Victorian Civil and Administrative Tribunal|2004-04-06

Skye Environmental Services Pty Ltd v Frankston CC [2004] VCAT 682 (6 April 2004)

Crown Allotments 31A, 33A and 33C Harold Road, Skye

Wednesday 26 November to Friday 5 December and Monday 22 and Tuesday 23 December 2003

1. In application for review No P277/2003 the decision of the Responsible Authority is affirmed and it is directed that no works approval shall issue.

2. In application for review No P869/2003 it is directed that no permit shall issue.

Mr C. Canavan, QC and Mr C. Townshend of Counsel, instructed by Deacons

For Responsible Authority - Environment Protection Authority

Mr Brian Dennis of Counsel, assisted by Mr Henry Jackson, Solicitor to the EPA

Ms Adeline Lane of Maddocks Ms S. Vaughan of Maddocks appeared for Frankston City Council on Day 7

The following witnesses were called by the parties:

For the Applicant for Review in P277/2003 & P869/2003:

* Mr Stephen Hancock of URS Australia Pty Ltd, assisted by Mr David Ife;

* Mr Martin Aylward of Aylward and Associates; and

* Mr Allan Wyatt of Environmental Resources Management Australia;

The following witness report was also provided but the party were not called:

* Mr Robert Amaral, Consulting Geo-technical Landfill Engineer;

* Ms Jenny Pickles, Manager Australia GM Performance Eco Recycle Victoria; and

* Mr Terry Flynn, Principal Officer, Water Resources Management, Southern Rural Water

Mr O.P. Marsh, Mr Ray Matthews, Ms Monica Bladier and Mr David Schult.

The tabling of these reports was accepted by the applicant with a reservation with respect to the alleged contraventions on the part of Skye Environmental Services with respect to existing permits.

The expert witness report of Mr Colin McIntosh, Environmental Engineer with the Environment Protection Authority was tabled in part. Mr McIntosh was not called or cross-examined.

The EPA sought to call Mr Stewart McConnell, Principal Environment Auditor of the EPA as to the results of recent tests auditing other landfills. Mr Canavan objected to this evidence and this witness was not called.

The Tribunal has inspected the appeal site and surrounding area.

Due to a communication mix up, the EPA did not receive notification of the date and time of inspection and were not initially present. Mr McIntosh was contacted and was able to attend the site two hours later. During that time the Tribunal made an unaccompanied inspection of the surrounding area. Mr French was present at the site at the time set for the inspection. Mr Horsfall advised Mr French of the agreement that he personally should not be present at the inspection. Mr French agreed and left the site. During the inspection the only discussions which took place between the Tribunal and any party as to the operation of the site were in the presence of Mr McIntosh and Mr Ife.

1 Application No. P869/2003 is an application under Section 79 of the Planning and Environment Act 1987 to review the failure of the City of Frankston to determine Application for Permit No. 01026 within the prescribed time.

2 Application No. P277/2003 in application for review of a decision made by the Environment Protection Authority under the provisions of Section 20C(3)(a) of the Environment Protection Act 1970 to refuse to issue a works approval in Application No. WA4691.

* Order of presentation. The agreed order was that Mr Dennis made an initial presentation of the EPA's grounds and case, Ms Lane then presented the Council's submissions on both applications, and then followed the Applicant's case and the EPA's case. Some variations in order occurred to suit the convenience of witnesses and the parties and to deal with points arising in running.

* Works Approval Draft Conditions. At the commencement of the hearing, Mr Canavan drew the Tribunal's attention to the EPA not having provided draft works approval conditions.. Mr Dennis opposed their production on the basis that Planning Practice Note 1 did not oblige the EPA to produce them and as the EPA opposed the grant absolutely. Whilst Mr Dennis was correct in his submission on the Practice Note, we took the view that the application could not be satisfactorily considered unless draft works approval conditions were before us, as a decision one way or the other in this kind of case is inextricably intertwined with a consideration of conditions. Directions were given that the EPA provide draft conditions and they were subsequently provided on the usual without prejudice basis

* Objection to the Draft Waste Management Plan and the EPA" amendment of its grounds. The EPA informed the applicant by letter of 4 February 2003 of its refusal of the application. At a directions hearing before Senior Member Byard on 11 April 2003, orders made required the EPA to clarify its grounds of refusal or give written advice of the terms of its grounds of refusal that it would rely on at the hearing. The EPA subsequently informed us that it intended to rely on the following grounds:

1. That the works approval applied for, if granted, would be contrary to and inconsistent with State Environment Protection Policy;

2. That the works approval applied for, if granted, would be contrary to and inconsistent with the Best Practice Environmental Management Siting Design, Operation and Rehabilitation of Landfills, October 2001 (EPA Publication 788);

3. That the works approval applied for, if granted, would be likely to cause, or contribute to, pollution; and

4. That the need or otherwise for the proposed landfill is a relevant consideration. The Authority is satisfied that there is no current need for the proposed landfill the subject of the works approval applied for.

