The EPA has not made a decision on the application.

1. At the practice day hearing, Statewide advised that it proposes to upgrade the site at Panmure and in due course will make an application for a works approval. However, it emphasised that the application made to the EPA, which is the subject of this proceeding, was only an application to amend the licence and that no physical works are proposed. It claims that an error was made by the EPA when it amended the licence in 2014. All that this application purports to do is to reinstate the status quo with respect to the processing capacity of the site pre amendment.
2. Notwithstanding that Statewide only wishes to apply to amend the licence, not undertake any works, it says that the EPA required it to make an application for a works approval, which it did. It lodged an Application for Works Approval to Amend EPA Licence 74234, which was submitted to the EPA with accompanying documents on 2 February 2016 with a request for the EPA to prepare an invoice for the application fee so that it could be paid by EFT.
3. The application includes the following description of the proposal:

The proposal is to increase the composting capacity of the premises from 5,000 tonnes to 24,000 tonnes. This would result in changes to the licence preamble and licence condition WM1.3. The increase in capacity would allow the site to operate more efficiency and would ultimately result in the diversion of waste from landfill. This site is consistent with EPA Waste Hierarchy as it allows for an end reuse of valuable resources that would otherwise be difficult or impossible to recover.

This is seen as an administrative change. Licence condition WM1.3 reads "You must not treat more than 5,000 tonnes of waste on the premises over any 12 month period." This condition was incorporated during a recent licence amendment and was not agreed to by Statewide and was loosely based on historical information. We are applying for a change to the capacity to bring it into line with the actual operations at the site at the time of the amendment.

1. The EPA took the view that the information contained in the application was not adequate for it to accept the application. The EPA considers it did not receive a valid application for the purposes of section 19B(1) of the Environment Protection Act 1970 and accordingly was prevented from dealing with the purported application pursuant to section 19B(2) of the Act. That being the case, it says there can be no failure of the Authority to issue a works approval under section 19B of the Act for the purposes of a review under section 33(1) of the Act. More specifically, the Authority submits that the jurisdiction of the Tribunal under section 33(1) of the Environment Protection Act 1970 is not engaged. It says:

The Authority was prevented from dealing with the purported application by s 19B(2) of the EP Act by reason of the purported application not complying with s19B(1) of the EP Act.

The purported application did not comply with s19B(1) of the EP Act in that the purported application was not:

(a) made in accordance with a form and in a manner approved by the Authority.

(c) accompanied by such plans, specifications and other information and a summary thereof as may be required by the Authority within 21 days of receiving the initial application.

The Authority advised the Applicant, by email on 16 February 2016, that the application was unable to be accepted as the application did not address:

- separation distances from existing residential properties;

- demonstrated compliance with State Environmental Protection Policies and EPA Guidelines;

- EPA publication 1588 'Designing, constructing and operating composting facilities'.

The Applicant disagreed with EPA's assessment and did not submit any further information.

Accordingly, there has been no relevant decision of the Authority (including a failure to decide) to engage the jurisdiction of the Tribunal under s 33(1) of the EP Act.

1. Several issues arise with respect to this position by the EPA.
2. The first relates to the nature of the application for review. As previously noted, Statewide says this is an application to review the failure of the EPA to amend a licence pursuant to section 20A of the Environment Protection Act 1970. It is not an application to review the EPA's failure to issue a works approval. Statewide says that it does not need a works approval because it does not propose to undertake any works. Under section 20A of the Act, the holder of a licence issued under section 20 may apply in writing to the authority for the amendment of the licence by revocation or amendment of any conditions to which the licence is subject. Section 20A goes on to provide as follows:

(2) An application for the amendment of a licence under this section shall be -

(a) made in accordance with a form and in a manner approved by the Authority;

(c) accompanied by such plans, specifications and other information and a summary thereof as may be required by the Authority within 21 days of receiving the initial application.

(3) The Authority shall not deal with an application under this section which -

(b) except as provided in subsection (5C) relates to a matter in respect of which -

(i) a works approval has been obtained and, in the opinion of the Authority, the works have not been satisfactorily completed in accordance with that works approval; or

(ii) a works approval is required to be obtained and has not been obtained and the works have not been completed or substantially completed -

(4) Where the Authority receives an application under this section which relates to a matter in respect of which a works approval is not required, the Authority shall not later than 60 days after receiving the application -

(b) amend the licence subject to any conditions that the Authority considers appropriate.

