1. We consider that the two key issues in deciding whether to extend the permit are:
   • Is the continued use and development of the land for a landfill appropriate having regard to planning and environmental policy?
   • Would the proposed continued use and development have unreasonable impacts on the amenity of the area?
2. Before dealing with these issues, we need to address various other issues that the council in particular said were relevant in determining whether to extend the permit. They include the principles in Kantor and especially whether a permit would be likely to be granted should a fresh application be made today.

1. The reason why two applications have been made is because of the particular wording of section 81(1)(a) of the Planning and Environment Act 1987. It provides as follows:

(1) Any person affected may apply to the Tribunal for review of -

(a) a decision of the responsible authority refusing to extend the time within which any development or use is to be started or any development completed; ...

1. A right of review to the Tribunal only lies with respect to an extension to commence a development or use or to complete a development. It is silent with respect to any extension of time to continue a use.[4] The provisions of section 81(1)(a) may reflect the fact that there are not many permits that grant permission for a use with an expiry date for the use. Usually, expiry dates relate only to the commencement of a use on the presumption that a use, once commenced, will be ongoing, or to a development, which will usually have a clear commencement and completion.

16 However, irrespective of the rationale for the particular wording of section 81(1)(a), it means that in the circumstances of this particular case, the applicant must rely upon the secondary consent provision in condition 53 of the permit to seek an extension of the period during which the use of the land may continue.[5] The Council's refusal to consent generates a right of review under section 149 of the Act.

1. The criteria in Kantor are usually used as guidelines to the exercise of discretion about extensions of permits. They can be summarised as:
   • Whether there has been a change of planning control or planning policy since the permit was granted.
   • The probability of a permit issuing should a fresh application be made.
   • The total elapse of time.
   • Whether the landowner is seeking to warehouse the permit.
   • Intervening circumstances.
   • Whether the time limit originally imposed was adequate.
   • The economic burden imposed on the landowner by the permit.
2. Kantor was a case involving an extension of time to commence development under a permit for subdivision. The criteria are generally accepted to be relevant in circumstances involving the commencement of a use or development. However, the Tribunal has consistently found that in cases involving the completion of a development other criteria are also relevant.[6]
3. In Juric v Banyule CC[7] Senior Member Byard said:

[12] The Responsible Authority relied heavily on the principles expounded in the to commencement cases. However, as I said at the hearing, without deciding that those matters are necessarily irrelevant, they are at least of much less significance in a completion case. The fact that there has been substantial commencement and significant commitment, and that significant amounts of work and money have been committed is a relevant consideration, indeed an important consideration, in relation to a completion case. That element is wholly absent, of course, in relation to a commencement case.

1. Senior Member Byard went on to discuss various issues that would be relevant in completion cases, which were usefully summarised by Senior Member Liston in Tylden Nominees Pty Ltd v Macedon Ranges SC[8] as follows:

• It is inappropriate to consider a completion application solely on the principles applicable to commencement applications.
• A substantial commencement, where significant amounts of work have been carried out and a significant commitment in terms of time and money have been made, the face and nature of such a commencement is a relevant consideration, indeed an important consideration, in relation to a completion case.
• The purpose and objectives of limiting times for completion for development are very different to those kinds of safeguards the limitation of times for completion are designed to achieve.
• The critical period for consideration is the period of time allowed by the last extension, and in particular the time that was available and has elapsed since the commencement of the development within that time.
• A reasonable explanation of why a Permit Holder has been held up and left with insufficient time to complete the development is a compelling reason in favour of an extension.
• In completion cases unless planning scheme changes significantly alter the planning situation and considerations they are not an important consideration enough to warrant the refusal of an extension.
• The views of any referral authority and possible objector are not relevant unless it can be demonstrated that some new or significant change to the circumstances has occurred of a kind that would be likely to warrant a different view to the one taken when the permit was granted.
• The nature of the extension to complete that should be given, should allow for sufficient time that is reasonably calculated and foreseeable as would be necessary to carry out the completion of the development permitted.

