Siciliano v Kingston CC [2018] VCAT 125

Siciliano v Kingston CC [2018] VCAT 125 | Case summary | Zoe

[42]

In its application to the Council, Cleanaway sought approval for the changes for two material reasons:
- Cleanaway is concerned that disturbing this material could have off-site odour impacts. The risk of odour impacts was said to arise from the fact that the fill may contain some organic wastes that has been subject to infiltrating moisture.
- A previous division of the Tribunal approved the present landscape concept plans in 2008[4] that are now endorsed under the Landfill Permit. Since then it is said that the Council has further developed the 'Chain of Parks' concept. Cleanaway says the amendments will be consistent with and provide greater support to the Chain of Parks concept by detailing a fully formed open space outcome that is significantly greater in concept and substance than the current endorsed plans.
As a consequence of the amended fill height, a revised Stormwater Management Plan (the SMP) has been included in the amendment application. The amended SMP put forward to the Council included diversions banks and a stormwater detention pond on land that is presently not encompassed by the Landfill Permit or the EPA Licence. This land is known as the former Pravnovszki Land or Lot 2. We adopt the latter reference, i.e. Lot 2, for convenience.
As a consequence of Lot 2 being included, with leave of the Tribunal, the Siciliano Party amended their grounds of objection to include a ground that the use and development of Lot 2 in the manner proposed is prohibited. We address this issue shortly. Here we record however that as a response to this ground, Cleanaway now relies on two options for the amendments being sought. Option 1 is in the form on which the Council made its original decision. This includes the stormwater and other works on Lot 2. The second, Option 2 plans, still seek amendments to the form and layout of stormwater management infrastructure but do not propose any works or development on Lot 2.
As a matter of record we note at this point that all the parties agreed that there would be no prejudice to their respective positions if we were to consider both options, although the Sicilianos recorded their resistance to this unusual approach. While noting the Sicilianos' position, we adopted this approach because they agreed it would not prejudice their case and in our view we could not make a decision about the grounds raised by the Sicilianos until the merits of each option were before us. All parties addressed us on the merits of each option and we are satisfied that there are no matters that influence our decision that have not been put to the parties for their respective responses.
The amending plans also include details of stormwater detention ponds and leachate ponds which are already located on the south side of the landfill. These features were either indicated schematically in the 2008 endorsed plans or, in the case of the leachate ponds shown, to be in a different location to that now built. This is a source of some contention raised by the Sicilianos that approval of these features is now being sought by stealth.
It is a matter of record that the EPA does not oppose the amendments to the pre-settlement contour levels or any other features included in the amended plans. This extends to either Option 1or 2. Although a party to the proceedings as a relevant referral authority, it did not participate actively in the hearing. The EPA advised that amendments to its Licence would need to occur if the permit amendments were approved. It also advised that the rehabilitation Pollution Abatement Notice (PAN) that currently applies to the landfill[5] would need to be revoked and a new PAN issued. The EPA did not foreshadow any procedural difficulties with the planning merits being determined before any consequential applications being made for the licence amendments. In fact the EPA indicated that all necessary steps to address amendments to its statutory authorisations could occur as necessary once this application was finalised.[6]
It is also a matter of record that Melbourne Water does not object to the amendments. We set out the stormwater management matters that relate to Melbourne Water's interests later in these reasons.

[51]

The review site has a complex history of planning and use.
The review site has been used for sand mining and land filling for over 25 years. Its history of use and planning has been at times complex, in part due to a series of permit amendment applications, enforcement proceedings and amendments to the Kingston planning scheme. We here provide a summary overview in order to set the context of our decision.
The first planning permit for the use of the land as a solid insert landfill was issued on 11 November 1991. Permit KP97/1009 was then issued by Council on 18 February 1999 at the direction of the Tribunal[9] for the use and development of a solid insert waste landfill. On 2 October 2003, a consent order was issued by the Tribunal directing the grant of a permit.[10] This permit allowed a variation to the existing fill levels of a completed section of the landfill along the Leslie Road boundary. The permit required that land within 200 metres of Lot 2 on Leslie Road (the Dennis Land) be contoured and grassed to the satisfaction of the Responsible Authority.
In 2008, the Tribunal dealt with two applications. One was by Mr Dennis to enforce the 2003 permit.[11] The other was an application by the landfill operator to amend the final pre-settlement fill levels in Area C of the review site i.e. the western area of the site. The Tribunal directed the grant of permit KP419/06 which was issued in 14 January 2009, i.e. the Landfill Permit. While the amendments were confined to one area of the landfill, the Landfill Permit and the plans which were endorsed under it, encompass all of the landfill. Condition 1 of the Landfill Permit provides that the permit would 'supersede all other permits'. The purpose and effect of this condition was to rescind all the previous permits and bring the control and management of the site under one permit.
Separate to the permit history, Planning Scheme Amendment C143 occurred on 15 October 2015. Prior to that amendment, the review site was subject to the Special Use Zone Schedule 2 (the SUZ2)[12]. Under the SUZ2, the landfill was a section two use requiring a planning permit. Planning permission was also required for the development and works associated with the landfill use.
Amendment C143 resulted in:
- The review site being included in the Green Wedge Zone A (the GWZA) and being subject to an Environmental Audit Overlay (an EAO) and schedule 4 of the Environmental Significance Overlay (the ESO4).
- Consequential changes to the Municipal Strategic Statement (the MSS) and the Local Planning Policy Framework (the LPPF) in line with the transition of non-urban land from the SUZ2 to GWZA. While many of the consequential changes did not affect policy direction, of particular relevance in this proceeding has been the amendments that address the winding back of sand extraction and landfill activities and the promotion of future long term land uses that would be consistent with the Kingston Green Wedge Plan prepared by Planisphere in 2012 and subsequently adopted by the Council; and
- The Kingston Green Wedge Plan being included as a reference document in the planning scheme.
A consequence of the amendment, particularly the change to the GWZA is that the landfill operation now proceeds on the basis of being a non-conforming use with the benefit of the Landfill Permit and the accrued rights thereunder. What follows from this situation is that amendments to the permit are subject to requirements as established under the PE Act and clause 63.05 of the Kingston Planning Scheme (the planning scheme).
There are further consequences of the change in the zone with respect to the grounds relied upon by the the Sicilianos and which option is to be supported. We set out our response to this ground and why we have amended the plans to reflect Option 2 later in these reasons.

