The third part of this decision explains why I have required that certain waste in or near the banks of Edgar's Creek must be cleaned up within 60 days.

4 The fourth section of the decision explains how I have structured my key final orders against the former occupier Mr Reading and the owner SPI Powernet Pty Ltd, requiring the removal within 60 days of certain waste within or near the banks of Edgar's Creek, the preparation of a Remediation Action Plan, and the removal of the unlawful waste on the site.

5 My decision finishes with some brief comments on the question of costs.

6 For convenience, I will repeat below some basic background information regarding the history and nature of this matter - see my initial decision of 17 March 2006 for the full details.

7 This matter involves an Application for Enforcement Order by Whittlesea City Council. The subject land involves two separate lots, being:

•

the main lot at 20-34 Mahoneys Road, Thomastown, which is of a substantial size and is owned by the 3rd Respondent SPI Powernet Pty Ltd ("SPI"), but which was occupied from 2002 to 2006 by the 1st Respondent, Mr Jeffrey Reading, pursuant to a lease dated 12 December 2002 with a 14 September 2002 commencing date ("Lease"). The Tribunal understands that SPI regained possession of the main lot about April 2006; and

•

a relatively small lot owned by the 4th Respondent Ms Remeeus at 27 Pelmet Crescent, Thomastown, which was over the relevant period apparently subject to some form of informal lease for access purposes to the 1st Respondent. It was common ground at the hearings that, other than one non-complying shed (which has, since the first hearing, been removed), this 27 Pelmet Street lot has not been used for materials recycling or refuse disposal/landfill activities. Rather, this small lot has simply provided an accessway from the local road network to the main lot.

8 For convenience, I shall refer to the main lot at 20-34 Mahoneys Road, Thomastown as the "subject land", whereas I shall refer to the 27 Pelmet Crescent lot as the "access land".

9 Apart from practical access issues, the common link between the subject land and the access lot is that planning permit No. 707986 issued by the Tribunal on 27 August 2004 applies to both lots and allows the use and development of "materials recycling". I note that in reality the Tribunal appeal which led to the 27 August 2004 decision involved a request for retrospective approval of the materials recycling activities already being carried out by the 1st Respondent.

10 The Lease, which commenced on 14 September 2002, reveals an annual rent of $15,000 and describes the permitted use as "Storage of bricks, topsoil, wood and other building materials and cleaning of bricks (This use is not permitted on the electricity easements on the land)."

11 Council has taken out an Application for Enforcement Order against:

•

Mr Reading and SPI in their capacity as the occupier and owner respectively of the subject land in the relevant period. At the time of the first hearing Council wished to defer the making of any orders against the 3rd Respondent, but at the 15 August 2006 hearing Council urged the Tribunal to include SPI in any orders; and

•

the 2nd Respondent, Mr Harper, on the strength of Council's belief that the 2nd Respondent was effectively in partnership with Mr Reading in terms of the running of the business on the subject land, and hence Council believes the 1st and 2nd Respondents should be treated in the same manner; and

•

the 4th Respondent, Ms Remeeus, in her capacity as owner of the access land.

12 In terms of the other background to this matter, otherwise see my interim decision dated 17 March 2006. This interim decision in summary established a process whereby Mr Reading was required to obtain a preliminary environmental audit of the subject land, with a view to the matter then coming back before me for a final hearing to hear submissions on what my final orders should be. I also made various other interim orders in relation to the other Respondents.

13 Over the period between the issuing of my interim orders and the 15 August 2006 hearing, I made a series of interim orders and directions, reflecting procedural issues that arose along the way. By the end of the period by which Mr Reading should have arranged and circulated the environmental audit, in fact very little progress had been made in this regard. The matter was then set down for a 15 August 2006 hearing, with a view to deciding the best way to realistically progress the matter, taking into account that by this time it was SPI Powernet Pty Ltd not Mr Reading that had possession of the subject land.

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).

