SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156

SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156 - VCAT 2007 case summary — Zoe

[21]

1 The Lyndhurst facility is one of only two landfills in Victoria that is licensed by the EPA to accept prescribed industrial waste. It has been operating for the past 16 years accepting putrescible waste and prescribed industrial waste pursuant to two planning permits issued in 1990 and 1992. Last year the Tribunal, in a proceeding instituted by the Greater Dandenong City Council, declared that the materials permitted to be deposited by the EPA licence were "hazardous wastes" in the natural and ordinary meaning of the words, and as such were prohibited from being deposited at the Lyndhurst facility by virtue of condition 11 in the two permits. The effect of these orders is to render unlawful those aspects of the current operation of the Lyndhurst facility relating to the disposal of prescribed industrial waste pursuant to the licence.

2 We have decided that the two permits should be amended to remove these conditions. We have found that because of the strict EPA licence conditions relating to the condition of the materials received at the facility, their handling and treatment, in fact they do not constitute a hazard that the community needs to fear. There is no evidence that the Lyndhurst facility is not a safe facility, that its use for disposal of prescribed industrial waste causes any unacceptable effect on amenity or that there will be any change to amenity or impact on the environment as a consequence of amending the permits. Amending the permits to allow the Lyndhurst facility to continue operating as it has in the past would not be contrary to Government policy.

3 The Lyndhurst facility has a vital role to play in dealing with prescribed industrial waste until such time as a long-term containment facility is developed, or technological advances make disposal of this material unnecessary. For the immediately foreseeable future there will remain a need to dispose of some prescribed industrial waste. In our view, it is unrealistic and irresponsible to deny or ignore this fact. The Lyndhurst facility is essential in order to satisfy this need. To prevent Lyndhurst from continuing to accept prescribed industrial waste would expose the environment and the community at large to an unacceptable risk from the consequences of long term storage of materials in unsafe locations or illegal dumping.

[38]

14 The Lyndhurst facility is one of only two facilities in Victoria at present that are licensed by the EPA to accept prescribed industrial waste - the other is at Tullamarine. The Tullamarine facility has very limited additional capacity. At the time of the hearing, the Government was assessing the suitability of a site for a long term containment facility at Nowingi, near Mildura. Since then the Government has decided not to proceed with this long term containment facility following receipt of a panel report recommending that the project should not be approved. Until a long term containment facility is constructed and becomes fully operational, the Lyndhurst facility will play an extremely important role in the management of prescribed industrial wastes in Victoria.

15 The declaration proceeding was not concerned with the planning or environmental policy merits of whether the Lyndhurst facility should be used to dispose of prescribed industrial waste. Rather, it was concerned with the question of the legal interpretation of the 1990 and 1992 permits. The Tribunal's decision contains a chronology of events as to what happened over a course of 15 years in connection with planning permissions and environmental permissions. It also contains commentary on the issue of whether planning permissions under the Planning and Environment Act 1987 and environmental permissions under the Environment Protection Act 1990 represent interlocking or independent statutory regimes.

16 Unless and until the Tribunal's decision in the declaration proceeding is overturned by the Supreme Court, we accept its validity regarding the interpretation of conditions in the permits and its correctness regarding the chronology of events. Indeed, no parties challenged these matters before us. However, the EPA did seek to reventilate submissions it had made previously regarding the interlocking nature of the planning and environmental regimes. We do not depart from the view taken by the Tribunal on this issue in the declaration proceeding, which is that they are two independent, albeit related, regimes.[3] However, we have taken the opportunity to explore this issue further because we consider it has important implications for the way in which the EPA carries out its functions; the way in which it, as an organisation, interacts with the planning regime; and, ultimately, we consider it impacts on the community good.

17 We were also urged to do this by Mr Molesworth who submitted that this case was of such fundamental importance to the EPA's understanding of the way in which the environmental and planning systems work that it invites an authoritative decision to establish that system with clarity.

18 We therefore consider that the role of the EPA and the relationship between the planning and environmental regimes (as established under the Planning and Environment Act 1987 and the Environment Protection Act 1990) are important issues in this case.

19 Other matters that we consider are important are the need for prescribed waste facilities and the opposition to them which exists within the community.

20 A preliminary issue we must address is whether there are grounds upon which a request may be made under section 87 of the Planning and Environment Act 1987 to amend the permits. Then we must decide whether, on the merits of the case, the permits should be amended. Would an amendment of the permits to allow the facility to continue to receive prescribed industrial waste be generally consistent with relevant planning and environmental policies and with objectives for waste management in Victoria? Would the amendment achieve sound environmental, economic and social outcomes and result in a net community benefit? A determination of these issues will involve consideration of the Lyndhurst facility's compliance with relevant environmental policies and best practice. It will also be relevant to decide what weight should be given to the fact that the Lyndhurst facility has been openly operating as a prescribed waste facility for the past 16 years with full knowledge of all the parties and the community at large or whether this application must be considered as though it was a brand new permit application.

[44]

27 These principles were endorsed by the Tribunal (consisting of Deputy President Gibson and Member Keaney) in Jolin Nominees Pty Ltd v Moreland CC. In the Jolin Nominees case the Tribunal discussed when it would be appropriate to include conditions on planning permits relating to the achievement of ESD[10]principles. One of the principles identified by the Tribunal is that: "There is no need to apply conditions which are comprehensively dealt with by other legislation or regulation".[11] The Tribunal held the council should not impose conditions that were covered by other legislation or regulations unless there was a highly developed statutory or strategic base for doing so. Without this, there was a real risk that different standards would be imposed that involved unwarranted additional costs without corresponding net community benefit.

28 The sentiments expressed by the Tribunal in Hasan and Jolin Nominees reflect earlier views expressed by the Tribunal in Dinger v Shire of Bright[12] and Delaney v Huntley Shire Council[13]. To the extent that a different view was expressed in Simmons v Shire of Newstead[14], we prefer the approach taken in Dinger and Delaney and, more recently, in Hasan and Jolin Nominees.