[56]

In response to these requirements, we observe that:
- The works being sought here, as amendments, will be subject to a permit. As Council noted, there are no specific works requirements under the GWZA or overlays that apply to the land.
- There is no change to the use of the land being proposed. Further, for reasons we explain later, in adopting Option 2 amendments, there is no issue about the extent of the land over which the existing use extends.
- The effect on the amenity of the area is the principle issue raised by the Sicilianos and Mr Dennis and a matter that clause 63.05 of the scheme would direct us to consider in any event.
While Council has stated that there are no specific planning requirements that apply to the proposed works (i.e. the amended contours and landscape plans), we note here that the decision guidelines under the GWZA nevertheless require us to turn our minds to the following matters in addition to the State and local planning policy framework and any Regional Catchment Strategy and associated plan applying to the land):[13]
- The capability of the land to accommodate the proposed development, addressing site quality attributes including soil type, soil fertility, soil structure, soil permeability, aspect, contour and drainage patterns.
- How the use or development relates to agricultural land use, rural diversification and natural resource management.
- Whether the site is suitable for the use or development and whether the proposal will have an adverse impact on surrounding land uses.
- The need to protect the amenity of existing residents.
- The need to minimise adverse impacts on the character and appearance of the area or features of architectural, scientific or cultural heritage significance, or of natural scenic beauty or importance
While there are other relevant decision guidelines to consider including Rural issues, Environmental issues, Design and Siting issues, we consider that the above matters encapsulate the grounds for review and the matters in contest in this proceeding. Where appropriate, we have considered these other issues within the scope of assessment of the amendments.
None of these points about what the planning scheme requires are particularly controversial. Indeed the Sicilianos pointedly accept that the eventual development of the landfill into parkland reserve space is consistent with the planning policy context that applies to the site and the wider area. It is the final form of the capped landfill, in terms of its overall landform, the landscaping, and drainage that are the matters they take issue with.
Mr Dennis's grounds while wider, and for reasons we explain are often misconceived, nevertheless are couched in terms that do not dispute the eventual conversion of the land to a form suitable for parkland and recreational use. Those grounds that are relevant are largely directed to the impacts the final form of the land would have on the amenity and any future use of his property.

[58]

As we have said, Cleanaway seeks to revise the final landfill heights that were approved in 1998. The application has been based on the pre-settlement fill levels and it is these that we refer to throughout these reasons.
Cleanaway relies on two possible options, with Option 1 being its preferred option. The following changes to pre-settlement fill levels that are proposed however are common to both options:
- (a) A gradual rise in height from the northern and eastern boundaries to a new proposed high point of RL52 in Area B as compared to the currently approved RL50. Other cell areas would be raised from RL43 to RL47 in Area A and from RL39 to RL43 for Area G.
- (b) These increases in height correspond to 5 metres to 7 metres of additional fill, with maximum increase of 11 metres occurring on the southern slopes of the landform that are to the north of the leachate ponds.
- (c) Consequential variations to the contours in the eastern part of Area F and southern part of Area E but within no changes in the maximum height.
The pre-settlement contours for the remainder of Areas E and F, and all of Areas C and D would not change.
The overall outcome of these changes in height would result in:
- a three metre higher peak located further to the south-east side of the site with a higher more elongated and flatter ridge extending from the peak to the west;
- Consequential steeper slopes along the southern and southwest sides of the landform along Victory Road.
- The east-west ridge to the north of the high point would also be slightly flatter and approximately one metre higher with no changes to the slopes to the north that face onto Leslie Road.
Under Option 1, the plan of works (shown in Figure 2 below) includes:
- The south-west toe of Area A's batter extending into Lot 2.
- A swale along the toe of Area A passing through Lot 2 that discharges into a detention pond (Detention Pond 2)
- Detention Pond 2 located on Lot 2, which in turn discharges to a drain to be constructed along Victory Road.
Under Option 2 (shown in Figure 3 below) the plan of works confines all the earthworks, slopes, swales and detention ponds to the present extent of the landfill's licensed area.

[82]