1. The first issue is therefore whether Statewide made an application that complied with section 20A(2). If not, was the EPA entitled to refuse to consider the application pursuant to section 20A(3)(a)?
2. The second issue is whether a works approval is required such that the authority would have been justified in not dealing with the application under section 22A(3)(b)(ii).
3. The EPA says that the proposed amendment of the licence would involve a fivefold increase in the volume of waste. Wherever there is an increase or alteration to waste, the EPA says it will require a works approval pursuant to section 19A of the Act, which provides as follows:

(1) The occupier of a scheduled premises must not do any act or thing, including the commencement of any construction, installation or modification of plant, equipment or process or any subsequent step in relation thereto, which is likely to cause -

(a) an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises; or

(b) an increase or alteration in the waste which is, or substances which are a danger or potential danger to the quality of the environment or any segment of the environment which are, reprocessed, treated, stored, contained, disposed of or handled, at the premises; or

(c) a change in any method or equipment used at the premises for the reprocessing, treatment, storage, containment, disposal or handling of waste, or of substances which are a danger or potential danger to the quality of the environment or any segment of the environment; or

(d) a significant increase in the emission of noise; or

(e) a state of potential danger to the quality of the environment or any segment of the environment -

except in accordance with a works approval or a licence or a requirement specified in a notice given by the Authority as the case may be unless the act or thing is only in the course of and for the purpose of general maintenance.

1. I note that whilst section 19A(1)(a) refers to an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises, which would appear to encompass the situation in the present case, the actual wording of section 19A precludes the occupier of a scheduled premises from increasing or altering the waste deposited at the premises except in accordance with a works approval or a licence [emphasis added].
2. In the present case, Statewide says it is proposing to increase the volume of waste in accordance with an amendment to its licence. As there are no works proposed, a works approval is not required.
3. Whether or not a works approval is required in circumstances where no works are proposed, albeit the volume of waste is increased, will be a matter to be resolved at the hearing of the proceeding. Although I raised this matter at the practice day hearing, the EPA was not in a position to respond. It is a matter that both parties should be given an opportunity to address.
4. Equally, whether it is possible in a practical sense to amend the licence to increase the volume of waste as proposed without the need to undertake any works will also be a matter for consideration at the hearing. If works are required before an amendment to the licence is made, then the application to amend the licence should be refused on this basis. If an applicant chooses to apply for an amendment of a licence without proposing any works when it transpires that works are required, it runs the risk of having its application refused on this basis. However, that is a decision which should be made based on the facts and circumstances of the case and having regard to relevant evidence. In my view, there is no justification based on the wording of the Act which would entitle the EPA to say that in all circumstances where an application is made to amend a licence to increase the volume of waste a works approval is required.
5. I consider that Statewide is entitled to have its application for review considered on the merits. I do not consider it is appropriate for the EPA to attempt to avoid the need to have its judgement that a works approval is required shielded from scrutiny by relying on an argument that the Tribunal lacks jurisdiction because the application did not comply with either section 19B(1) (in case of a works approval) or section 20A(2) (in the case of a licence amendment).
6. In my view, section 19B(1) is not relevant because despite Statewide describing its application as an Application for Works Approval to Amend EPA Licence 74234, it did not intend to make an application for a works approval. It intended to apply only to amend its licence. Whether this turns out to have been correct or not is a matter that will need to be resolved at the hearing. Nevertheless, Statewide is quite clear that it only intended to amend its licence. In my view, the type of application it makes should be a matter for the judgement of the applicant, which will then need to live with the consequences of its choice.

What is the nature of the application made to the EPA?

1. As previously noted, Statewide only ever intended to make an application to amend its licence. It was at the behest of the EPA that it submitted an application entitled Application for Works Approval to Amend EPA Licence 74234. It is therefore important to clarify at the outset exactly what sort of application has been made by Statewide and, if necessary, to amend the type of application to the correct and intended application.
2. Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act enables the Tribunal to amend as it thinks fit an application for a works approval or a licence subject to the proceeding under the Environment Protection Act 1970. Relevantly, clause 64 provides as follows:
   1. Amendment of application

(1) This clause applies to the following proceedings -

(b) a proceeding for review of a decision under the Environment Protection Act 1970 in relation to -

(i) a determination of the Environment Protection Authority or a delegated agency in respect of an application for a works approval or licence; or

(ii) a failure of the Environment Protection Authority or a delegated agency to determine an application for a works approval or licence.

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.

(4) This clause is in addition to, and does not limit or affect section 127.