29 We consider that as a general principle, where specific aspects of the use or development of land are controlled by an EPA licence or works approval, conditions in a planning permit for the use or development should not attempt to control the same thing. We consider it may be appropriate for a planning permit condition to state that the use or development (or specific aspects thereof) must be in accordance with a licence or works approval issued by the EPA (as amended from time to time) but the condition should refrain from referring to specific details or plans as these may change from time to time as the licence or works approval is upgraded. Reasons for supporting this general principle include the following.

30 Planning permit conditions tend to be fixed in time whereas EPA licence conditions are continually upgraded to reflect improvements to environmental best practice and changes in government policy.

31 EPA licences are subject to ongoing revision on a continuous improvement basis. By contrast, once a planning permit is issued, conditions are not reviewed unless an amendment to the permit is sought. Even then, any changes to conditions will be restricted to the amendments in question. It is difficult to draft planning permit conditions in a way that will ensure they keep pace with changes in technology and practice, improved standards and higher community expectations. What might be considered cutting edge standards and stringent conditions at the time a planning permit is granted, and which are quite appropriate at that time, may fail to meet required standards many years later. Responsible authorities are rarely in a position to closely monitor the details of planning permit conditions or make application to upgrade them on a regular basis.

32 In many situations this does not matter, but when dealing with potentially polluting uses it is in the community's best interests that current best practice is observed in connection with all aspects of such a use, including handling, storage, transport and disposal of materials used as well as processes employed. This is what EPA licences ensure. They are not fixed in time and conditions are often changed either at the time licenses are renewed or at other times. They therefore provide a far more flexible mechanism for controlling the detailed technical aspects of a use or development than planning permit conditions.

33 A further difficulty associated with planning permit conditions attempting to address technical aspects of a use or development is the risk of inconsistencies arising between the way in which language is used or understood in a planning or plain English context and the way in which it is used or understood in a technical context or within the environmental regime operating under the Environment Protection Act 1970.

34 This is the situation that has arisen in the present case. The Tribunal in the declaration proceeding provided a chronology of the relevant events that had occurred since the granting of the first planning permit and works approval for the Lyndhurst facility. This chronology identifies a shift in the language used by the EPA from that in the license conditions associated with the first works approval application WA1206/9 in 1990 to the amended licence conditions following works approval WA1943/1 issued in 1991 specifically allowing prescribed industrial waste. Although at all times the council was aware of the nature of wastes being deposited at Lyndhurst, with changes in the EPA licence conditions to include prescribed industrial waste, the language of the planning permit was not amended to reflect the shift in language used by the EPA, which has resulted in an inconsistency between what the planning permit allows and what the EPA licence allows.

35 Regrettably, there is little correlation between terminology used in EPA policies, publications and licenses relating to waste management, and terminology used in planning schemes. Planning scheme provisions relating to waste management are outmoded and inadequate.[15] The lack of correlation between terminology used within the planning and environmental regimes is something that the EPA needs to be aware of and take account of.[16]

[45]

36 At one point during the hearing, Mr Rodda (who gave planning evidence on behalf of SITA) was asked what control the responsible authority would be able to exercise over the type of wastes deposited at the Lyndhurst facility if the proposed amendments to the planning permit conditions were made. A more relevant question in our view is why the responsible authority would want to exercise control over the type of wastes to be deposited if it has the assurance of knowing that the only waste being deposited is licensed by the EPA? The council does not have the expertise or resources to meaningful assess, control or determine what specific wastes should be accepted or to categorise them according to the complex system of classification (of hazards and wastes) that is administered by the EPA. In our view, control over the type of wastes to be deposited is best left to be managed by experts within the EPA.

37 On the other hand, responsible authorities and the community have a legitimate interest in knowing with certainty what purpose land is to be used for. Is land to be used for the purpose of a landfill for disposal only of putrescible and solid inert waste, or is to be used for the purpose of a landfill for disposal of prescribed industrial waste? Is it to be used for the purpose of a long term containment facility? The characterisation of land use is extremely important within the planning system and it is important that the Environment Protection Authority appreciates this aspect of the planning system.

38 The purpose for which land may be used or developed should be stipulated in what the permit allows. Conditions may govern how the land may be used or developed but a condition cannot be used to change the purpose for which land may be used that is allowed by the permit. Thus, if a planning permit allows land to be used for the purpose of landfill for the disposal of putrescible waste and there is a permit condition that the land may only be used in accordance with an EPA licence, the EPA could not, by amending the licence to allow for disposal of prescribed industrial waste, thereby change the purpose for which the land could be used under the planning permit. The EPA licence would not take priority over the planning permit for reasons we discuss later.

39 We consider that planning permits to use and develop land for refuse disposal (which is the term used in the planning scheme) may legitimately draw distinctions between broad categories of purpose in terms of the nature of the waste to be disposed of. Such distinction should be reflected in what the permit allows. Thus a planning permit may permit land to be used for refuse disposal by landfill for the purpose of disposing of putrescible waste and solid inert waste, or land to be used for refuse disposal by landfill for the purpose of disposing of prescribed industrial waste. If there was to be a change in the broad category of waste to be deposited at the landfill then an amendment of permit would be required to alter what the permit allows. Alternatively, a permit could simply allow for refuse disposal by landfill and then it would depend entirely on the EPA licence as to what wastes were deposited.

40 Engineering standards for landfills accepting prescribed industrial waste are higher than for those accepting putrescible waste and there are also planning implications which differ between the two, for example buffer distances may be different. So far as the community is concerned, it perceives a significant difference between a landfill accepting putrescible waste and one accepting prescribed industrial waste. Under the Planning and Environment Act 1987 there are generous rights of review by third parties but under the Environment Protection Act 1970 there are only limited rights of review for third parties in respect of works approvals and none in respect of licences. Thus if the community has participated in the process leading to the grant of a planning permit, they want certainty about what has been allowed and to know that this will not change without their knowledge and potential input. Therefore, as a matter of principle and based on the philosophy of the Planning and Environment Act 1987, it would not be acceptable for a planning permit to be overridden, in terms of what it allowed or its conditions, by an EPA licence.