While for reasons we come to we do not consider this application to be a 'classic repeat appeal', our decision nevertheless applies the broad principles in a manner that is consistent with these authorities given that the landfill has been the subject of previous Tribunal decisions. Thus we consider that the earlier decisions of the Tribunal are relevant but as was said in Zumpano, the weight to be given to those decisions is a matter for the decision maker. In our view the previous decisions are not of determinative weight. This is because we agree with the Council and Cleanaway that that there is no 'classic repeat appeal' consideration of substance in this case. Contrary to the ground relied upon by the Sicilianos that there has not been a sufficient justification to depart from previous Tribunal's findings, we accept the submissions put by the Council that:
- In the 1998 case, the Tribunal assessed the proposed contours for the whole of the site. That, however, was almost 20 years ago and the assessment was made in the context of the site as it then was and the planning scheme and environmental controls of the time. There have been substantial changes in the planning controls and policies since that time.
- At the time of the 1998 case, the Sunbelt Open Space Development Plan was conceptual in nature and indicated only a broad allocation of possible future recreation uses for the site and other parts of the future open space network. In this context, the Tribunal was of the view that the height and contours the final settled and rehabilitated surface should be such as to preserve the greatest range of possible future recreation uses for the land, but consistent with the objectives of providing adequate drainage and the prevention of infiltration, erosion, ponding and dishing of the surface.[26] Council has now further developed its open space strategy for the area and the site and the Tribunal is now in a position to assess a more detailed landscaping proposal in accordance with adjusted proposed contour levels for certain areas of the site.
- In the 2008 case, the Tribunal did not assess the contours for the site apart from Area C, Area D and a different part of Area F. The proponent of that application, amended its plans to maintain the approved 1999contour heights for the balance of the site. There is no proposal before us to change the contours of Area C or Area D or that part Area F that was amended in the 2008 application.[27]
Further to the above, we observe that while the 2008 Tribunal's commentary on the 2006 amendment expressed a view that retaining the 1999 approved contours over the remaining areas was an appropriate outcome,[28] it is also true that the Tribunal did not explore or make express findings about the levels over the remaining areas of the landfill that are before us in this proceeding.
Of equal relevance however is the fact, that this is an application to amend an existing permit. As we address shortly, such an application is lawful under the PE Act[29] and the scope of such amendments can be broad. Just as a permit holder may seek amendments to increase the height of a permitted building, so it is that Cleanaway is able to apply for variations to earlier approved heights of the landfill.
We conclude that it is appropriate to deal with application according to its merits and the basis of the legislation and sub-servient statutes that apply.

[88]

Here we have a permit holder who seeks to amend a permit. As the amendments involve changes to elevations of the final landform as well as landscaping and drainage, we recognise that the amendments are substantive. They have been key matters since the first permit in 1998,[37] the 2003 application and the 2008 application. All have been the subject of Tribunal proceedings.
Also, in reflecting on the guidance from Bestaway, while being substantial changes we are satisfied that proper notice of the amended application has been given to potentially affected persons and so the opportunity to contest the amendments has been provided.
The first permit was granted at the direction of the Tribunal after consideration of what it considered to be the determinative issue of height.[38] The second was the subject of an order by consent that directed amendments to address contours and landscaping along Leslie Road. The third was granted at the direction of the Tribunal after considering the consequences of higher contour levels in one section of the landfill (Area C).[39]
Drawing together what has been said in PT Capital, Batman and Bestaway, we take the view that while Cleanaway is at liberty to seek amendments to the levels and the landscape and drainage plans, there must be sound planning reasons for us to approve of such changes. The reasons must include a finding of net community benefit and that the amended application results in an acceptable planning outcome.
For completeness, despite the fact that Cleanaway sort to steer us away from the notion of a 'beauty contest', we record here that both Cleanaway and the Sicilianos made submissions about the relative benefits or dis-benefits that the amendment application has compared to what has been previously been approved by the Tribunal, particularly in relation to the relative merits of the landscaping outcomes.
We acknowledge those submissions but have proceeded with caution to avoid such comparative assessment for the reasons we have set out above. Where necessary however, we have referred to difference in plans in order to provide context to the proposed amendments.

[90]

The grounds of the Sicilianos challenge the use and development of Lot 2 under Option 1. This challenge is based on the following points:
Lot 2 is not included in the Landfill Permit. Therefore it cannot be the subject of the amended application.[40]
In the alternative, an amendment to include Lot 2 as part of the plans would be ultra vires or is otherwise now prohibited because:
The works being proposed form a part of use and development of the land as a landfill;
Under the present GWZA zone, the land cannot be used or developed for a landfill.
In submissions the Sicilianos have expanded on these grounds. They say that Option 1 seeks to maximise the footprint of the landfill and minimise the removal of material from stockpile 1 on Area A by including works on Lot 2. These works include filling that forms part of the landfill cap, a large swale to control runoff from and prevent erosion of the cap, and the construction of a detention pond that is necessary to manage this runoff. They say that given the underlying purposes of these works they are inextricably intertwined with a part of the landfill. Therefore the purpose for which Lot 2 will be used for is 'landfill', a prohibited use under the zone that now applies to that land.
Cleanaway says that the Sicilianos ground raises a characterisation issue about what is proposed to occur on Lot 2. Cleanaway says that:
- The stormwater detention basin on Lot 2 is a minor utility for the purposes of controlling stormwater from recreational land. It is therefore an as-of-right use under the GWZA that is exempt from works permission in accordance with clause 62 of the planning scheme.
- The earthworks that form the toe of the fill batter on Lot 2 are works for the purposes of Informal Outdoor Recreation. This batter requires works permission under the ESO4, but is an as of right land use under the zone.
- There is no proposal to deposit waste on Lot 2. The batter toe earthworks will only use clean fill (i.e. soil) material.
It further contends that:
- The permit is not proposed to be amended to include Lot 2 as part of the use permission under the permit for landfill.
- No use permission is sought for Lot 2 because the use to which it is proposed to be put to, i.e. informal outdoor recreational use, is as-of-right.
- No permission is sought for Lot 2 under clause 63.
- No permission is required for vegetation planting or fencing on Lot 2.
- The detention pond, swale and the earthworks are designed in the final form to be used for the park.
- The works will not be used in any way for the purpose of a landfill - it will be used by the users of or in support of the park.
- The real and substantive purpose of what is proposed on Lot 2 is a park and drainage of the park in its finished state.
Accordingly Cleanaway contends that what is proposed on Lot 2 is not prohibited because the infrastructure should not be characterised as using Lot 2 for a landfill.
We agree with Cleanaway that the determinative question about the use of Lot 2 is one of characterising what the works proposed by Cleanaway are in association with: the future use of the land as a park; or infrastructure associated with the landfill and hence seek to use Lot 2 for that purpose.
We also agree with Cleanaway that the detention pond and swale, considered on their own, would fall within the definition of minor utility installations. A 'Minor Utility Installation' is defined[41] as:

[93]

However, for the reasons that follow we are not persuaded by Cleanaway that the works being proposed can be separated from the ongoing management of the landfill on the adjoining land.
Landfill is not a land use term. It is use that is captured by the wider term, 'refuse disposal', the definition of which is:
Land used to dispose of refuse, by landfill, incineration, or other means.
We accept that under Option 1 there will be no refuse disposal on Lot 2 therefore that land will not contain fill for the purposes of refuse disposal. We also accept that the fill that will be placed on Lot 2 would be a form of structural works in support of the overall landform to be constructed across the landfill site which will have an end use as a public park.
However, we do not consider that this is the end of our enquiries as to what the functional characterisation of these works is and their purpose as relevant to the planning scheme. When considered in light of the evidence, particularly from Mr Green and Mr Nolan, it is clear that the purpose of the works serve to stabilise and maintain the landform so that it may serve two distinct purposes. This we think to be the difficulty in accepting the characterisation put to us by Cleanaway.
In planning terms the land that comprises the landfill will serve dual functions and have two uses. One will be the future use as parkland. The other will be land used for the purposes of refuse disposal, that is to say the ongoing containment of that refuse. This is perhaps best evidenced by the fact that the EPA indicates the land will be subject to its ongoing statutory control, through a rehabilitation PAN as a closed landfill, but nevertheless a landfill.
Quite apart from this statutory control over the site, the technical evidence that has been put before us confirms that it is necessary to not only design the landform to certain EPA guideline requirements for landfills, it is also necessary for ongoing management of the landform to maintain the integrity of the containment of the refuse. In simple terms this means that the design and the maintenance of the cap over the refuse, i.e. the landform and its slopes, are intimately tied to the design and future integrity of the landfill.
Put another way, the slope of the cap, the control of drainage over the cap and the management of that drainage flow are all integral to maintaining a secure landfill, a secure use of the land for the disposal (containment) of the refuse. In turn, the control of drainage requires the design of certain slopes and the construction of works that includes swales and detention ponds. It follows that the maintenance of the slope is managed to a large degree by stabilising the landform. The buttressing of the toes of the landfill is integral to this stabilisation and hence the maintenance of the landfill's cap.
We consider that the form of works being proposed, while corresponding to definitions that could equally apply to works on a raised landform being used for a public park and recreational purposes is nevertheless intimately tied to the ongoing management of the landfill. Therefore one part of the dual purpose of these works is to support an underlying use of refuse disposal, in this case a landfill.

[96]

Earlier we set out that the Sicilianos take issue with the fact that the amendment plans have sought to regularise the location and size of the leachate ponds and modify the stormwater retention basin at the south-east corner of Area C. They allege that none of these items were listed as part of the amendment application. They say that Cleanaway seeks to amend the plans by stealth to regularise these works.
While such items were not specifically nominated in the permit application form, the various plans and documents included in the application have always included these features, most relevantly in the SMP and the CEMP. These latter plans have contained the details (i.e. the location and form) of the detention basins and the leachate ponds respectively. As such we conclude that they have formed part of the application.
We therefore agree with Cleanaway and the Council that the extent of works and the land encompassed by those works has been apparent at all relevant times. We agree that the description of the works in terms of those matters being covered lacked some specificity, however we do not consider this to be sufficient reason to warrant further advertising or notice as suggested by the Sicilianos.
The submissions of the Sicilianos and the evidence they have called has addressed the effect of the location and size of the leachate ponds. They have also tested the evidence about the functionality of the stormwater retention ponds and the stormwater management plans. Thus, we have the benefit of the Silicianos as contradictors that have tested the full extent of the works and development before us.
We consider it relevant that neither the EPA, Melbourne Water nor the Council object to the form of these infrastructure elements.
Further, in respect to the detention basin, we consider that in reviewing the overall SMP for Option 2 it is open to us to consider the further detail about the detention basin in Area C. We observe that it is located where indicated in the 2008 endorsed plans. The present plans add detail to the design. We are not troubled by the inclusion of such design detail. As we have said, the merits of this design have been included in the evidence of the landscape and drainage experts called by the parties.
Finally, we agree with the submissions of the Sicilianos that while the application does not seek to amend the contours of Area C, it cannot be said that this area is completely excluded from our considerations. The amendments to the landscaping plans include amendments to this area.
Thus, we have before us aspects of Area C that are inextricably linked to this application. These are the form and function of the retention dam and the landscape elements proposed over this area. We do agree with Cleanaway however that the actual landform shape is not sought to be amended and therefore questions about the slopes and overall form of this part of the landfill are not before us.