Following the applicant indicating it would object to the EPA relying on the Draft Waste Management Policy (Siting, Design and Management of Landfills), on Day 1, of the hearing additional grounds were added with the Tribunal's leave:

5. That the proposed landfill will, if approved, be sited in an area where an aquifer contains Segment A groundwater contrary to Clause 13(3) of EPA Publication 921, Draft Waste Management Policy (Siting, Design and Management of Landfills).

6. That there is insufficient information provided by the applicant to allow a proper assessment of the application.

4 The Tribunal adopts the description of the site and surrounding area provided by Ms Lane on behalf of the City of Frankston:

The land the subject of the proceedings before the Tribunal comprises Lots 1 and 2 of LP 146228 Harold Road and Lot 4 of LP 117269 Ballarto Road, Skye, known as 60 Harold Road, 65 Harold Road and 500 Ballarto Road, Skye (respectively) (Land).

The land is irregular in shape, but generally takes the form of:

* a generally square shaped lot with frontage to Ballarto Road to the north and Harold Road to the west, out of which a relatively small parcel in the north-east (taking up the south-western corner of Ballarto and Harold Road), is excised; and

* a rectangular shaped lot the south of the southern-most extent of Harold Road, at an angle to the south east of the square lot referred to above.

The current use of the land is that of a quarry - sand and sandstone extraction. This operation entails sand extraction and washing, sand sorting, storage, and water collection dams.

The land is located within the south-eastern most extent of Skye, abutting (further to the south) Langwarrin.

The majority of the land area of Skye is north of Ballarto Road, while the majority of Langwarrin is south of Ballarto Road.

The land is just east of the eastern extent of the Frankston urban area, some 7.5 kilometres east of the Frankston Centre.

The land area contained by Ballarto Road (to the north), Western Port Highway (to the east), North Road (to the south) and McClelland Drive (to the west) exhibits two principal characters in differing areas, residential and rural.

Housing estates form a corridor to the north and south, divided by Cranbourne-Frankston Road. To the south-west of the land and further south of Cranbourne-Frankston Road, subdivisions at conventional suburban density are developing.

Within the northern-western portion of the identified land area are a number of sand quarrying operations, and Frankston's only land fill at 75 Quarry Road, Langwarrin (a former sand quarry). The other five sand quarries within the municipality (apart from that on the land) follow a roughly north-south corridor along Quarry Road, Langwarrin.

Topographically, the identified area comprises a series of parallel sandy ridges and an attractive undulating landscape with areas of remnant vegetation and tree cover. These ridges comprise tertiary/ quaternary sand and gravel deposits that were formed on the windward side of underlying basement material by the prevailing south-west winds. Sand thickness of up to 30 metres occurred at the crest of major dunes grading to thin dune sheets. As has been previously stated, much of this dune area is now used for the sand extraction (being the land, together with large land areas to the west). Many of these pits are close to the end of their operating life.

The more immediate locality of the land reveals a variety of other land uses including:

To the east of the land are a number of rural/residential properties and a poultry farm. To the north-west of the land are a number of rural/ residential properties and at the fringe of the Carrum Downs urban area, is the Skye Primary School (located on Ballarto Road approximately 1.5 kilometres west of the land).

5 To the south-west of the subject site is a 101.5 hectare block of land which is also being used in part for sand extraction (Burdett site). The Responsible Authority had proposed a re-zoning of this land to allow a residential development to occur. The proposed amendment, Amendment C7 was advertised and a Panel hearing undertaken. At this stage the Panel has reported back to the Responsible Authority. The Panel's recommendations are that the residential proposal was an unnecessary intrusion into the Green Wedge and their recommendation was that the amendment be abandoned. The Responsible Authority subsequently adopted the amendment being of the view that the retention and protection of valuable remnant vegetation on the Burdett site necessitated a viable use for the balance of the site. The Tribunal was informed just one week prior to the hearing the Responsible Authority again considered the amendment and resolved to continue to support it. It is however noted that the amendment has lapsed because the Council did not adopt it within two years of exhibition as required by Planning and Environment Act Section 30(1). The Tribunal was informed at the hearing that the Minister had declined to accept a residential amendment of this land within the Green Wedge.

6 There is at present a solid, inert landfill operation within the City of Frankston at 75 Quarry Road, Langwarrin. This landfill operates under a permit which limits its operating hours to 7.00 a.m to 5.00 p.m. Monday to Friday and 9.00 a.m. to 5.00 p.m. on Saturdays together with a number of amenity conditions. The original permit allowed the use of the landfill up until 17 February 2004, however the Responsible Authority has recently extended the permit for a further eight years. This land is specifically referred to in the Planning Scheme as having a medium term potential for housing development.