41 The EPA has a view that the environmental and planning regimes are interlocking systems but the Environment Protection Act 1970 intends that precedence be given to regulations, orders and instruments under it over any conflicting regulations, orders or instruments under any other Act. Hence it says in the present case that priority should be given to the EPA license over the planning permits.

42 Apart from issues of principle and philosophy, we consider that this view is misconceived in law. We agree that from a public policy perspective the two systems should be interlocking, that there should be consistency between them and that the EPA should be regarded as the pre-eminent authority in the state when it comes to matters regarding the control of pollution and protection of the environment. Nevertheless, in law the planning and environmental systems are independent in terms of enforcement, and the need for and operation of permits, licences and works approvals.

43 There is a clear intent expressed in the Planning and Environment Act 1987 for there to be integration and coordination between planning permits granted under the Planning and Environment Act and licenses issued under the Environment Protection Act. This is evident from the objectives of the planning framework as set out in section 4(2)(a),(c) and (f) of the Planning and Environment Act 1987; the system of referrals established under the Act and planning schemes; and various aspects of the State Planning Policy Framework in planning schemes. It is therefore undesirable for there to be a conflict of approach or position between a council responsible for administering planning schemes and permits granted under the Planning and Environment Act 1987 and the EPA responsible for administering the Environment Protection Act 1970 and licenses issued thereunder.

44 The EPA submitted that:

[50]

47 We agree that as a matter of good practice and sensible policy conflict between planning permits and EPA licences should be avoided. Further, we have indicated that as a matter of general principle, detailed regulation of the technical aspects of use or development allowed under a planning permit should be left to the EPA licence. However, we consider it is wrong in law to say that an EPA licence takes precedence over a planning permit in the event of a discrepancy between them. Each must be complied with.

48 General principles of statutory interpretation lead to this conclusion.[17] Whilst later Acts may repeal earlier inconsistent Acts, where such repeal is by way of implication only, courts have generally held there must be very strong grounds to support the implication of repeal, "for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other."[18]

49 Even if the Environment Protection Act 1970 effects an implied repeal of earlier inconsistent legislation, it cannot prevail over later Acts. Indeed it is possible that a later inconsistent Act could repeal provisions of the Environment Protection Act, especially if the later Act contains special provisions inconsistent with earlier general provisions. The Planning & Environment Act 1987 is a later Act than the Environment Protection Act 1970. In our view, nothing in the Environment Protection Act would operate to give priority to licences issued under it over the later Planning & Environment Act and permits issued under it. Rather, the planning permit operates as an independent permission that must be complied with in accordance with the provisions of the Planning and Environment Act 1987 and the planning scheme, irrespective of what might be contained in the EPA licence.

50 For these reasons we endorse what the Tribunal said in the declaration proceeding, that the planning regime and the environmental regime are two independent, albeit related, regimes.

[54]

53 If the EPA truly wishes to ensure there is an interlocking relationship between the planning and environment regimes, it needs to pay attention to the complexity and confusion currently surrounding its numerous policies and publications.

54 Many of the witnesses who gave evidence at the hearing acknowledged how confusing is the language and terminology used, the hierarchy of documents, their lack of integration with one another and with planning schemes, and even the layout of documents themselves. Whilst superficially they purport to be written in a plain English style, they are really only comprehensible, in terms of appreciating their nuances, by someone already well versed in their detail and familiar with what they are intending to say. The need for these documents to be used and applied by people who are not EPA experts seems at times to have been overlooked. The fact that expert evidence was required to be given by Mr Bruce Dawson, an officer of the EPA, to assist the Tribunal in navigating its way through the documents relevant to this case illustrates our point.[20] Mr Rodda described them as a matrix: we liken them to a maze. Despite this, we are satisfied that the path through the maze outlined by the various witness on behalf of the EPA and SITA is accurate.[21] We will address what we consider they mean and their implications for this application later in our determination.

55 In our view, there is an urgent need for the EPA to rationalise its documentation. EPA policies, guidelines and other publications should be consistent with one another, accessible and easy to navigate by all users, not just those who already know what they say and where to go to find it. Language should be consistent.[22] Whenever a document is updated or a new document is produced, it should be part of a comprehensive exercise to ensure that it accurately cross references to other relevant documents and vice versa. This applies both to other EPA documents and documents within the planning system such as the Victoria Planning Provisions (and hence all planning schemes).

[66]

68 We consider that the council has misconstrued what the Tribunal said in Jolin Nominees on this point. We believe it was expressing caution about applicants relying upon the outcome of Tribunal decisions concerning other land as a ground for justifying an amendment to a permit in respect to their own land. For example, the fact that the Tribunal may have allowed a more intensive development on another lot in the same street could not ordinarily be relied upon as a material change of circumstances to justify an amendment to a permit to allow the same intensity of developments on other land. Decisions about individual permit applications will usually turn upon their own facts, which will vary from site to site even within the same street. To constitute a material change of circumstances, a Tribunal decision must have particular relevance to the permit or land in question.

69 In the present application, the relevant Tribunal decision is not in respect of another case but concerns the subject land. Its effect was to change the accepted view of the lawfulness of the existing operation of the Lyndhurst facility under the two planning permits. Both the applicant and the EPA had understood that the EPA licence was consistent with the planning permits and that in operating the Lyndhurst facility SITA was in full compliance with all its legal obligations. This was also the understanding of the council up to a certain point in time. The Tribunal's decision in the declaration proceeding changed this understanding and put SITA in breach of its planning permit. We find that this constitutes a material change in circumstance. 'Circumstances' is a broad term which does not just relate to facts but may encompass many factors. The Tribunal's determination in the declaration proceeding has fundamentally altered the basis of the use of the Lyndhurst facility and its ability to accept prescribed industrial waste. It can no longer do so lawfully unless the permits are amended. That an operation, which has been considered by all concerned to be lawful, is now held to be unlawful in our view represents a very material change in circumstances.