[101]

The Sicilianos say that the increase in the final contour levels will be significantly different to the currently approved landform. As a result they contend that the new landform would be unacceptably intrusive to the views from their property and detrimentally affect its amenity. In particular, they claim they would lose long distance views from their property.
Mr Dennis disapproves of any raised landform, stating the views from his property to the edge of Port Phillip Bay have been lost and should be restored or at the very least not be intruded upon any further by an increase in the height of the landfill.
It is trite but nevertheless appropriate to acknowledge that the Option 2 proposal final contour levels will change the massing of the landform. The substantive question in respect to the visual amenity issues is however, about the impact the proposed levels will have as viewed from the Siciliano and Dennis properties. As for the issue about loss of views, we observe that as a starting point there is nothing in the planning scheme that applies to the site or the surrounding land that seeks to protects views.
In any event, we have considered the grounds raised by both applicants for review but for the following reasons we are not persuaded that the proposed increase in height or the overall massing of the landform will have an unacceptable effect on the amenity of each property.
We observe that in respect to Mr Dennis's complaints, the views from his property will be one of gently rising slopes to a subdued peak located over 200 metres from the Leslie Road boundary. Mr Wyatt's photomontages indicate that intervening trees and shrubs on the lower fore-slopes that have already been formed and capped, will screen much of these distant higher slopes. Indeed this was apparent from the site inspection and the advanced stages of growth of trees and shrubs planted over these slopes.
Cross sections provided in the permit application[42] and the view shed assessment by Mr Czarny both demonstrate that the elevated landform being proposed will make no material difference to the southern outlook from Leslie Road.[43] This includes the outlooks from Mr Dennis's property. This is largely due to the screening effects of the vegetation and the fact that landform will sit behind as demonstrated in Mr Wyatt's assessment.
In light of such evidence and the conditions we observed during the site inspection, we find that the proposed landform would not present any adverse planning outcomes in relation to Mr Dennis's property.
In respect to the Sicilianos' property, the question that arises from a landscape point of view is whether the height, slope and form of the proposal is acceptable from the southern and eastern perspectives. When confined to the question of visual amenity impacts, we are not persuaded by Mr Papworth's evidence that the proposed landform will be as intrusive as he suggests. While it is his evidence that landfills typically have 'gently sloping grassed embankments', the Landfill BPEM which we consider in more detail later in these reasons sets out a preferred range of 5% up to 20%. Steeper slopes can be entertained subject to appropriate erosion and landfill engineering.
Mr Papworth says that gently rising ground is more aesthetically pleasing than steep, planted and mulched slopes. However, in cross examination he explained that his main concern about such aesthetics was more to do with his opinion that steeper slopes were more difficult to maintain than gentle slopes and so over time landscaped areas ended up looking scrappy and un-kept. The photographs tabled by Cleanaway during Mr Papworth's cross examination indicates that with appropriate management vegetation can be maintained over steeper slopes. He also conceded that rip-rap in the stormwater swales could be designed to be aesthetically pleasing.
We agree with the submissions of the Council that Mr Papworth was never able to satisfactorily explain to the Tribunal why a vegetated slope located some 60m from the Siciliano property would adversely affect the Siciliano property's amenity. His reference to 'tall steep embankments' and the effect of slopes to the east and west 'hemming in' the Siciliano property are not substantiated by our assessment of the evidence and the plans.
Further, we agree with the Council about the context of the Siciliano property. The primary view to the south remains unaffected. Mr Papworth agrees that the modest change to levels to the north are not an issue. While issue is taken with the slope and its landscaping to the west (Area C), there is no application to amend the contours in this area. As to the eastern interface, whether at the 1999 levels or those now proposed, the Siciliano property was never going to be privy to claimed 'long' views over the final form of the landfill site. Under the 1999 contours, the land rose gently eastward toward a peak of RL50m before sloping back down to Clayton Road. It is trite to observe that whilst the proposal before us would see the land rise more steeply, the overall end outcome will be the same form of view: one of vegetated rising land.
As Mr Wyatt and Mr Czarny have observed, under the amended proposal the slopes facing toward the Siciliano property will contain vegetated garden beds and copses of trees. Such features are typically found in parkland and provide a pleasant amenity.
We have great difficulty in concluding that this mix of vegetation and slopes within the various view sheds available from the Siciliano property will result in an adverse amenity impact.
The purported sense of enclosure from the proposed land form on the Sicilianos' property appears to us to be overstated. The slopes on Area A to the east are offset some 50m from the Siciliano boundary under Option 2. The slopes to the north are lower and less steep and while the slopes to the west sit close to the boundary, they flow away from the Siciliano property while incorporating the same landscape treatment as the eastern view shed slopes.
We accept that because of the natural slopes of the land, the final landform will appear as a rising wedge-like landform in southerly aspects. However the soft, vegetated character of the landform and its blending within the wider landscape context of rising and falling land to the east and west means that it will not be out of place. Given these outcomes, we agree with Mr Wyatt's evidence that the vegetated character and the soft form of the landscape will present a high amenity to adjoining properties.
Given such findings and conclusion we are not persuaded that there will be unacceptable visual amenity impacts from the proposed landform on the adjoining land. We agree that the landform and the landscape vegetation will be different to that which had been previously approved. However, the changes will not be detrimental, indeed we find that there will be many positive aspects that arise from the amended plans.
We have also considered the possible amenity impacts to the wider public realm from the amended levels aided by Mr Czarny's analysis of the 1999 approved levels and those now before us. This analysis indicates the differences in changed levels will be barely perceptible from the public realm along Leslie and Clayton Roads vantage points. This is because to a large extent the amended levels do not affect the existing presentation of the existing foreground setting which has already been established and screens the more distant elevated portions of the landform that sit behind, as explained earlier.
Accordingly for the above reasons we are not persuaded that the amendments should be refused on the grounds pursued by the Sicilianos and Mr Dennis in terms of landscape and visual amenity impacts.