7 Ballarto Road which forms a partial boundary to the site is a two lane primary arterial road carrying in the order of 700 vehicles per peak hour and some 7,000 vehicles per day based on a survey undertaken in November 2003. The evidence provided to the Tribunal was that the road was currently operating well within its capacity. Further, a Cranbourne Traffic Strategy (VicRoads 1993) identifies Ballarto Road as having strategic importance in linking the South Gippsland Highway and the Dandenong-Hastings Road and foreshadows that in the long-term a four lane divided highway will be required.

8 The Tribunal was informed by Ms Partenio that VicRoads' advice was that the road widening would take place on its southern side along the site's main frontage but that this widening would not occur for at least another two years.

9 Harold Road which provides access to the quarry is a two-way local gravel road with a carriageway width between 8 and 10m and a capacity of some 500 vehicles per day. As well as providing access to the quarry the road provides access to two small rural properties. The road is some 600m in length and terminates at the entrance to the subject site. The Tribunal was informed that Skye Environmental, the permit applicant, currently undertakes regular maintenance activities on the road, although the road technically is a Council road.

10 Some works have been carried out at the intersection of Harold Road with Ballarto Road by way of widening Ballarto Road slightly to provide a short left hand turn lane and to provide for passing of a vehicle seeking a right hand turn into Harold Road.

11 The proposal is for the use of the site for the purpose of a landfill for solid and inert waste together with an ancillary transfer station. There was some concern expressed on the part of the City of Frankston and EPA that several aspects of the proposal had changed since the original application was placed. It was particularly the view of the EPA reflected in the additional grounds provided to the Tribunal on the 27th of November 2003 that the information provided was insufficient to allow a proposal assessment of the application. These deficiencies were outlined by Mr Dennis on behalf of the Environment Protection Authority in his opening submissions and were addressed by Mr Hancock under cross-examination by Mr Canavan subsequent to the giving of his evidence.

12 It appears to the Tribunal that the design of the landfill has been an evolving process that required adjustments as more information became available about the site. In addition some of the changes in the design particularly with respect to a chimney and sub-base drainage were incorporated in the proposal in response to the EPA's requirements.

13 Broadly speaking the proposal is for landfill initially to be undertaken in the northern part of the site in four distinct stages. The total air space available for these four stages is some 10 million cubic metres including cover material with the maximum air space available being some 26 million cubic metres over the next 26 years as the sand mine reaches the end of its life. Details of the depth of sand within the site and the location of the bedrock remain uncertain, however it was the applicant's contention that they would fill from a base of 10m AHD and that if excavation of sand occurs below this level then back-filling would take place to contain tipping above that level. As a consequence the clay liner proposed may well be partly on rock and partly on sand. Estimated filling time for the first four stages is some 35 years with no figure being put on the final stages at this point in time.

14 The waste handling facility proposed is to be located on the eastern side of the northern section of the site adjacent to Stages 3 and 4. The facility will separate waste products for on-sale to other users or for storage on site. This facility will be located on a compacted gravel base and zoned according to material type as well as including areas where mixed loads can be sorted. The materials that potentially will be recycled include glass, paper, plastic, aluminium, tyres, metals, concrete and brick, timber, plaster and possibly soil. Any mulch or green waste that comes to the site is intended to be transferred to a nearby compost operation at Burdett. Further details of the operation of the recycling area and the recovery processes used for recyclable materials are contained in Mr Hancock's report and will not be repeated here. Mr Hancock acknowledged that mixed loads could potentially be a problem in that the sorting such loads is labour intensive with very little potential benefit.

15 The landfill design includes a sub-base which must be such as to ensure no differential settlement will occur. In addition sub-liner and chimney drains will be incorporated in the design to control any seepage from the bedrock aquifer below the base of the clay liner. The liners proposed are to be 1m of compacted clay with a permeability of no greater than 1 x 10-9 m/sec. The walls of the pit are also intended to be lined with clay of a thickness of not less than 1m and of the same permeability. Leachate draining from the waste placed in the landfill will be collected in a number of leachate collection lines installed at 25m intervals located in shallow trenches within the underlining clay liner. Leachate will be directed to a leachate collection sump and subsequently directed to a leachate storage tank.

16 The perimeter of the landfill is surrounded by compacted clay retaining walls up to 10m thick with a slope between 1 to 1 and 1 to 2. The western perimeter wall for Cell 1 has already been installed to stabilise the bank as part of the pit rehabilitation procedure. Stage 1 will be filled in four stages and each of these stages will have an interim capping to minimise leachate production. Final capping of the cell will be formed and graded with an approximate slope of 1 in 20 to increase surface water run-off and thereby reduce leachate production as a consequence of any filtration into the cell.

17 Leachate generation in the landfill occurs as a result of the infiltration of rainfall, the decomposition of putrescible wastes, if present, inflows of surface water from run-off, inflows of ground water and infiltration of irrigation water. Leachate flows from the landfill once the water holding capacity of the soil or fill material is exceeded. The applicant expects that the leachate generated from solid and inert waste will be relatively benign with the salinity varying from 2,000 to 4,000 milligrams per litre total dissolved solids. A number of measures are intended to be taken to minimise leachate production. These measures are standard practice and are set out in detail in Mr Hancock's report.