70 Having found that the Tribunal's decision in the declaration proceeding constitutes a material change of circumstances which has occurred since the grant of the permits, a sufficient ground has been established under section 87(1)(d) of the Planning & Environment Act 1987 to justify amending the permits. We must now decide whether it would be appropriate on planning and environmental grounds to do so. We do not consider it is necessary for us to rule on the other grounds put forward in the application or by the council. Some of those matters are relevant to the merits of the proposed amendments and we will consider them in that context: some of them are not relevant. It is not necessary to decide whether in themselves they would constitute a material change in circumstances within the meaning of section 87(1)(d).

[67]

71 It was submitted on behalf of the council that we should make a decision about the planning merits of the proposed amendments as though this were an application to commence a new use for the purpose of depositing hazardous wastes. Mr Dreyfus submitted that we cannot look at the existence of the current operation and the fact that it has been operating unlawfully for the past 16 years. In support of this proposition Mr Dreyfus relied on the Faithland case[26] where the Tribunal held that in determining whether to grant a permit, past unlawful use or development is not a relevant factor in determining whether consent should be granted. The planning application should be decided on its merits, ignoring any arguments based directly or indirectly upon unlawful use.

72 We agree that our decision should be based upon planning merits. It would not be appropriate to amend the permits if the amendments were without merit simply on the basis that the use had been in operation for a long period, albeit unlawfully from a planning perspective. We consider it is unrealistic though in the circumstances of this application, which is an application to amend conditions in an existing permit, to ignore the past operations of the Lyndhurst facility, its planning history, or the fact that it is an existing use[27] and it holds an EPA licence for the wastes in dispute. This is not an application for a new permit where a use has been operating previously without a permit. The use has been operating with a permit since its inception and continues to do so. It is only a condition of the permit regulating one aspect of the use that is in question. We therefore hold that past use of the Lyndhurst facility is relevant for the following reasons.

73 The current and past operations of the Lyndhurst facility enable us to judge whether there have been unacceptable adverse effects on the environment or surrounding amenity. Past operations are relevant in terms of need, which we will deal with shortly. They are also relevant when considering EPA waste management policies.

74 In various places, EPA waste management policies provide let-outs for existing facilities. The Lyndhurst facility is an existing facility fully compliant with all EPA requirements. As we have previously held that the planning regime and the environmental regime are independent systems, the fact that aspects of the operation of the Lyndhurst facility have been in breach of its planning permits does not mean that it is not thereby compliant with its EPA licence. From the perspective of the environmental regime and for the purposes of interpreting and applying waste management policy under the Environment Protection Act 1970, the Lyndhurst facility is an existing lawful facility. This fact cannot be ignored in making our decision.

75 It is also relevant to look at the planning history associated with the grant of the permits to identify what the understanding was of the nature of the use being permitted.

76 The original permit application was advertised, objections were received but there were no applications for review. The council officer's report, which led to the grant of the 1990 permit, described the proposal as follows:

[78]

89 We find with respect to need that although there is a significant degree of uncertainty with respect to the magnitude of the future prescribed industrial waste stream, it is clear from the evidence of Mr Bruce Dawson, the submission of the Minister, the data in SITA's tabled annual reports and the material from the EPA website, that if prescribed waste is excluded from Lyndhurst, there is limited capacity to accommodate this waste elsewhere in the short term. The only other facility licensed to take prescribed industrial waste in Victoria is Tullamarine (with some limited capacity for contaminated soils at Dutson Downs). It was the evidence of Mr Parker and Mr O'Keefe that if Lyndhurst were prohibited from taking prescribed industrial waste leaving Tullamarine the only option then current demand would see this facility fill within 1 year.[29]

90 We note that if receipt of the prescribed industrial waste presently taken at Lyndhurst is found to be inconsistent with policy, a parallel argument could be made with respect to Tullamarine. The outcome of such a finding would require all prescribed industrial waste in Victoria to be stored or transported interstate.

91 We find that storage and transportation interstate are not viable options in the short-term. The volume is too great to be stored in any of the existing repositories.[30] Nor can there be any confidence that the material could be shipped interstate.[31]

92 We find therefore that Lyndhurst has a vital role to play in dealing with prescribed industrial waste until such time as a long-term containment facility is developed, or technological advances make disposal of this material unnecessary. Since the hearing, the Government has announced that the Nowingi proposal will not proceed. This therefore means that the length of time before a long term containment facility is developed, if at all, is uncertain, thereby reinforcing the current need for the Lyndhurst facility to be able to continue to operate.

93 Unfortunately, prescribed waste facilities have been successfully, but unjustifiably, demonized by some people opposing them as "toxic waste dumps" thereby creating great anxiety and fear about them in the general community.

94 Prescribed industrial wastes include materials that are the waste and by-products of industries from which we all benefit and in some cases are materials that we deal with in our everyday lives. They are used, transported and stored throughout metropolitan and country areas, including residential areas, constantly without incident and without most people being aware of their presence. There are varying regimes administered by the EPA regarding their use, storage and transport to ensure they are not a danger to people, property or the environment. These substances are part and parcel of an industrialised society and essential to the community. Used or disposed of irresponsibly, such materials can be hazardous in terms of being harmful to health and the environment: experience has demonstrated this. People are right to be concerned that this does not occur in the future.

95 However, some people are unwilling to accept that prescribed industrial waste can be handled and disposed of with minimal risk of harm. They are not prepared to accept the authority of the EPA as a body capable of administering waste management safely or to acknowledge evidence that this can and is being done. They demonize prescribed industrial waste as "toxic waste" and characterise all prescribed waste facilities as "toxic waste dumps". By their actions, they are able to generate widespread community opposition to such facilities on the basis of fear and adverse perception.