[109]

The EPA guideline, Siting, Design, Operation and Management of Landfills (the Landfill BPEM)[44] establishes a of design parameters for landfills. Relevant to the Sicilianos' grounds, this includes the design and management of landfill caps, including designating preferred grades for the cap and means for managing erosion risks.
Again we observe that the application of the Landfill BEPM is administered by the EPA, who have raised no concerns about the slope or means of erosion management put forward in the amendments.
The Landfill BEPM sets out that:[45]
- The design of a landfill cap is in part governed by the need to limit water infiltration.
- The gradient of a cap should be sufficient to prevent water from ponding.
- Gradients of 5% are adequate for shedding water, while gradients of less than 5% will require special design consideration to address water infiltration risks. Gradients of less than 1% should be avoided.
- Gradients should not be more than 20%, but if steeper, will require engineering controls to ensure stability and avoid erosion and maintenance problems.
The amended design involves a final landform that is largely compliant with these slopes. The exceptions would be in two areas:
- The lower portions of the southern flanks of Area A that extends into Area G has maximum slopes of 3:1 or 33%.
- The flanks of Area C (not part of this proposal) have slopes of up to 3:1 (or 33%).
Another face is compliant but presents a steep slope. This is the southern slope of the landform extending from Area B and into Area G which has slopes of up to 6:1 or 16%.
Two elements are included in the design to address these steeper slopes. One is the use of rock beaching or gabion structures along the drainage swales. The evidence of Mr Green is that the use of beaching or gabion structures is an accepted method in preventing erosion from stormwater flows over steeper slopes.
The second elements is the extensive use of thickly planted low shrubs and ground covering vegetation across the steeper slopes of 20% or more. This vegetation will be contained within garden beds.
From an engineering point of view, while is it preferable to avoid steep slopes of more than 20%, we accept the evidence of Mr Green that the departures from the preferred approach can be managed through these design elements. The use of engineering and landscape/vegetation measures accords with the Landfill BEPM.
As we have set out earlier, we are not persuaded that the maintenance issues are a sufficient reason to reject the management of the steeper slopes. The main evidence bought against the proposed landscaping of such slopes was that:
- It would be difficult to mow grass cover on steeper slopes; and
- Mulch (and soil) could erode off the beds leaving bare patches.
The evidence of Mr Wyatt and Mr Czarny is these garden beds, inclusive of mulch, can be maintained in a satisfactory condition. Their evidence is that the practice of using vegetation on steeper slopes is common enough that it does not present any particular challenge as long as the garden beds maintain a good cover of vegetation. While Mr Papworth held such concerns and produced photographs of eroded banks and poorly maintained mulch, he also acknowledged that photographs tabled by Cleanaway demonstrated other sites where mature vegetation has been maintained on steep embankments.
We are also conscious of the fact that much of Mr Papworth's concerns were about mowing grass and maintaining mulch on steep slopes. The LMP shows however that steepest slopes are in fact to be garden beds with a thick cover of vegetation. We accept that this may means more careful maintenance, as Mr Papworth highlighted and will require some care for workers, the design is not unworkable.
We are persuaded on the balance of the evidence that the design can accommodate the 20% and small areas of 33% slopes. Sufficient attention has been given to have in place erosion control works along the swales and use of garden beds and vegetation cover techniques to manage the risks. Ongoing management of these design elements will ultimately be a matter for the Council. It does not object. Nor does the EPA.
We therefore conclude that the design of the slopes and garden bed elements are acceptable.

[112]

First, in terms of the issues being raised about the detention pond in Area C, the location and general layout of this particular pond was part of the approval and subsequently endorsed plans under the 2008 permit application. The plans now before us show this pond in more detail and we acknowledge that this pond is shown to be larger than previously indicated.
We do not consider however that because this pond is larger it is contrary to the old plans or requires fresh approval. It lies generally in the same location as the currently endorsed plans show and its operation and function of collection of stormwater runoff from Area C swales is unchanged. In planning terms then, the further detailed design of this system is one we take to be in general accordance with the currently endorsed CEMP.
In passing, we also record here that some time was spent during the course of the hearing exploring the interplay between the landscape design elements along the common boundary between Area C and the Siciliano property and the functionality and maintenance of the stormwater swale on this same boundary. It was also put by the Sicilianos that the swales location conflicts with the location of landfill gas monitoring bores.
We agree with evidence of Mr Weise that the placement of trees along this boundary and the swale appears to be a tight fit, raising possible operation and maintenance issues. However, we do not consider that these issues are unresolvable to achieve an acceptable planning outcome in terms of providing an appropriate degree of ground cover plantings within the garden beds while providing access for maintenance. We agree with Cleanaway that these are matters of detailed design. We do not find that if the design requires changes to the location of boundary trees that this will detrimentally effect the amenity of the Sicilianos' property for the reasons we set out earlier.
Similarly, we consider that if there is any conflict between the swale's construction and operation with landfill gas monitoring bores, this is a matter for the EPA to deal with. This may be a matter of reviewing and installing new bores or some alternative monitoring arrangements. We do not consider however that this a reason to conclude the design is unacceptable from a planning perspective.
To be clear however, we repeat that what we have said before. While we recognise the LMP and CEMP plans for Option 2 that are now before us include the whole of the site, this being an amendment to the overall site permit, these plans do not amend the landform and layout of various elements of Area C.