PRELIMINARY COMMENTS ON ENFORCEMENT ORDERS COMPARED TO STATUTORY CLEAN UP NOTICES

19 Part 6 Division 1 of the Planning and Environment Act 1987 deals with planning enforcement orders. Section 119 of the Act deals in a reasonably prescriptive manner with the matters enforcement orders can provide for. The focus of Section 119 is the use and development of the land in question - for example, Section 119(b)(i) provides for orders directing a person to stop certain use or development. Section 119(b)(iii) allows for orders that a building must be maintained in accordance with the order, and 119(b)(iv) provides for orders to restore land to as near as practicable to the situation before the breach occurred. Section 119(b)(iv)(B) continues the same theme by providing a catch-all power for the Tribunal to make orders to "...otherwise ensure compliance with this Act, or the planning scheme, permit condition or agreement under Section 173".

20 It is also significant that planning enforcement orders run with the land, in the sense that Section 124 of the Act provides that "Any enforcement order or interim enforcement order served on an owner or occupier of land is binding on every subsequent owner or occupier to the same extent as if the order had been served on that subsequent owner or occupier".

21 This emphasis in enforcement orders on "the land" and on "use/development" in turn reflects the objectives of the planning system in Victoria, found at Section 4(1) of the Planning and Environment Act 1987. For example, the first objective (a) includes all three aspects - "to provide for the fair, orderly, economic and sustainable use, and development of land" (with my emphasis).

22 By contrast, Section 1A (1) of the Environment Protection Act 1970 states that:

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.

23 Similarly, Section 1A(3) provides that:

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

24 Section 1K which deals with "Principle of enforcement" states as follows.

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.

25 In relation to the power of the Victorian Environment Protection Authority to serve a statutory Clean Up Notice, the relevant provisions are Section 62A of the Act. This section empowers the EPA to serve such a statutory Clean Up Notice on an occupier of premises from which pollution has occurred, or the person who permitted the pollution, or any person who appears to have abandoned or dumped waste, or someone handling industrial waste in a manner likely to cause an environmental hazard. The statutory Clean Up Notice can direct any of these categories of person to "take the clean up measures as specified in the notice". Other than the focus on "clean up measures", Section 62A provides very little restriction on the contexts of any statutory Clean Up Notice.

26 Section 62A(1b) is significant in providing that the clean up measures directed by the EPA must be completed despite anything to the contrary in the Planning and Environment Act 1987 or the framework under it.

27 Section 62A does not include any equivalent "runs with the land" provision like Section 124 of the Planning and Environment Act 1987.

28 For our purposes here, I draw the following conclusions from this review of the two Acts:

•

the key focus of a statutory Clean Up Notice is simply to require the clean up of the relevant environmental damage, whereas the key focus of planning enforcement orders is more "who has done what, on which land" so as to achieve compliance with the requirements of the planning framework;

•

despite the otherwise wide-ranging nature of a statutory Clean Up Notice, it potentially has a more limited scope of operation, as a change of ownership of a contaminated site may require a fresh notice to be served on the new owner. By contrast, enforcement orders run with the land under Section 124;

•

given this different focus of notices compared to orders and the "run with the land" issue, I consider there are potentially situations where it is appropriate that both enforcement orders and a statutory Clean Up Notice be served on an owner and/or occupier of land, to ensure an effective regulatory response to the environmental damage (particularly in more complicated circumstances such as in this appeal);

•

where there is the dual situation of orders and a notice, common sense indicates that as far as practicable the orders and the notice should be compatible with each other;

•

if complying with a statutory Clean Up Notice would in fact lead to a breach of an enforcement order, Section 62A(1B) of the Environment Protection Act 1970 gives priority to the notice. The enforcement provisions in the Planning and Environment Act 1987 provide no guidance as to the outcome if the situation is reversed.

PRELIMINARY COMMENTS ON THE PARTIES/STAKEHOLDERS

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:

•

agreement on and coordination of strategies in pursuing the matter and ensuring the actual clean up of the site is achieved in the best way; and

•

making best use of limited public resources and also avoiding one authority "stepping on the toes" of the other authority.

36 In contrast to the preferred position which I have outlined above, the evidence before me points to a very unfortunate lack of coordination and "common approach" between Whittlesea City Council and the EPA over the last nine months. We had the strange situation of the EPA (with several years of previous involvement in the site) not being a formal party to this matter, and having little to show for those years of prior involvement. We had uncertainty regarding to what extent Council and the EPA were consulting with each other since March this year, and (in the final result) their differing views on the appropriate timeframe for the clean up of the site. Finally, we had Council's spirited letter of 28 September 2006 to the Tribunal, complaining that:

•

Council had no opportunity to be involved in the final discussions during the lead up to the statutory Clean Up Notice being served on SPI on 8 September 2006; and

•

despite the position Council claims was agreed to between Council and EPA before Council issued its Application for Enforcement Order, Council views the EPA as inappropriately seeking (ie via its last minute serving of the statutory Clean Up Notice on SPI) to "wrest regulatory control from a Responsible Authority".