96 However, as the Court of Appeal said in Optus Networks Pty Ltd v Stonnington[32]:

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97 To the extent that community concerns and anxiety about prescribed waste facilities are reasonably founded on facts or evidence, they deserve consideration. But when they go beyond this and are based simply upon unsupported assertion, prejudice, or unrelated scientific or journalistic articles quoted out of context, little weight can be given to them. As a Tribunal, we are bound to decide cases based on the weight of evidence and argument, not weight of numbers or unfounded concerns.

98 There is no question that the community must be protected from the adverse effects of materials used in industry and day to day life and that wastes must be disposed of responsibly. But if appropriate facilities are not provided for their disposal (or containment) they will need to be kept and stored in far less controlled and safe environments; or they will be disposed of illegally by dumping on land, in waterways or to sewer. Either alternative will give rise to much greater risks to health and the environment than if prescribed industrial waste is responsibly disposed of in properly designed and operated facilities such as Lyndhurst.

99 We acknowledge the increased emphasis of waste management policy towards the minimisation and recycling of waste with containment and disposal being the choices of last resort. But for the immediately foreseeable future there will remain a need to dispose of some prescribed industrial waste. In our view, it is unrealistic and irresponsible to deny or ignore this fact. The Lyndhurst facility is essential in order to satisfy this need. To prevent Lyndhurst from continuing to accept prescribed industrial waste would expose the environment and the community at large to unacceptable risks from the consequences of long term storage of materials in unsafe locations or illegal dumping. These risks far outweigh the perceived risks associated with licensed and properly managed prescribed waste facilities that some people fear.

100 For these reasons, we do not consider that adverse public perception or fear should outweigh the need for the Lyndhurst facility, especially when such perceptions and fears are not reasonably founded on fact.

[82]

102 The subject site is located within the Rural Zone under the provisions of the Greater Dandenong Planning Scheme. A narrow strip of land along the northern boundary is zoned Urban Floodway. Land to the north of the Urban Floodway Zone is zoned Industrial 1 as is the land to the east of the subject site.

103 The land is also affected by a Development Plan Overlay Schedule 3 (DPO3) and the northern section within the Urban Floodway Zone by a Land Subject to Inundation Overlay (LSIO). The LSIO seeks to allow for the free passage and temporary storage of floodwaters and raises no matters of relevance with respect to the present application. The Development Plan Overlay provides for future industrial uses of the land and seeks to ensure that a permit does not prejudice the outcomes contained with the South-Eastern Growth Area Plan.

104 The City of Greater Dandenong has an amendment afoot - Amendment C87. This follows on from an earlier amendment, C67, which has not been proceeded with. It was Mr Rodda's evidence on behalf of SITA, that the two amendments were equivalent, particularly as they relate to the subject site. The amendment seeks to implement a structure plan for an extension to the Dandenong South Industrial Area and includes 680 hectares identified as the Lyndhurst site containing the Lyndhurst facility. The plan identifies a number of constraints on the Lyndhurst site including identifying the SITA land as being unsuitable for industrial development and proposing this land remain within the Rural Zone.

105 The implementation of the amendment would add the land to the south and east of the subject site to the existing Industrial 1 Zone. The council contended that neither C67 or the foreshadowed C87 could be considered as a seriously entertained planning proposal. We find that weight can be given to the amendment, given the C67 version was exhibited in 2005, and a new amendment to the same effect will soon be exhibited. The amendments indicate the direction of Council's thinking regarding the future of the land and surrounding area.

106 Particular provisions of the planning scheme that are relevant to the application for review are contained at Clause 52.10 with respect to uses with adverse amenity potential. The table to Clause 52.10 sets out no minimum threshold distance for sanitary and garbage disposal in a landfill from a residential zone. This use is subject to a Note 1 meaning that the threshold distance is variable being dependent on the process to be used and the material to be processed and stored. There are no provisions in the table to clause 52.10 for hazardous or prescribed industrial waste disposal sites.

107 The Tribunal in determining an application for review under the Planning and Environment Act is required to have regard to a number of matters which include the relevant planning scheme and relevant State Environment Protection Policy. The Responsible Authority (and the Tribunal) in its shoes is also required to consider under the provisions of Clause 60 of the Act any significant effects the use or development may have on the environment and may consider if the circumstances appear to require it, any significant social and economic effects of the use and development.

108 State Planning Policies relevant to the application for review are:

[99]

120 No distinction is drawn within the definition in the planning scheme between types of refuse disposal based on the type of waste deposited. There is no reference in the planning scheme to a specific threshold distance for a landfill used to dispose of prescribed industrial waste, rather the threshold distance is stated to be variable.

121 We are satisfied that the subject land is suitable to be used for disposal of prescribed industrial waste by landfill for the following reasons.

122 The zoning of the subject site and surrounding land is compatible with its use for such a facility. When amendment C87 proceeds the facility will be entirely surrounded by land in the Industrial 1 Zone. It is part of one of Melbourne's major industrial areas and is of metropolitan significance. The site is well located to serve a significant proportion of businesses that generate prescribed industrial waste. It is well served by the freeway and arterial road network, and trucks may access the site from this network without having to pass through residential areas.

123 We consider that a proximate and accessible facility which can accept prescribed industrial waste has important economic benefits for industry not only in the Melbourne metropolitan area but Victoria-wide. The costs to and risks for industry and the community if such a facility was not available would be significant.

124 Some submissions were made by R.A.T.W.I.S.E about the potential impact of dust from the facility on a bakery which has established recently in the industrial estate to the north of the site. We do not consider these submissions are relevant. This particular use, has established in the area in the full knowledge of the existence of the Lyndhurst facility. Uses which establish in an industrial area are responsible for ensuring that they can operate in that environment satisfactorily.