[113]

Here our reasons deal with the operation of the stormwater system of swales and ponds proposed for Area A. It follows from our earlier conclusions about which amending plans to adopt that our focus is on the efficacy of Option 2.
Mr Wiese's evidence is that it appeared from the plans that the invert level of the swale around the west toe of Area A would be at the same invert level of the stormwater detention pond (5 West). If this was the case the flows in the swale would essentially back up. In such a situation the swales could be overtopped and stormwater would flow over the Sicilianos' land.
Mr Green's evidence however has explained that the base of this swale does not coincide with the invert of detention pond 5 west. Mr Green explained that the detailed design includes the following levels:[46]
- A spillway level for Pond 5 West of 33.12m RL;
- A crest level around Pond 5 West of 33.7m RL;
- A swale invert level at the Pond 5 West of 33m RL;
- A swale invert level at the north end of Area A of 35.2m RL; and
- A 1:100 year ARI[47] stormwater flow level in the swale of 33.5m RL at the point of discharge.
Based on these levels and the fall along the length of this swale, Mr Green has explained that the design is intended to operate so that stormwater will flow into the pond under all conditions. If it reaches the 1:100 year ARI event, the pond's spillway will operate. Therefore, there will not be the over spill scenario nor the backflow conditions that Mr Weiss says might occur.
We accept that the stormwater system set out by Mr Green will operate as he has explained. Mr Wiese's assessment was based on limited information, having to infer levels from larger scaled plans. Mr Green's explanation demonstrates that falls along the swale are consistent with acceptable design standards and that the detention pond will spill before the swale can overtop.
We observe that in many ways the layout for stormwater management under Option 1 would have been less complicated and less contentious. Mr Wiese's evidence was that this was the preferable option. However for the reasons we have already explained we do consider that Option 1 can be considered a valid planning option.
Given our assessment of Option 2 however, we conclude that an acceptable means for managing the stormwater runoff from the final landform can be achieved in the manner put forward.

[149]

We recognise that this site has been the subject of a complex planning history. Ultimately however we do not think that this history looms as large as some might have us consider. As we have already set out, we have before us an application to consider amendments to the level of the final landform. Linked with these levels are consequential amendments to the landscape plan and stormwater management systems. The landscape plan comprises of two parts. One is the soft elements of garden beds, trees and grassed areas. Apart from the visual amenity function, these elements are tied into and form part of the management of the landfill cap. The function is two-fold: to prevent the infiltration of rainwater into the landfill; and protect the integrity of the cap so it can perform this first function.
The second part of the landscape plan goes to the use of the landform as parkland. It contains all of the necessary soft and hard infrastructure of a parkland. To a large extent, while there has been some evidence against the various infrastructure being functional, i.e. active recreational areas that slope, we find such evidence to be unpersuasive. The evidence of Mr McGurn and Mr Czarny is that the planning policy and other related strategies call for high quality, functional, informal and formal recreational spaces not playing ovals or sporting fields. We agree with their evidence and the submissions of the Council and Cleanaway that what the landscape proposal delivers is a high quality parkland that addresses many of the aspirational strategies associated with the Chain of Park core park functions.
That said, we agree with the Sicilianos that this outcome is not intimately tied to the amended levels being sought. The same functional parkland elements could be incorporated into a range of landforms. Where we do disagree with the Sicilianos is that the amended landform will not affect the outcome. In fact what flows from our consideration of the evidence and the issues raised against the amended levels is that the changes are not detrimental to the overall strategic planning outcomes. We say overall because we recognise that one outcome being sought is to 'restore' positive elements of the landscape. Mr Dennis and the Sicilianos say that a positive element was the long views available from their land.
However, on the balance of the considerations we have set out earlier, we do not conclude that this departure is unacceptable. The changes in levels will not produce unacceptable amenity impacts to this adjoining land or the wider surrounds. In effect the delivery of long views is being restored, albeit from a different location, that being within the site itself rather than from Mr Dennis's or the Siciliano land.
Apart from this aspect of the amended plans however, we conclude that other elements of the planning strategies for this site strongly support the amendment. It will transition the site into a parkland and recreational space and do so in an efficient and timely manner. And it will do so in a way that results in a final packaged delivery of core recreational parkland that will benefit the community.

[165]

Mr Dennis has sought reimbursement of his legal costs and daily hearing fees. He says that he bought this application because of Cleanaway's 'continued non-compliance and determination to avoid its obligations under the current permit' left him with no choice but to bring VCAT proceedings. He asserts that 'fighting' Cleanaway to 'make sure it meets its obligations' has incurred impacts to his health and that of his wife, stress and costs. He believes he should be awarded costs on this basis.
The Tribunal may reimburse hearing fees and it may award costs. The power to award costs is set out under s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). The circumstances for awarding costs under this provision of the VCAT Act relate to the behaviour of a party or parties in the course of the proceedings. After considering such behaviour and the impact on other parties, a Tribunal may award costs if it considers it fair to do so.
The power to order the reimbursement of fees is set out under s 115B of the VCAT Act. In making such an order a Tribunal must consider the nature of, and the issues involved, in the proceeding, the conduct of the parties before or during the proceeding and the result of the proceeding.
Mr Dennis in affect seeks punitive costs based on the alleged behaviour of Cleanaway outside of these proceedings and on a presumption that he has been correct in bringing an objector appeal against the Council's decision to grant amendments to the 2008 permit.
It follows from what we have set out about the circumstances of this proceeding that:
- Cleanaway has been entitled to make and pursue an amendment to the Landfill Permit.
- Similarly Mr Dennis has been entitled to seek a review of the Council's decision to amend the Landfill Permit.
- The hearing fees for the review proceeding have been shared between Mr Dennis and the Siciliano parties.
- While the nature of the review proceeding has at times been complex, it has nevertheless not been unduly delayed by the conduct of Cleanaway. The adjournment between May and September 2017 arose from amended grounds of the Sicilianos. Cleanaway responded to these amended grounds by requesting the adjournment to consider its position in line with its submissions outlined to the Tribunal in May 2017.
- There has been no conduct by Cleanaway that has seen Mr Dennis incur undue or unfair costs in his application.
- The outcome of the appeal has been to vary the decision of the Responsible Authority but not to set it aside. The substance of the amendment application is supported by the Tribunal, however the variations to the decision arise from the adoption of Option 2 and the consequential rewording of the amended conditions in the permit.
In these circumstances we do not find it fair or reasonable to order Cleanaway to pay Mr Dennis's costs nor do we find the circumstances appropriate to order Cleanaway to reimburse his hearing fees.