18 The applicant modelled a number of scenarios for leachate production. The result of these calculations for the proposed design with the de-watering regime in place on the site as a result of the sandmining was some 0.8 m3 per day less than the best practice environmental management guidelines of 1m3 per hectare. The applicant's contention was that once de-watering ceases at the completion of the sand mining any degradation of the potential beneficial use of groundwater could not occur until rebound of the natural groundwater level occurs. It was held that the potential for leachate to impact upon groundwater after recovery of water levels in some 80 years would be limited, the reason being that leachate generated during the operational phases of the tip would have largely been removed by the leachate drainage system. Further the take-up capacity of the clay liners by way of ion exchange and absorption and of the base below the liner, which would further mitigate any impacts upon beneficial uses. It was contended that of the low hydraulic gradients expected to apply within the local geological formation would result in a dilution of 1 to 4,000 of any leachate that permeates the tip liner.

19 Works are also proposed to improve the drainage of water around the site, in particular, to ensure the eastern and western perimeter drains are sufficient to deal with a 1 in 100 year storm event. Settling and retarding basins will be constructed on both the eastern and western drainage lines to ensure that the peak discharge from the site will equal the pre-development discharge for a 1 in 100 year rainfall event. Measures will be taken on site to address potential erosion issues, limiting stockpile sizes, maintaining batter gradients at no greater than 1 to 2, using sediment controls, vegetating drains and batters.

20 The Tribunal was informed the major source of odour in inert landfill sites was associated with the dumping of plaster materials and that these would be as far as possible recycled on the site. Screening of the site will be carried out by way of additional planting as well as placing earth moulding along the western boundary of the northern portion of the site and minimising the extent of bare ground exposed by way of keeping the tipping services small and carrying out rehabilitation measures in stages as soon as sections of the site have been filled. Dust suppression will take place by way of spraying exposed areas, including the tipping face and access roadway. A washer is intended to be placed near the exit to the site with water from it being directed to the leachate collection dam.

21 The planning controls that apply to the planning permit application are contained within the Frankston Planning Scheme. The land lies within a Special Use Zone Schedule 2 (Extractive Industry) which has as its purposes:

* To recognise or provide for the use and development of land for extracted industry.

* To encourage interim use of the land compatible with the use and development of nearby land.

* To encourage land management practice and rehabilitation that minimises adverse impact on the use and development of nearby land.

22 A permit is required for any use in Section 2 of the Schedule to the zone under the provisions of Clause 37.01-1. The following are Section 2 uses within the zone:

* Mineral stone or soil extraction (other than mineral exploration, mining and search for stone).

23 Refuse disposal is defined in the Planning Scheme as land used to dispose of refuse by landfill, incineration or other means and refuse transfer station is land used to collect, temporarily store and process refuse or use or scrap materials for disposal or use elsewhere.

24 Under the provisions of the zone (Clause 37.01-2) a permit is also required to construct a building or construct or carry out any works unless the schedule to the zone specifies otherwise. A permit is required in the present circumstances.

25 The land is also affected by a Public Acquisition Overlay Schedule 1 for the proposed widening of Ballarto Road.

26 The subject land lies within a Green Wedge Zone. Clause 57 of the Planning Scheme contains core planning provisions for metropolitan green wedge land. A number of uses are prohibited in the zone, however refuse and refuse transfer station are not among them. Materials recycling is listed as being prohibited except when used in conjunction with a refuse transfer station.

27 State and Local Planning Policy is relevant to assessing the proposed development application. The State Planning Policy Framework at Clause 11.03-4 with respect to infrastructure states that:

Planning for developing of urban physical and community infrastructure should enable it to be provided in a way that is efficient, equitable, accessible and timely.

28 Clause 11.03-2 with respect to the environment states that planning should:

Adopt best practice environmental management and risk management approach, which aims to avoid or minimise environmental degradation and hazards.

29 Clause 15 covers a range of environmental issues. Specifically of relevance to the present proposal are: Protection of catchments, Waterways and groundwater, Noise abatement, Air quality, Soil contamination and Conservation on native flora and fauna.

30 Clause 18.10 identifies the following specific objective with respect to waste management:

To assist control of the generation, transportation and disposal of wastes so as to prevent pollution and land degradation.

and further with respect to implementing this objective states:

The siting and management of waste disposal facilities must be in accordance with State Environment Protection Policy (Siting and Management of Land Fills Receiving Municipal Waste) and relevant regional waste management plans.

31 The Local Planning Policy Framework at Clause 21.02 under Extractive Industry states that:

Extractive industry provides regionally significant resources for the building industry. Extractive operations have adverse off-site effects and there is a need to maintain adequate separation between this extractive industry and sensitive uses, such as housing, for the benefit of both. A number of extractive sites have an estimated resource life of up to 30 years. Some sites have been identified as having potential for retail landfill and some have also been identified as future open space. It is important to ensure that these options are maintained and that extractive sites are protected from encroachment by inappropriate developments.