125 Procedures are in place at the Lyndhurst facility to minimise dust. However, there is a separate condition in the 1992 permit which requires that the use and development should not cause nuisance or injury to, or prejudicially affect the amenity of the locality by reason of (inter alia) dust. Therefore if dust is a problem, it is always open to the responsible authority to take enforcement action. We believe that caution must also be exercised in raising issues about dust to be sure that it emanates from the subject site and not from nearby market gardens. Similarly, to be relevant in this particular application, we would need to be satisfied that it was dust associated with prescribed industrial waste that was a problem as distinct from dust associated with putrescible waste, which the Lyndhurst facility also deals with.

126 We are not satisfied that the issues raised by R.A.T.W.I.S.E on this point have any substance or could be used as an argument against amending the permits.

127 We find that amending the permits will not result in any adverse amenity impacts. The council produced no evidence of complaints about operation of the facility. A letter from Casey City Council, which is the adjoining municipality where the Lynbrook Estate is located, stated:

[101]

128 R.A.T.W.I.S.E tabled one letter from a resident of Colemans Road who alleged he had suffered adverse health effects from an "awful smell" from the Lyndhurst facility last year. It is likely that the incident referred to arose from contaminated soil from a gasworks. We address this later in the section of our determination dealing with air quality. We are satisfied that whilst there have been some incidents of odour giving rise to complaints, there are no persistent problems or consistent levels of complaint about odour or any other adverse amenity impacts. We are satisfied that when there have been complaints, measures have been instituted to address them.

129 We do not consider that in this location, which is a rural/industrial environment, the occasional odour incident is a reason for refusing to amend the permits or for saying that the Lyndhurst facility should no longer accept prescribed industrial waste. The site also operates as a landfill for putrescible waste and this may also give rise to the occasional odour problem. Occasionally odour may also originate from the market gardening activities in the area.

130 One of the reasons why a rural/industrial area such as Lyndhurst is a good location for this type of facility is the buffer distances that exist between it and residentially zoned land. EPA regulations and licences control emissions. However, even with good pollution control technology and practice, there may still be unintended emissions which must be anticipated and allowed for. The role of buffer distances is to allow unintended or accidental emissions to dissipate without adverse impacts on sensitive land uses. We are satisfied that the Lyndhurst facility meets EPA requirements regarding air emissions. We consider that the 1 kilometre buffer distance between the facility and the nearest residentially zoned land at Lynbrook Estate is adequate and that experience with the operation of the Lyndhurst facility over the past 16 years has demonstrated this to be so. The Willow Lodge Mobile Home Village, which is located approximately 1.5 kilometres to the west, is not in a residential zone but in a Green Wedge Zone. Nevertheless, it is a concentration of residential use but, as with the Lynbrook Estate, we consider that the buffer distance is adequate.[33]

131 We acknowledge there are some dwellings that are in closer proximity to the Lyndhurst facility. However, they are located in a Rural Zone and residential use is not a purpose of this zone. The amenity of dwellings in a Rural Zone may be adversely affected by activities within the zone and cannot be expected to be the same as in a residential zone where the primary purpose is residential use. When the surrounding land is rezoned to the Industrial 1 Zone, dwelling will become a prohibited use. It can be expected that existing dwellings will phase out over time with transition from rural use to industrial use. We note that with the exception of the letter tabled by R.A.T.W.I.S.E referred to earlier, there were no submissions from the local residents. Indeed, there were letters tabled by SITA from residents of Colemans Road stating that neither the Greater Dandenong City Council or R.A.T.W.I.S.E represented their interests.

132 We have therefore concluded that there will be no adverse amenity effect if the permits are amended.

133 Amendment C87 to the Greater Dandenong Planning Scheme does not propose to include the subject site in the Industrial 1 Zone but rather leaves it in the Rural Zone. This is because future use of the land after it ceases use as a landfill will be for open space purposes as the land will not be suitable for industrial use. Pumping of leachate will be required for many years. However, the site's strategic future as open space is not its dominant value in a planning context. Its greatest significance in a strategic planning context is its current use as a landfill, which includes a landfill licensed by the EPA to accept prescribed industrial waste. The need for such facility to serve Victoria has already been addressed. The life of the Lyndhurst facility is not constrained in the way that the Tullamarine facility is. We therefore consider that there are no planning issues relating to the future use of this site that will be counter to amendment of the permits.

134 Finally, we consider that amending the permits is supported by planning policy. Local planning policy in the Greater Dandenong Planning Scheme acknowledges the significance of the Lyndhurst facility, although not specifically as a facility accepting prescribed industrial waste. The objectives of planning in Victoria, specifically section 4(1)(e) of the Planning and Environment Act 1987, and the State Planning Policy Framework (Clause 11.03-4) promote the protection and efficient use of public utilities and existing urban infrastructure.

135 In our view, the Lyndhurst facility must be regarded as an important item of urban infrastructure in terms of waste management of State significance. It has been designed and engineered to accept prescribed industrial waste for disposal. In terms of an efficient use of resources and infrastructure it is desirable that it be permitted to be used for the purpose for which it has been designed and built. It is equally desirable that a landfill that can accept prescribed industrial waste be co-located with an existing landfill which accepts putrescible waste, if possible. Each type of landfill will require buffer distances which adequately separate it from sensitive land uses. Such sites are not readily available. Thus it is a far more efficient use of land if they can be co-located rather than requiring two separate facilities. Equally, it is more desirable if an existing facility can be used for such purpose rather than establishing a new facility, which experience has demonstrated is extremely difficult.

136 In conclusion, there was no evidence that the Lyndhurst facility is not a safe facility, that its use for disposal of prescribed industrial waste causes any unacceptable effect on amenity or that there will be any change to amenity or impact on the environment as a consequence of amending the permits. Rather, we consider that the location; the zoning of the subject site and surrounding areas, existing land use; and buffer distances make this a suitable location for a landfill for prescribed industrial waste. There are no planning considerations which in our view would militate against amendment of the permits.

[103]

139 First, it is necessary to address the status of the Hazardous Waste Consultative Committee Report dated April 2000 and the Government response to this report dated December 2000, which were heavily relied on by the council.