1. Pursuant to clause 64, I have power to amend the application made by Statewide to clarify that it was an application to amend Licence 74234, not an application for a works approval. I consider that it would be appropriate to do so to remove the ambiguity surrounding the nature of the application and to enable the substantive merits of the proceeding to be considered.
2. I therefore propose to amend Statewide's application to the Authority to an application pursuant to section 20A(1)(a) of the Environment Protection Act 1970.

Were there any deficiencies in the application made to EPA?

1. I turn now to the ability of the EPA to rely upon section 20A(3) to refuse to deal with an application under this section.
2. Section 20A(3)(a) provides that the Authority should not deal with an application under this section which does not comply with subsection (2). Subsection (2) provides that an application for the amendment of a licence shall be: made in accordance with a form and in manner approved by the Authority; accompanied by the prescribed fee; and accompanied by such plans, specifications and other information etc as maybe required by the Authority within 21 days of receiving the initial application.
3. I accept that the application by Statewide did not meet all these criteria. However, I consider there are mitigating factors that make it appropriate to consider whether Statewide's failure to comply with the requirements of section 20(A)(2) should be disregarded pursuant to clause 62 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.
4. Clause 62 provides as follows:
   1. Tribunal may disregard failures to comply

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

1. Taking each of the criteria set out in subsection (2) I consider the following factors are relevant in exercising my discretion under clause 62.
   • The application for a works approval was made by Statewide because this is what it was directed to apply for by the Authority. It followed the Authority's pathway process and believed it was submitting an application in accordance with the Authority's requirements.
   • Statewide tried to pay the application fee, but the Authority did not (or would not) produce an invoice to facilitate payment of the fee.
   • The EPA requested Statewide to demonstrate compliance with relevant state environment protection policies and guidelines, but Statewide disagreed with this requirement because in its view: The site is an existing site and as we set out in the application we believe the amendment is procedural as there will be no change to actual operations. Statewide's 'failure' to provide additional information was a consequence of its disagreement with the Authority that the information was relevant to the application it was making.
2. In addition, I have doubts whether the request by the EPA contained in the following very brief email from the Authority to Statewide on 16 February 2016 in fact constitutes the sort of "plans, specifications and other information" which may be required by the Authority within 21 days of receiving the initial application pursuant to section 20A(2)(c). The email stated:

The information contained in the application is not adequate for us to accept it. We have concerns with the proposal and would like to visit the site. We are not sure whether the site is suitable for the proposed development given the separation distance to the existing residential properties around the site. We would like to advise that the proposal needs to demonstrate compliance with the relevant Environment Protection Polies and guidelines. The proposal needs to meet the requirements stated in EPA publication 1588 "Designing, construction and operating composting facilities" ...

1. However, I do not need to determine this latter point because of my power to disregard the applicant's failure to comply with this provision pursuant to clause 62 of Schedule 1. This is not to say that I necessarily agree with Statewide that such information is not relevant to a consideration of whether the licence should be amended. The relevance or otherwise of such information will need to be considered in the context of considering the merits of the application. At this point, I only need to consider whether any failures by Statewide to comply with the requirements of section 20A(2) should be disregarded.
2. In all the circumstances, I consider that it would be in the interests of justice to disregard the failure to pay the prescribed fee and to comply strictly with the other requirements under section 20A(2).
3. The courts have held that the Tribunal's power to disregard failures pursuant to clause 62 is an extremely wide one. In Harvey v Mutsaers[2] Emerton J commented on the width of the powers under this provision saying:

[34] Clause 62 confers on the Tribunal jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, to disregard that failure. It confers jurisdiction to "determine" and to "disregard" in broad terms. It is not expressed to be limited to overcoming technical or procedural non-compliances or non-compliances that could be remedied prospectively, and there is no reason to construe it as being subject to such implied limitations.

1. In this decision, Emerton J examined the origins and ambit of clause 62 as considered in the leading case of Rumpf v Mornington Peninsula SC[3]:

[17] In Rumpf v Mornington Peninsula Shire Council, Balmford J considered the scope of clause 62 by reference to a deemed refusal by the Minister administering the Coastal Management Act 1995 (Vic) to give consent to a surf life-saving club development. Section 61(3) of the Planning Act required the responsible authority to refuse to grant the permit for the development, and s 82AA of the Planning Act prohibited an application to the Tribunal for a review of such refusal. Balmford J held that clause 62 enabled the Tribunal to disregard the failure by the Minister to comply with s 39 of the Coastal Management Act and the deemed refusal to give consent that followed.

[18] In so doing, her Honour traced the history of clause 62 through s 54 of the Planning Appeals Act 1980 (Vic), which was amended in 1991 to confer jurisdiction on the Tribunal to hear a matter notwithstanding a failure by one of the parties to comply with any Act or regulation.