Other factors that will influence the future form of development in Frankston city are:

* There will be pressure to convert worked out sand pits to alternative uses.

33 The Strategic Land Use Framework Plan at Clause 21.03-2 states:

The purpose of the plan is to identify locations where specific land use outcomes will be supported and promoted.

34 One of the strategic directions identified in the Strategic Land Use Framework Plan is that:

Extractive industry and land fill are significant transitory uses that require sensitive management and the end use of those sites needs to be investigated.

35 Clause 21.10 of the MSS deals with extractive industry and notes the importance of the regionally significant sand resource within the Cranbourne Langwarrin area as being the most important source of fine sand and a major source of concrete (coarse) sand in the Melbourne region. The clause also recognises that:

Most deep pits have been identified as potential regional landfill sites.

36 A number of the key issues are identified at Clause 21.10-2 including:

* The need to protect extractive and potential landfill sites from encroachment by housing.

* The need to determine appropriate methods of reclamation and after use and the difficulty in doing that given the long resource life of some sites.

Identify sites where landfill is the most appropriate rehabilitation method and maintain opportunities to utilise that method.

38 Clause 21.10 is followed by a plan mapping extractive industry areas. The land incorporating the subject site is identified in three ways. The northern portion of the land at 500 Ballarto Road is identified as a future pit. The southern portion of the land is marked as an extractive industry zone and the land south of the end of Harold Road is marked as a potential regional landfill.

39 There is in addition a local policy specifically related to the protection of potential future landfill sites at Clause 22.14. This policy makes specific reference to the subject site and states as background information that the six extractive industry sites which are the subject of this policy have been recognised as potential future landfill sites in the report entitled Forward Planning for Potential Landfill Sites in the Cranbourne/Frankston Area 1995. The clause states the following as policy:

* Appropriate separation distances be maintained between the six extractive industry sites which have been identified as potentially suitable for future landfills and incompatible adjacent use and development. This is to be achieved by maintaining adjacent land in a non-urban zone and ensuring that land uses which are potentially sensitive to landfills receiving solid wastes are located outside recommended buffer distances.

* Potential future uses of landfill sites be identified prior to the completion of filling operations and the sites be rehabilitated to a standard which is suitable for the future use.

40 Clause 22.15 of the Frankston Planning Scheme comprises the South-Eastern Non-urban Area Policy. This policy applies to land in the southeast green wedge and includes the subject land. Among the objectives of the policy are:

* To protect the economic and operational viability of key industries and infrastructure in the area, including extractive industries and the Eastern Treatment Plant.

* To protect and enhance environmental values, including wetlands, flora and fauna, habitats and hydraulic functions.

* To protect the Port Phillip and Westernport Catchments.

* To protect and develop the scenic and landscape values of the non-urban area.

41 Melbourne 2030 at Direction 7 (draft Clause 12.05-7 of the State Planning Policy Framework) include the following:

* Ensure that water resources are managed in a sustainable way.

* Reduce the amount of waste generated and encourage increased re-use and recycling of waste material by:

s Providing sufficient waste management facilities to promote recycling.

s Encouraging waste generators and businesses that use or recycle waste to locate near each other.

s Ensuring buffers for waste management facilities are protected and maintained.

* Protect groundwater and land resources by (among other things):

s Encouraging the siting, design, operation and rehabilitation of landfill to reduce impact on groundwater and surface water.

42 The document Forward Planning for Potential Landfill Sites in the Cranbourne/Frankston Area 1995 is a reference document in the Planning Scheme as are the State Environment Protection Policy (Siting and Management of Landfills Receiving Municipal Wastes) and the South-Eastern Regional Waste Management Strategy Plan.

43 Forward Planning for Potential Landfill Sites in the Cranbourne/ Frankston Area 1995 states in relation to the subject site:

The site is located within a rural area, has a large amount of potential void space and has no major environmental constraints. The site does, however have a number of existing houses in close proximity (within 200m) especially in Lippards Road to the east. The location of these existing houses should be carefully considered when approving an area for tipping of putrescible wastes.

44 The South-Eastern Regional Waste Management Strategy Plan was approved by the EPA in June 1999 and amended November 2002. The November 2002 draft adopts the following principles:

A maximum of two putrescible and two inert landfill sites operating within each sub-region.

A three year buffer (of available tipping space) to adequately plan for future landfill sites.

45 The subject site is identified in the Plan as Site No. 12 and identified as a potential tipping site.

46 The provisions of the Planning and Environment Act 1987 Section 84B(1)(d) also require the Tribunal to take into account and give effect to any relevant State Environment Protection Policy declared in any order made by the Governor-in-Counsel under the Environment Protection Act 1970 Section 16. This requirement makes the State Environment Protection Policy Groundwaters of Victoria 17 December 1997 (Groundwater SEPP) a relevant document for consideration with respect to the planning appeal. The policy goal and principles of the Groundwater SEPP are contained at Section 5 and state as follows:

(1) The goal of this policy is to maintain and where necessary improve groundwater quality sufficient to protect existing and potential beneficial uses of groundwaters throughout Victoria.