140 The Consultative Committee was set up by the Victorian Government in February 1999. The role of the committee was to provide advice on the development of statutory industrial waste management policy in concert with the EPA. The committee recommended that hazardous wastes either be safely stored (pending reclaimation) or consigned to well located, designed and operated long term containment facilities.

141 The report makes a number of recommendations with respect to siting hazardous waste facilities including primary exclusion criteria, which would eliminate sites from consideration, and secondary criteria, which would justify eliminating a site from further consideration unless the measure of protection which the criterion was intended to provide can be assured in other ways. The report also recommended buffers which include, among other things, a core radius of 500m with compatible land uses owned and controlled by the operator of the waste facility together with an outer zone of 5km within which there will be no sensitive uses unless permitted in accordance with a planning overlay.

142 The subject site clearly fails to meet these criteria as well as a number of other of the recommendations of the Hazardous Waste Consultative Committee. It is our view that the criteria are highly aspirational and it would be extremely difficult for them to be met by any site.

143 There was a Government Response to the Hazardous Waste Consultative Committee Final Report (December 2000). The recommendations about buffers were accepted with some qualifications. We note however, that these recommendations apply to "any future hazardous waste facility". We do not consider that they are intended to apply to existing hazardous waste repositories. Any changes to such facilities should be assessed on a site by site basis. This view is based on the response to the recommendation that existing prescribed waste landfill be phased out over the next 3-5 years and that retrieval repositories and long-term waste containment facilities be phased in over the same period, which was:

[106]

148 Mr Tim Pollock gave evidence with respect to the impact of past disposal of prescribed industrial waste on air quality. It was Mr Pollock's evidence that there was less contribution to off-site odour from the prescribed industrial waste component of the activities on the Lyndhurst site than from the putrescible waste component. He reported that a significant number of complaints attributed to prescribed industrial waste were received (15) in 2001 at a time when contaminated soil was being accepted from the West Melbourne Gasworks. The complaints record attributed to prescribed industrial waste post 2001 however show a marked decline to three complaints in 2004, six in 2005 and one to June in 2006; the number of complaints in 2005 being associated with contaminated soil from the Morwell Gasworks.

149 Mr Pollock attributed the lower number of complaints associated with gasworks soil in 2005 to a set of standard operating procedures put in place by SITA which included: perimeter odour surveying, immediate covering of material; timing of the acceptance of material and deployment of a de-odorising unit[34]. Further, he advised that there are very few gasworks sites left in the State of Victoria to be rehabilitated and it is unlikely that there will be any significant future deposition of such material at Lyndhurst.

150 Mr Pollock provided evidence from a study carried out by his firm in 2002/2003 of particulate emissions from the Lyndhurst facility in the size range 10 microns or less ie. the range that has potential health impacts. The study found a detectable concentration of only one contaminant that could be attributed to prescribed industrial waste. The contaminant detected was lead and the concentrations found were well below the air quality guidelines for this compound contained in SEPP Air Quality Management. It was Mr Pollock's evidence that SITA no longer accepts the lead slag material that had been identified as giving rise to the signal detected by his company.

151 There was no evidence led by the council or R.A.T.W.I.S.E relating to air quality. Submissions by R.A.T.W.I.S.E raised the issue of odours which were related to contaminated soil from the gasworks and which were referred to by Mr Pollock. There were a number of assertions made by R.A.T.W.I.S.E about the inherent risk of air emissions to human health from a prescribed waste facility such as Lyndhurst. We acknowledge that if waste is disposed of in an uncontrolled manner there are risks. The management of these risks is the reason why there are such stringent safeguards and operating procedures applicable to facilities like Lyndhurst, which are supported by monitoring programs to ensure compliance. This regime of protection is imposed by the EPA through the grant of licenses.

152 If there was any suggestion that SITA was failing to comply with its licence requirements or that there were unacceptable odours or air emissions from the Lyndhurst facility then the concerns of R.A.T.W.I.S.E might have more credibility. However, there is no evidence to this effect. We consider that whatever fears people may have regarding air quality, they are answered by the evidence before us and by the ongoing need for SITA to comply with its EPA licence.

153 Mr O'Keeffe, who is responsible for managing the operation of the Lyndhurst facility, gave evidence of the comprehensive procedures that are followed and in place to deal with emergencies or untoward events. We are satisfied that the Lyndhurst facility has good waste management practices in place.

154 We are satisfied that whilst there have been incidents of odour in the past, measures have been instituted to address them and these have been effective. As previously discussed, we are satisfied that the buffer distances that exist are adequate to cope with untoward events.

155 Overall, we accept the evidence as given and find that disposing of prescribed industrial waste at the Lyndhurst facility will not normally result in offensive odours or pose a risk to human health by way of emissions to air. We are satisfied that SEPP Air Quality Management will be complied with.

[107]

156 SITA called evidence from Mr Roger Parker with respect to the potential contamination of groundwater caused by placing prescribed industrial waste on the land. It was Mr Parker's evidence that on the basis of the Environmental Audit reports with respect to the subject site and available groundwater monitoring data, both of which are requirements of the EPA license, that there was no indication of significant impact on groundwater quality surrounding the landfill. He acknowledged that increased salinity had been measured in a number of groundwater monitoring bores. It was his contention however that these increases were in all probability the result of natural causes. He informed us that of the four bores where high salinity was observed, one was back to normal and one had dropped off significantly.

157 Low levels of chloro-organics were found in two of the high salinity bores. There were however no other land fill indicators associated with these elevated values. It was Mr Parker's view that the levels detected were probably the result of surface infiltration from the leachate ponds, which the applicant has addressed by re-lining the ponds. It must also be accepted that these impacts could well be associated with leachate from deposited putrescible waste consistent with the planning approval for the facility.