[19] In response to a submission that it would be contrary to the legislative intention underlying the requirement for the Minister's consent to coastal development to allow the requirement to be circumvented by the operation of clause 62, Balmford J said:

That submission is undoubtedly correct. Nevertheless, cl 62 exists, and in one form or another has existed for many years, and itself expresses a legislative intention. It is there to be employed, and has been employed over the years by the tribunal and its predecessors to circumvent the intention of Parliament by disregarding, in various circumstances, a failure to comply with an enactment. Parliament has given the tribunal that power, albeit to be exercised only when the tribunal considers it to be in the interests of justice to do so.

[20] Balmford J emphasised the width of the powers conferred on the Tribunal by the VCAT Act. Section 52 of the VCAT Act limits the jurisdiction of the courts in planning matters. Section 85 of the Planning Act gives extensive powers to the Tribunal in determining an application for review under that Act, in addition to the powers under s 51 of the VCAT Act. The original jurisdiction of the Tribunal to grant injunctions and make declarations, conferred by ss 123 and 124 of the VCAT Act, is expanded by the power to make enforcement orders, conferred by s 114 of the Planning Act, the wider declaration powers conferred by ss 149A and 149B of the Planning Act, and the power to cancel or amend planning permits conferred by s 87 of the Planning Act. Her Honour then said:

Thus, cl 62 is consistent with the general legislative approach of giving the tribunal the extensive powers which are necessary to enable it to resolve planning issues which arise in the community, and to resolve them according to the merits of the case. Its powers are in many respects wider than the powers of the responsible authorities whose decisions it reviews.

1. The decision of Emerton J in Harvey v Mutsaers was upheld by the Court of Appeal[4]. In doing so, the Court of Appeal also upheld the decision in Rumpf. It held that clause 62 extends to all forms of failure to comply with statutory requirements, regardless of effect.[5] The Court observed that:

[26] ...although at first it might strike one as odd for Parliament to confer a power of extension on VCAT which the relevant authority does not have, it is not illogical. VCAT is itself an administrative decision maker but with superadded obligations and capacity to act in the interests of justice.

1. The effect of the Court of Appeal decision in Harvey v Mutsaers is to put beyond doubt the broad power of the Tribunal to disregard failures to comply with any planning or other enactment and to determine a proceeding if the Tribunal considers it in the interests of justice to do so, notwithstanding that power may exceed what it is open to the relevant authority to do.
2. The Environment Protection Act 1970 is a planning enactment[6]. Consequently, I find the Tribunal has power under clause 62 to disregard any failure of the applicant to comply with section 20A(2) of the Environment Protection Act 1970. In the present case, for the reasons I have set out previously, I consider it would be in the interests of justice to do so.
3. This means that whilst under section 20(3)(a) the EPA shall not deal with an application which does not comply with section 20A(2), this does not mean that the Tribunal may not deal with an application for review for the amendment of a licence where the application does not comply with subsection (2).
4. With respect to section 20A(3)(b), the question of whether or not a works approval is required is a substantive issue about which there is a dispute between the EPA and Statewide. As previously noted, that is something which will need to be determined in the context of hearing the merits of the application for review. If it transpires that a works approval is required, then it is clear from the provisions of the Act that an amendment of the licence cannot be made. But if, as Statewide contends, no works approval is required because no works are proposed, then the question of whether the licence should be amended will need to be determined on its merits having regard to other relevant matters.
5. Thus, I am not exercising any discretion pursuant to clause 62 to disregard any failure of the applicant to comply with section 20A(3)(b) and any need to apply for a works approval under section 19A(1). The exercise of my discretion relates only to non-compliance with section 20A(2).
6. On this basis and having regard to the amendments I have made to the application to the EPA and the application for review to the Tribunal, I find that I have jurisdiction to determine the proceeding as an application for review under section 33A(2)(b) of the Environment Protection Act 1970 of an application for amendment of a licence made pursuant to section 20A of the Act.

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[1] The application for review refers to the statutory basis of the application as being Section 33(2) of the Environment Protection Act 1970. This is an error and the correct section of the Act under which the application is made should be Section 33A(2)(b). I have amended the application pursuant to Section 127 of the Victorian Civil and Administrative Tribunal Act 1998.

[2] [2011] VSC 23

[3] [2000] VSC 311; (2000) 2VR 69

[4] Harvey v Mutsaers [2012] VSCA 69

[5] [2012] VSCA 69 at [24]

[6] Clause 2 of Schedule 1 of Victorian Civil and Administrative Tribunal Act 1998