(2) The principles upon which the policy is based are:

(a) groundwater is an undervalued resource and all Victorians share the responsibility to protect groundwater;

(b) the protection of groundwater and aquifers is fundamental to the protection of the environmental quality of surface waters;

(c) groundwater and aquifers should be protected to the greatest extent practicable from serious or irreversible damage arising from human activity; and

(d) the principles of environmental policy in the InterGovernmental Agreement on the Environment, including -

(i) polluter pays: those who generate pollution and waste should bear the cost of containment, avoidance or abatement;

(ii) intergenerational equity: the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations; and

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

47 The beneficial uses to be protected depend on the underlying quality of the groundwater segments based on the total dissolved solid (TDS) content. The two segments of most relevance to the development site are A1 with a TDS range of 0 to 500 mg/L and A2 with a TDS range of 501 to 1000 mg/L where the beneficial uses include potable water supply (Clause 9(1) and Table 2). Clause 9(4) extends the beneficial use (potable water acceptable) to groundwater of 1,001 to 1,500 mg/L TDS where that beneficial use exists at the date of publication of the policy. The specified beneficial use does not apply to groundwater where among other things it is the opinion of the Authority the background level of a water quality indicator other than TDS may be detrimental to the beneficial use (Clause 9(2) and Table 3).

48 The State Environment Protection Policy (Site and Management of Landfills Receiving Municipal Waste) of 5 July 1991 (Landfill SEPP) is a reference document in the Frankston Planning Scheme. Policy goals of the Landfill SEPP are:

....to protect existing and anticipated beneficial uses of segments of the air environment, surface waters and groundwaters and protect the residents and the environment from off-site effects arising from landfills receiving municipal wastes and to promote waste minimisation and resource recovery.

49 The beneficial uses identified in the policy include with respect to groundwater, potable water where the TDS is less than 1,500 ml/L. The beneficial uses for other purposes, such as irrigation, refer to other standards, indicators and objectives of the Landfill SEPP (Clauses 6, 7 & 8 and Table 1). Clause 7 of the Landfill SEPP provides that the clauses of this policy relating to the protection of groundwater shall not apply insofar as they are inconsistent with a SEPP dealing with groundwater, on or from the date in which it takes effect.

50 Clause 8 - Table 1 of the Landfill SEPP also contains indicators of objectives for groundwater over and above the total dissolved solids and for potable water states that, Nitrogen should not exceed the recommended National Health and Medical Research Council limit, toxicants should not exceed the values specified in Schedule 1 of the Recommended Water Quality Criteria, Environment Protection Authority Victoria (latest edition) and that pH should not vary outside the range of 5.5 to 8.5. In Clause 14 the Landfill SEPP directly refers to Regional Refuse Disposal Groups.

51 The controls and policies of relevance to the works approval application include those discussed in the above of relevance to the planning application, namely the Frankston Planning Scheme, the Landfill SEPP, the Groundwater SEPP and the Regional Waste Management Plan and the provisions of the Environment Protection Act 1970.

52 A number of other documents were relied on by the EPA in their case:

* The Best Practice Environmental Management Guideline, Siting, Design, Operation and Rehabilitation of Landfills - EPA Publication 788, October 2001 (Best Practice Guidelines)

* Draft Waste Management Policy (Siting, Design and Management of Landfills) - Publication 921, November 2003 (Draft 2003 Landfill SEPP);

* Towards Zero Waste A Solid Industrial Waste Management Plan for Victoria published by Eco Recycle Victoria, June 2003; and

* Towards Zero Waste a Materials Efficiency Strategy for Victoria draft for consultation published by Eco Recycle, March 2003.

53 The question argued is what weight can be put on each of these documents in consideration of the planning application and works approval application respectively.

* Lyndale and Black Pty Ltd & I O Black v MMBW [1983] 7 APAD 470, and

* Australian Aluminium Shop Fitters and Glazing Contractors Pty Ltd v City of Fitzroy

* Coty (England) Pty Ltd v Sydney City Council [1957] 2 LGRA 117

* Keays v Golden Plains Shire Council [2002] VCAT 93 (27 February 2002) [1.2] and

* O'Connell Street Developments Pty Ltd v Yarra City Council, Minister for Planning and Others [2003] 13 VPR 247 [58].

55 In relation to planning matters we take the view that the power of the Tribunal to consider documents is wider than in the consideration of the works approval application under the Environment Protection Act 1970.

56 In planning matters the Tribunal has the benefit of Planning and Environment Act 1987 Section 60(1)(b)(ii) and (iv). The ability of the Responsible Authority to consider if the circumstances appear to so require any other relevant matter conferred by these provisions entitles the Tribunal to consider the documents listed above subject to determining the weight to be given to them. Also Section 84B(1) of that Act lists the matters the Tribunal may take into account in relation to a planning appeal, which we consider are in addition to those in Section 60.