158 We accept Mr Parker's evidence as given and find there has been no negative impact on groundwater quality from the placing of prescribed industrial waste on this site. We also accept Mr Parkers' evidence that the chemical analysis of groundwater quality in the aquifer located beneath the subject land falls within Segment B as specified in SEPP Groundwaters of Victoria, where the relevant beneficial uses are the protection of ecosystems, stock watering, primary contact for recreational purposes and industrial. We consider a greater degree of caution would need to apply to protect a potable ground water supply but find the cell design and its demonstrated efficacy in protecting ground water quality within Segment B are sufficient to meet the beneficial use requirements of SEPP Groundwaters of Victoria.[35]

[121]

176 The Category B material received by the Lyndhurst facility is individually identified in the EPA licence and is required to meet certain defined requirements prior to being accepted into the site. The procedures in place to ensure the requirements are met are outlined in the expert evidence report of Mr O'Keefe and will not be repeated in full here. Suffice to say they include pre-acceptance analysis in a laboratory certified by the National Association of Testing authorities (NATA), provision of a representative sample prior to receipt of load transport documentation and the taking of samples at time of acceptance to compare with prior sample according to set procedures. We are satisfied that the procedures in place are such as to ensure compliance with licence conditions.

177 The Lyndhurst facility is highly engineered to ensure emissions to air and water are reduced to the minimum extent possible with present technology. No evidence was provided to the Tribunal of contamination to groundwater as a result of infiltration of material associated with the placing of Category B prescribed industrial waste in this landfill nor of an emission to air other than the odour emissions from gaswork soils, which have already been addressed, that would pose a threat to human health. We are therefore of the view that the Lyndhurst facility, which it must be acknowledged has been accepting prescribed industrial waste for some 16 years, is an effective containment facility. We find the placing of Category B material on this site as controlled by the existing EPA licence is not inconsistent with policy. We acknowledge the location of the facility is not ideal in terms of the Hazardous Waste Consultative Committee Report. However, as previously noted, this is a highly aspirational document and does not represent adopted Government policy. We find that greater weight should be given to the need for a containment facility for Category B and C prescribed industrial wastes. In the absence of any alternative facility, the planning permits should be amended to enable the activities at present carried out on site to continue.

178 In coming to the above conclusion we acknowledge the concerns of R.A.T.W.I.S.E and some local residents[37] but find their views are not founded on any evidential material. Whilst the landfill may be considered not the most desirable of neighbours, we consider the risk posed to local residents from this facility is minimal. We note in this regard that although the materials placed in the facility were found by the Tribunal in the declaration proceeding to be "hazardous" within the meaning of the common usage of the word, because of the strict requirements on the condition of these materials received at the facility and their handling and treatment, in fact they do not constitute a hazard.

[122]

179 Apart from SITA, the EPA, the Minister for Planning and Greater Dandenong City Council, the only other submissions made in response to the advertisement of this application were from R.A.T.W.I.S.E and Ms Jani Breider (who did not appear at the hearing). We have already dealt with the issues we consider of greatest relevance to this application. The following comments are made about other issues raised and the submission by R.A.T.W.I.S.E in particular.

180 The submissions by R.A.T.W.I.S.E (Residents Against Toxic Waste in the South East) raised a number of issues that parallelled those raised by the council. In particular they supported the council's view that the Tribunal should view the application as if it were a new application for the placing of prescribed waste on the site. It was their submission that such an examination of the proposal as a new application would clearly show it was inconsistent with policy specifically the Industrial Waste Management Policy (Prescribed Industrial Wastes) and the Waste management Policy (Siting and Management of Landfills). They also regard the Hazardous Waste Consultative Committee Report as a policy document. These matters have already been dealt with earlier in this determination.

181 The other issues raised by R.A.T.W.I.S.E related to perceived and potential health effects associated with depositing prescribed industrial waste on this site. The only support they provided to the Tribunal was an article from the Lancet and a number of newspaper articles relating to mysterious illnesses of workers at the tip and of a local market gardener.

182 We find with respect to the Lancet article and other overseas reports referred to by R.A.T.W.I.S.E that no parallels can be deduced with respect to the operation of Lyndhurst in the absence of precise information about the operation and nature of materials accepted in the overseas facilities cited in the studies. We further find that in circumstances where no specific reasons were found for the illness of workers at the tip and the local farmer, the cause of the illnesses experienced by them is speculative. With respect to health matters we accept that R.A.T.W.I.S.E has a high level of concern. It is our view however that this concern is unwarranted. Further, it is clear from documentation provided to us that R.A.T.W.I.S.E members have gone to some trouble to raise the level of apprehension about the Lyndhurst facility within the community, particularly in the nearby Lynbrook Estate and for parents of children at the Lynbrook school. This build up of concern can result in people attributing any unexplained health matters to the facility.

183 R.A.T.W.I.S.E raised issues with respect to the safety of food grown at the market gardens adjoining the site, although they acknowledged that this was ultimately to become an industrial area and there was very little market gardening remaining. These concerns have been raised previously to this application and there has been found to be no substance in them

184 Photographs of flooding that has occurred in the vicinity of the site were produced. We are satisfied that this flooding was confined and prevented from entering the landfill via the bunding provided around it.

185 In light of the evidence already presented with respect to the air quality in the vicinity of the tip we have no concerns with respect to the health of workers in the vicinity. Issues raised regarding the bakery on the nearby industrial estate have been dealt with previously. In any event, we consider there would be measures in place at this or any bakery to ensure that air entering the premises was filtered to exclude dust.

186 The Tribunal was also provided with a number of photographs and newspaper articles which it was alleged illustrated the failure of management systems at the landfill. We have no way of knowing whether these incidents were associated with the putrescible waste aspect of the operation of the site, the prescribed industrial waste activity or indeed were associated with the facility in any way. We place no weight upon them. We do however find from the information provided to us that SITA has always addressed complaints in a timely manner.

At a glance

Court

Decision date

Source

Judgment (161 paragraphs)

SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156 (5 February 2007)

Parties

Cases Cited (1)