37 Not having heard from the EPA on this particular issue, I am not in a position to make any specific findings either way on what (if any) protocols were put in place between the EPA and Council prior to the Application for Enforcement Order being initiated by Council. However the fact that these allegations have even been raised by Council undermines public confidence that this type of major environmental breach will receive the regulatory response that it deserves.

38 All of this has left the Tribunal in an awkward position in relation to the following matters.

39 The Tribunal faced a disjointed/compromised situation regarding the extent to which the EPA and Council were able to inform and provide guidance to the Tribunal in resolving a complicated enforcement situation.

40 This contributed to the Tribunal itself (for lack of a better option) needing to make interim orders and coordinate the process of the preparation of a preliminary environmental audit of the site, so as to enable the Tribunal to be better informed in then making appropriate final orders. This process was complicated and time consuming and is role more appropriate for the stakeholders to coordinate and arrange.

41 At the final hearing of this matter on 15 August 2006, the EPA belatedly advised me that it had served a draft statutory Clean Up Notice on SPI, with a view to finalising that Notice in the following weeks. If the EPA has been involved in the site since 2003, it is not obvious to me why it chose to wait until August 2006 to take this step against SPI. My final orders have had to accommodate this late development.

42 Although the Tribunal has still been able to make appropriate final orders, I would have benefited from a more coordinated and proactive approach to these issues from Council and the EPA.

43 I see no reason to vary my previous comments set out in my interim decision of 17 March 2006 regarding the previous and on-going role of Mr Harper (who helped run the business on the subject land) and Ms Remeeus (who owns the adjoining access land). In particular, in relation to the on-going period where clean up works will be taking place on the subject land, the Tribunal considers it appropriate that:

•

there being on-going orders to avoid any improper actions by Mr Harper (to the extent he still has any practical involvement) in relation to the clean up of the site; and

•

Ms Remeeus be required to provide access to the subject land over the period of this clean up. In this regard, the Tribunal remains of the view that there are no other viable access routes to the subject land.

44 The Tribunal finds very disturbing the huge extent of the waste that Mr Reading allowed to be brought on the subject land, in blatant disregard of Mr Reading's obligations under his Lease with SPI, the requirements of his planning permit and his legal obligations under the Environment Protection Act 1970. The extent of the flouting of these various controls is highlighted by the fact that the initial estimates of the likely clean up cost range from about $750,000 to $1.25 million.

45 I look very seriously on the fact that Mr Reading provided the Tribunal with an unconvincing reason for his non-attendance at the first hearing day for this matter on 1 March 2006, and then failed to attend the final hearing on 15 August 2006 without any apology or warning to the Tribunal. In addition, Mr Reading made barely any progress with complying with the Tribunal's interim orders requiring him to procure an environmental audit of the site and then circulate same by the relevant deadline, despite the Tribunal allowing an extension of that deadline. This situation is highly disrespectful to the Tribunal and quite unacceptable.

46 I find that despite despite my comments elsewhere relating to the role and conduct of SPI, Council and the EPA, Mr Reading has at all times been the key culpable figure in this matter.

PROPOSED RELOCATION OF WASTE IN OR NEAR BANKS OF EDGAR'S CREEK IN SUBJECT LAND

47 A key concern of Council at the 15 August 2006 hearing and in their letter of 28 September 2006 was SPI's and the EPA's alleged inadequate response to the need to re-locate that part of the waste on the subject land located within or near the banks of the Edgar's Creek. Part of the land abutting Edgar's Creek is subject to a Land Subject to Inundation Overlay.

48 At the bottom of page 4 and the top of page 5 of the 28 September 2006 letter, Maddocks argue that "The response from the EPA would allow material to remain in the floodplain area subject to the Land Subject to Inundation Overlay until 2008, which pays insufficient regard to the potential impacts on the waters of Victoria, in circumstances where it could easily be removed earlier than such a date".