57 The EPA urged on us that we should take into account all these documents under the principles of Lyndale and Black, Aluminium Shop Fitters and the Keays v Golden Plains decisions.

58 In Keays v Golden Plains the Tribunal decided that in a works approval application a draft SEPP could be taken into account. The Tribunal adopted the principal that the weight to be given to the draft set would depend on the degree of its development in to an adopted policy and the degree to which expert evidence indicated that the draft provided a more satisfactory policy than the current policy.

59 However we note that from Planning and Environment Act 1987 Section 84(1) distinguishes in paragraph (f) and (d) between amendments to planning schemes which have not been adopted by the planning authority on the one hand and any relevant SEPP declared under Section 16 of the Environment Protection Act 1970.

60 Mr Townshend submitted that this excluded the Tribunal from taking into account a draft SEPP in relation to a planning matter, but our view is that under the power to consider any other relevant matter under Section 68(1)(b)(f), the Tribunal would have power to give consideration to a draft SEPP in a planning matter and the distinction in Section 84B should not preclude it from doing so, although the distinction may affect the weight given.

61 In considering draft policy as opposed to existing policy for both works approval and planning matters we adopt what was said in O'Connell Street Developments v Yarra City Council at [58]:

"The primary obligation of a Responsible Authority and the Tribunal in deciding on a permit application is to apply the existing law, being the appropriate legislation of the planning scheme currently in force, and whilst it is desirable that discretion be exercised in a way that does not compromise the metropolitan strategy, until it is incorporated in the planning scheme, it should not be the basis for the approval of a proposal that is inconsistent with or contrary to the controls or policies of the existing planning scheme."

62 We note that under of Environment Protection Act 1970 Section 37A in determining an application for review the Tribunal must take into account a much more limited list of matters than it can take into account in a planning application, namely:

(a) take into account any relevant planing scheme; and

(b) where appropriate, have regard to any planning scheme or amendment adopted by a planning authority under the Planning and Environment Act 1987 but not as at the date the application is determined, approved by the Minister, and

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

(d) where appropriate, have regard to any agreement made under section 173 of the Planning and Environment Act 1987 affecting land the subject of the application.

63 Whilst there is no specific reference in this section to draft SEPP or any reference to other relevant matters, the provision is not expressed to be exhaustive and we adopt the Keays v Golden Plains decision as authority that the Tribunal can take into a draft SEPP. Likewise we consider that any other matter is found to be relevant could be taken into account. The comments in O'Connell at [58] are applicable as to draft policies are to be taken into account.

64 The Best Practice Guidelines likewise has relevance to the application with the proviso that in situations where there is conflict with statutory policy, the statutory policy has overriding weight.

65 The Draft 2003 Landfill SEPP is not an adopted policy or code. The Tribunal accepts that there is, and this was acknowledged by the applicant, a significant way to go before the policy has statutory force and replaces the current Landfill SEPP. The Tribunal accepts that significant changes could occur during this process. The Tribunal however does not find that the Draft 2003 Landfill SEPP is irrelevant to its considerations, but should be given a degree of weight consistent with its present status in interpreting and applying existing policy.

66 The applicant was willing to accept Towards Zero Waste June 2003 as a seriously entertained planning policy that could be given some weight except when it was inconsistent with existing law. We adopt the EPA's contention that it is a source of the most statistically up to date data with respect to composition of solid industrial waste and future estimates of the waste system and take it into account on this basis.

67 The proposed development requires planning approval as a specified Section 2 use under the provisions of Clause 37.01. A permit is also required to construct a building or carry out works unless an exemption applies in the Schedule to the clause. The available exemptions do not apply to the subject application.

68 The proposal also requires a works approval as a scheduled premises under the provisions of Section 19A of the Environment Protection Act. The City of Frankston is a referral authority in relation to the application for the works approval. The matter was referred to the Council by the EPA however no formal response was made by them.

69 The proceedings before the Tribunal with respect to the planning approval relate to the Council's failure to grant a permit within the prescribed time. The Council resolved subsequent to the application for review being made to the Tribunal for failure that had they been in a position to determine the permit application they would have resolved to refuse to grant a permit.

70 The planning application, Application No. 101026 was lodged with the Council on 23 July 2001. The application was advertised by:

* Displaying five enlarged public notices at the various access points to the land in Harold Road, Ballarto and Valley Road;

* Sending notice of the application to owners and occupiers of property within a 500 metre radius of the land; and

* Placing a public notice in the "Independent" newspaper on two occasions.

71 As a consequence of the advertising a total of 106 objections were received. The Council also referred the matter internally to their Transportation Engineer, Environmental Planner and Drainage Engineer. The Transportation Engineer did not object to the proposed development subject to requirements with respect to the upgrading of the left and right turn facilities from Ballarto Road to Harold Road and the surfacing of Harold Road. He also made comments with respect to the required wash-down facility. The Environmental Planner and Drainage Engineer stated that they were unable to provide a detailed response due to the inadequate level of documentation, which was submitted with the application.