[169]

Within sixty (60) days of the date of the amendment of this permit, amended plans must be submitted to and be to the satisfaction of the Responsible Authority. These must be dimensioned and drawn to a suitable scale and three copies must be provided. When approved the plans will be endorsed and form part of the permit. The plans must be generally in accordance with the plans and documentation, including the Construction Environment Management Plan (the CEMP) and Stormwater Management Plan (the SMP) prepared by Golder Associates and submitted in proceeding P2000/2017 at the Victorian Civil and Administrate Tribunal and the Landscape Master Plan (the LMP) Option 2 prepared by SMEC dated 24/07/2017 but modified to show:
- (a) mapped staging arrangements identifying the proposed order of rehabilitation works, de-watering, drying of slimes, re-profiling, filling and subsequent capping of the landfill, which:
  1. respond to the timing of works depicted in the Construction and Environmental Management Plan (CEMP) to be approved under this permit;
  2. indicates the estimated location of the western boundary of the existing liner for area E which indicates the extent of proposed excavation necessary in order to connect liners for areas E and F; and
  3. accord with the endorsed landscape plan(s) and Rehabilitation Plan.
- (b) pre settlement final contours for Area C which are based on a settlement rate of 10% to attain the required final contour levels, which take into account the existing settlement which has already occurred on previously filled areas, the interim capped area and unfilled areas catch drains and the proposed point of discharge;
- (c) progressive rehabilitation, capping and grassing of each stage commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5027 Leslie Road and extending south for a distance of at least 200 metres to the satisfaction of the responsible authority;
- (d) the provision of a new 1.7m high property boundary fence to the satisfaction of the responsible authority around the north, east and west sides of No 52 Victory Road (Lot 1 LP 31370) and No 60 Victory Road (Lot 2 LP25964) common with the subject site, at the full cost of the permit applicant; and
- (e) all consequential changes necessary to align all the plans with the detailed design shown in the amended plans prepared by Golder Associates Option 2 plans (Project No 1779864-010-M-Rev 0, Figures 3 and 4).
Within sixty (60) days of the date of the amendment of this permit, the endorsed CEMP must be amended to the satisfaction of the Responsible Authority by:
- (a) the inclusion of a plan of the subject land which depicts the areas in which the activities described in the proposed CEMP are to be carried out, including detail of areas proposed for the execution of works described in the CEMP for each area, including for:
  1. drying of slimes;
  2. storage of cover for each stage; and
  3. location of cell-liner boundary between Area F and E.
- (b) the inclusion of a works schedule describing the estimated timing and duration of each task forming part of each identified activity described in section 3.1 of the proposed CEMP including the activation of Area E commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5037 Leslie Road and extending south for a distance of at least 200 metres as a matter of priority;
- (c) the detailed design shown in the amended plans prepared by Golder Associates Option 2 plans (/1779864-010-M-Rev 0 Figures 3 and 4).
- (d) updating the dates as set out below.

[171]

Except where otherwise provided for in the CEMP, the permit holder must not receive any further fill material until council advises the permit holder that it is satisfied that Area F has been prepared in accordance with the CEMP and is ready to receive solid inert waste.
The use and development allowed under this permit must be carried out in accordance with the conditions of all relevant Works Approvals and Licences issued in respect of the land by the Environment Protection Authority (the EPA) including any Environment Management Plan or other document prepared under the Discharge Licence and in accordance with the endorsed plans, including the CEMP. The use and development must not be altered or modified (whether or not to comply with any statute, statutory rule or by-law or for any other reason) without the written consent of the Responsible Authority.
The operator must provide Council with existing conditions survey plans (typically aerial survey data) of the site until the entire site has been filled to the satisfaction of the Responsible Authority as follows:
- (a) Annual surveys of the entire site to be undertaken between 1st January and the 30th June and the survey plans submitted to Council within 30 days of the date of the survey.
- (b) Surveys to be undertaken of all active fill areas where levels are within 2m of the approved pre-settlement fill levels as a means of monitoring the surface on a regular basis. Surveys to be undertaken at intervals of no more than six (6) months and survey plans submitted to Council within 30 days of the date of the survey.
- (c) All survey plans to clearly highlight any overfilling above the levels indicated on endorsed contour plans.
The operator must at the completion of the capping of the landfill:
- (a) provide settlement survey beacons at points across each stage as approved by the responsible authority; and
- (b) provide quarterly reports on the extent of settlement, including the provision of graphical data which describes survey levels for each survey point.
Within 90 days of the date of the amendment of this permit a Rehabilitation Plan must be prepared to the satisfaction of the Responsible Authority that:
- (a) provides details of proposed arrangements for the progressive, capping and grassing of each stage of the landfill commencing with the land closest to the Dennis land known as Lot 2 PS 22847 Leslie Road and closest to the Allied Sands land known as Lot 3 LP 5037 Leslie Road and extending south for a distance of at least 200 metres.
- (b) Provides for the progressive development of landscaping of each completed stage incorporating all proposed landscaping of the subject site described in the Landscape Master Plan prepared by SMEC and identified as Version M dated 24/07/2017 and the staging of such planting.

At a glance

Court

Decision date

Before

Source

Judgment (230 paragraphs)

Siciliano v Kingston CC [2018] VCAT 125 (25 January 2018)

Parties

Legislation Cited (4)