49 The Tribunal endorses these concerns and agrees with Council that it is a prudent and appropriate approach to require any waste in or near the banks of the Edgar's Creek to be relocated within a relatively short timeframe. I accept that it would be reckless for any waste on the subject land in or near the banks of Edgar's Creek to remain there until March 2008.

50 My conclusion here is reinforced by my approach of wording this order so that the basic requirement is to relocate any relevant waste to higher ground on the subject land within 60 days of the date of these orders. Although I have allowed some flexibility for this waste to be completely removed off-site within the 60 days, this is not a mandatory requirement. I note here that it may well be the case that during most of not all of this 60 day period, preparation could still be underway of the necessary Remediation Action Plan. It is also relevant that Mr Reading and SPI have the benefit that I have made the overall clean up deadline in my orders 6 March 2008 (which is consistent with the Clean Up Notice served on SPI), rather than the earlier deadline of 15 August 2007 proposed by Council.

SOME EXPLANATORY COMMENTS REGARDING HOW I HAVE DRAFTED MY FINAL ORDERS AFFECTING MR READING AND SPI

51 In relation to my final orders for the subject land affecting Mr Reading and SPI, there were three pertinent issues:

•

should I make any enforcement orders at all against SPI;

•

if so, how should these orders be reconciled with the culpable role of Mr Reading; and

•

the importance of ensuring, as far as practicable, my orders are compatible with the Clean Up Notice dated 8 September 2006 served on SPI.

Should any enforcement orders be made against SPI

52 At the 15 August 2006 hearing, Mr Dreyfus took me through a lengthy written submission, the main thrust of which was that it would be inappropriate, premature[1], unfair and contrary to the relevant common law principles for me to make any enforcement orders against SPI, particularly where there is no imminent risk of danger[2]. Mr Dreyfus referred me to numerous cases to support this basic proposition, most of which involve a dispute whether or not a court should issue an injunction against a party to the dispute. In all a copy of 16 cases were provided in his materials for me, although a number of these cases go to the question of costs.

53 Mr Dreyfus particularly relied on the recent decision of Stonnington City Council v Blue Emporium Pty Ltd & B & I Holdings Pty Ltd 15 VPR 267. This decision involved the operation of the Salt Nightclub, with it being common ground that the nightclub (as the tenant of the building) was not providing the minimum car parking required by its planning permit. The Council initiated interim enforcement proceedings. The nightclub concurrently took out a Section 87 Application, seeking an amendment of the planning permit to reduce the car parking requirements. Whilst Justice Morris did make an interim order against the nightclub that the use must cease, he declined to make such an order against the owner of the subject building. At paragraph 16 His Honour made the following statement.

I am not proposing to make any order in relation to the owner. It seems to me that a basis for an enforcement order is a finding that the use complained of contravenes, has contravened or will contravene the planning permit: see section 119(a) of the Planning and Environment Act 1987. No such contravention has been shown in relation to the owner. Given that, it is inappropriate that any order be made against the owner.

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).

My impression of these provisions is that they are concerned with breaches of the EPA Act and authorise the Court to make orders against persons who are in breach of or who have breached the EPA Act. The court's jurisdiction is enlivened by a breach of the EPA Act and it is empowered to make orders "to restrain the breach" and "to remedy the breach". The provisions do not suggest to me that orders may be made against persons who have not breached and are not in breach of the EPA Act. This is particularly so as any person may bring proceedings under the Act. A more expansive interpretation might be justified were the provisions to be seen as part of the armoury of an enforcement body.

58 In terms of the Tribunal's overall finding here, the Tribunal favours the submissions of Council. I endorse Mr McIlrath's concerns that many of the cases relied upon by Mr Dreyfus can be distinguished in that they involve private commercial litigation rather than an application for an enforcement order by a Council pursuant to the broad objectives of the Planning and Environment Act 1987 and associated planning framework. In particular, I agree that consideration of what constitutes a fair outcome here needs to be guided by specific points in Victoria's modern planning framework such as:

•

seeking a "net community benefit"[4]; and

•

the objectives of planning in Victoria including not only "fairness" but also "...the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity"[5].