72 External referrals were made to the following: the Environment Protection Authority, Department of Natural Resources and Environment, VicRoads, South-East Water, Melbourne Water, South-East Regional Waste Management Group and Southern Rural Water.

73 The Council also notified ESSO Australia as the beneficiary under an easement along the eastern boundary of the land, which carries a gas pipeline. The Council had considerable correspondence with the Environment Protection Authority. Ms Laine's submission noted that:

At times the EPA suggested through letters to the Council that the Authority in fact has no objection to the grant of a permit, albeit that this view is frequently qualified on the basis that the EPA considers it premature.

74 The Council relied to some extent on the grounds of refusal provided by the EPA in coming to the view that had the application for review not been submitted they would have refused to grant.

75 DNRE, VicRoads and South-East Water had no objection to the granting of a permit subject to conditions.

76 Melbourne Water also informed the Council by letter dated 17 April 2001 that they consented to the grant of a permit subject to conditions. Melbourne Water in a later letter to the EPA dated 16 April 2002 opposed the granting of a permit. In an even more recent letter of 18 March 2003 Melbourne Water advised that it now had no objection in principle to the land being used as a landfill provided certain issues were addressed.

77 Esso Australia submitted an objection, however it was the Council's view that the concerns of ESSO had since been dealt with.

78 The South-East Region Waste Management Group acknowledged the identification of the site on their Waste Management Plan as a future solid, inert landfill site and therefore in principle supported the granting of a permit. They did however suggest that there was a timing question under the Waste Management Plan, which indicted that there was no need for this site for many years.

79 Southern Rural Water's response to the Council was that their approval of the planning application would be contingent on the works approval details. They subsequently informed the EPA by letter dated 15 June 2001 that they objected to the grant of a works approval for the site.

80 A consultation meeting was held in February 2002 attended by the EPA, URS Pty Ltd Hydrologists, South-East Regional Waste Management Group representatives and 110 objectors and concerned residents. No resolution of objectors concerns was reached at that time. The Council subsequently took the view that the objectors' concerns were substantiated by those of a number of the referral authorities and resolved that had it been open to them they would have refused to issue a permit on the following grounds:

1. The proposal does not satisfy relevant objectives and implementation requirements of the State Planning Policy Framework (Clause 15 - Environment and Clause 18 - Infrastructure), Municipal Strategic Statement and Local Planning Policies (Clause 21.10 - Extractive Industry, Clause 22.14 - Protection and Potential Landfill Sites Policy and Clause 22.15 - South East Non-Urban Area Policy).

2. The proposal would have a detrimental impact on the amenity of adjoining and nearby properties, including adverse traffic affects and adverse environmental affects to the locality.

3. The works proposed for the proposed landfill would be contrary to and inconsistent with the Best Practice Environmental Management Siting, Design, Operation and Rehabilitation of Landfills, October 2001 (EPA Publication 788).

4. The proposed landfill would be likely to cause, or contribute to, pollution and not protect groundwater and aquifers in the locality to the greatest extent practicable from serious or irreversible damage and pollution of potable groundwater.

5. There is no current need for the proposed landfill.

6. The proposal is contrary to the orderly and proper planning of the locality.

81 The EPA received application for the works approval on 27 April 2001. The EPA advertised the proposal in accordance with the provisions of Section 19B(3) of the Environment Protection Act 1970 as follows:

The EPA received a letter of 15 April 2002 from Melbourne Water objecting to the proposal. A subsequent letter of 5 December 2002 indicates no objection subject to further information and conditions.

82 In addition an advertisement was published in the Herald Sun, the Frankston Standard and the Flyer notifying the broader community. Copies of the application were made available to the public on request. Some 57 objections from private individuals were received. A conference was held on 9 October 2001 to allow for public expression of views. Some 70 people attended this conference including the proponent and their consultants. The EPA subsequently gave notice of its refusal of the application by letter of 4 February 2003. We have referred above to the Directions Hearing and the EPA's amendment of its grounds.

83 It is the Tribunal's view after considering the submissions and evidence before it and visiting the appeal site that the questions to be addressed in this matter are:

* Does the proposal represent a risk of contamination of the groundwater aquifer?

* Can the risk be addressed in design and engineering details?

* Is the level of risk mitigated by the need and the advantages associated with the rehabilitation of the site?

The Tribunal is of the view that the issues in the planning appeal and the issues in the works approval appeal are both covered by the above questions and should be dealt with together.

Skye Environmental Services Pty Ltd v Frankston CC [2004] VCAT 682

At a glance

Court

Decision date

Source

Judgment (239 paragraphs)

Skye Environmental Services Pty Ltd v Frankston CC [2004] VCAT 682 (6 April 2004)

Parties

Legislation Cited (2)