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:

•

I am satisfied that SPI already has "public relations issues" to deal with, whether or not I make any planning enforcement orders, given that SPI has had a statutory Clean Up Notice Served on it. Hence I am struggling to see how my orders particularly changes the status quo;

•

I am not fully satisfied with Mr Dreyfus' statement to me that SPI has at all times been voluntarily committed to clean up the subject land. I give weight here to Mr McIrath's submission that Council has experienced some problems with the level of cooperation offered by SPI. In addition, in relation to the Coffey "Preliminary Waste Classification" report and associated proposed "Clean Up Methodology" document, I queried Mr Dreyfus as to why this draft Methodology program did not specifically name SPI as the person preparing the Remediation Action Plan and then cleaning up the site. In other words, the more generic term of "responsible party" is used in the Methodology instead. Mr Dreyfus was not able to give me any convincing explanation for this omission.

How to reconcile enforcement orders made against SPI with the culpable role of Mr Reading

64 Having resolved to make certain enforcement orders against SPI for the reasons set out above, I have remained conscious of the culpable role of Mr Reading and the inappropriateness of Mr Reading simply being absolved of his responsibilities. In other words, whilst clearly there are major issues with Mr Reading actually complying with Tribunal orders and directions, this in itself does not justify my final orders simply transferring all liability to clean up the site from Mr Reading to SPI.

65 To address these concerns, in drafting my enforcement orders in relation to the clean up of the subject land, I have deliberately made these orders apply to both Mr Reading and SPI on a joint and severable basis.[6] This has the advantage that:

•

on the one hand, should SPI be successful in taking legal action against Mr Reading which results in Mr Reading driving the clean up process, my orders can accommodate this outcome; but

•

on the other hand, should the reality be that SPI cannot force the issue with Mr Reading and SPI alone has to shoulder the clean up process, my orders can accommodate this situation also.

The desirability of my orders being as far as practicable compatible with the EPA Clean Up Notice of 8 September 2006

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.

73 Council has from an early stage in this matter indicated it will be claiming its costs.

74 At the 15 August 2006 hearing, Mr Dreyfus for SPI indicated that SPI sought its costs from Council, in relation to those costs incurred by SPI to attend the hearing on 15 August (SPI's view being that Council unfairly required SPI to attend at that hearing).

75 I have made suitable orders at the beginning of this decision, allowing the parties a fortnight to review their position in relation to costs, and then write to the Tribunal on Friday 10 November 2006 to indicate if any party is still claiming costs (and if so, to provide relevant details regarding same). Assuming at least one party takes advantage of this Administrative Mention, then the Tribunal will either provide for a written "right of response" and in due course make a final decision "on the papers", or otherwise advise the relevant parties of a hearing date at which verbal submissions can be made in relation to these costs issues.

76 While the Tribunal has an open mind regarding whether any costs orders should be made or not, I have indicated elsewhere in this decision that:

•

it is clear to me that the key culpable figure in this matter remains Jeffrey Reading; and

•

I regard it as reasonable and appropriate that Council has taken the initiative in seeking enforcement orders with the aim that there is a realistic prospect that the subject land is cleaned up.

77 In these circumstances, it seems fair to say that (as least as a starting point) there is a real prima facie case (subject to the opportunity to hear from the relevant parties including Mr Reading) that the main focus of any potential costs orders which the Tribunal might contemplate should be Mr Reading. In these circumstances, any party claiming their costs from someone other than Mr Reading will need to have a good case why the focus for any potential costs order should be shifted away from Mr Reading.

[1] Mr Dreyfus relied here on the cases of Hooper v Rogers [1975] 1 Ch 43 and Fletcher v Bealey (1885) 28 Ch D 688

[2] Mr Dreyfus referred me to passages from Fletcher v Bealey (1885) 28 Ch D 688 and Redland Bricks Ltd v Morris [1970] AC 652

[3] Mr Dreyfus considered SPI's actions to re-take possession as consistent with the common law principle that a mandatory order should be made against a party with great caution if that party has not been dilatory or unwilling - see Redland Bricks Ltd v Morris [1970] AC 652.

[4] See Clause 11 in the Planning Scheme

[5] See Section 4(1) of the Planning and Environment Act 1987

[6] The Tribunal is empowered to make enforcement orders against more than one party under Section 114(3) of the Planning and Environment Act 1987