1. With respect to the application to extend the use, the council said that the Kantor criteria were also relevant. The applicant said that we should focus on the two key issues we have earlier identified about whether the continued use and development is appropriate having regard to planning policy and whether the continued use and development would have any unreasonable impacts on the amenity of the area.
2. We consider it is useful to have regard to all the criteria identified, but on the basis that they are guidelines only. None of the criteria are mandatory tests and simply because one or more of them may not be met is not fatal to any application for an extension of time to complete a use or development.
3. We consider that an application of the various criteria to the circumstances of this case support an extension of time for both the use and development for the following reasons.
4. We do not consider there has been a significant change to the substance of planning controls or planning policy since the permit was granted in 1998. We deal later in more detail with the changes in environmental policy guidelines for landfill design and operations, but conclude that at all times discretion has been available as to how the site may address potential risks.
5. In considering the probability of a permit issuing should a fresh application be made, the Council insisted that we should consider the probability of a permit for a completely new landfill being issued. It says that we cannot ignore that what has been done in the past with respect to the already filled parts of the landfill does not comply with today's standards. Therefore, we must conclude that a planning permit would not be issued today if a fresh application for the landfill as a whole was made.
6. The applicant says that we should only consider an application for cells 5C-2 and 5C-3. Because they are not a new landfill and have already been approved by EPA as meeting current standards, it is highly probable that a planning permit would issue if a fresh application was made for these cells.
7. We disagree with the Council's contentions as to what should be considered as the basis for testing whether a fresh permit would issue. We agree that if a fresh permit for this landfill, as a new landfill, was applied for today it would face a number of challenges in gaining approval because it is below the groundwater table and partly within the 500 metre buffer distance. This much was conceded by Mr Dawson, who gave evidence on behalf of the applicant. However, this is a case where there is an important difference between a request to extend time for commencement of a use and development, and a request to extend time for completion.
8. Use and development of the existing landfill commenced lawfully under the planning permit. The use and development have been ongoing for nearly 20 years under the present permit and the previous permit. If the extension of time is refused, the applicant could lodge a fresh permit application simply for the use and development of cells 5C-2 and 5C-3 plus rehabilitation works. There would be no need for it to apply for a fresh permit for what has already been undertaken. We therefore consider it is an artificial construct to suggest that we must assess the likelihood of a fresh permit being granted on the basis of a new landfill as distinct from the completion of an existing landfill.
9. On the basis of the current zoning of the land (Industrial 1 Zone) and compliance with current planning and environmental policies (which we address in more detail later), we consider there is a good probability that a permit would be issued for the use of the land as a landfill for putrescible and solid inert waste, and the development of cells 5C-2 and 5C-3 plus final rehabilitation works for the land as a whole should a fresh application be made.
10. The permit was granted for a period of 11 years. This is the first application for an extension of time. There is no evidence that the applicant is seeking to warehouse the permit. The land has been used and developed for the purpose of the landfill since the time the permit was first issued and, indeed, before then under the previous permit. There is no evidence that TWM or the previous operator failed to act on the permit or unreasonably delayed completing the filling operations.
11. As we discuss later, the need for additional time is a product of the dynamic nature of landfill operations. It is impossible to be absolutely precise about the length of time it will take to complete filling. Much depends upon the nature and rate of the waste stream over many years. We consider that the time limit originally imposed of 11 years was appropriate based on best calculations at that time, but this time has proven to be inadequate through no fault of the applicant.
12. Compliance with conditions in the permit has imposed an economic burden on the applicant but this is not a relevant factor in why an extension of time is required. Greater economic burdens have arisen under the increasing standards of EPA approvals and compliance measures in response to pollution abatement notices issued by the EPA. We discuss the increase in standards later. However, there is nothing in terms of the economic burden imposed on the applicant by the permit that influences our discretion to extend time one way or the other.
13. On the other hand, the applicant has carried out a significant amount of work under the permit and has made a significant commitment in terms of time and money in reliance upon the permit. A refusal to extend time would have severe economic consequences for the applicant.
14. A refusal to extend time would also create significant and unnecessary environmental problems in terms of leaving substantial voids unfilled and rehabilitation works for the landfill uncompleted. According to the EPA, the hole should be filled because if it is left open, it will be a problem. Likely problems include:
    • Landfill gas will be released from the old landfill (16 North and 16 South);
    • Water ponding;
    • Landfill gas generation; and
    • Difficulty with capping and rehabilitating the site.
15. Avoiding such problems is a further reason for extending time.
16. We also consider that if the permit is not extended to enable the remaining cells to be filled, there will be loss of available landfilling area for putrescible waste. This represents the loss of a valuable community resource.
17. The subject site is included in the Metropolitan Landfill Schedule to the Metropolitan Waste and Resource Recovery Strategic Plan 2009 (MWRRSP). It is identified for a "likely closure post 2020". The Metropolitan Landfill Schedule in the MWRRSP sets a schedule identifying the location and sequence for the filling and operation of landfill sites for metropolitan Melbourne. For planning purposes, the Schedule divides Melbourne into two catchments - the northwest and the southeast. The northwest has significant landfill capacity with evidence of price competition; the southeast has less than one tenth of the capacity of the northwest.
18. We note that under clause 19.03-5 of the state Planning Policy Framework (SPPF) of the Kingston Planning Scheme, planning must consider as relevant the MWRRSP.
19. In our view, it would be a poor planning outcome to reduce the limited resources for disposing of putrescible waste in the southeast by refusing to extend the permit.

Do the conditions in the permit remain relevant and appropriate?

1. Finally, we need to consider whether the conditions of the permit remain appropriate.
2. The Tribunal has taken the view that a decision to extend a permit should not be predicated on the need to then amend it.[9]
3. Two of the Council's grounds of refusal to extend the permit were:
   1. A new application for planning permit for a solid inert and putrescible landfill on the subject land would be likely to be refused or alternatively not granted on the same conditions.
   2. The conditions of Planning Permit KP97-289-A do not provide adequate controls for the continued use and development of the subject land for the purpose of a solid inert and putrescible landfill.
4. At the hearing, the Council did not point to any of the conditions which it said were inadequate or which could be improved. The main issue it relied upon in this respect was that the endorsed plans under condition 2 no longer accord with the plans now being proposed and relied upon, or upon which the EPA works approvals for cells 5C-2 and 5C-3 are based, and there are breaches of those plans. It says the permit can only be extended on the basis of the conditions and current endorsed plans. Given the problems with the endorsed plans and the need to amend them, the permit should not be extended on the basis that the plans will be amended.
5. We do not place any weight on this argument. The endorsed plans are capable of alteration and modification by way of secondary consent under condition 3 of the permit. The conditions of the permit itself do not require any amendment. If there is any suggestion that the development is being undertaken other than in accordance with the current endorsed plans, this is a matter for enforcement, if appropriate. It is not a reason why the permit should not be extended. In any event, we note that condition 52 provides that:
   1. In the event of any inconsistency between the conditions and requirements of this permit and licence issued by the Environment Protection Authority under the provisions of the Environment Protection Act 1970, the conditions and requirements of such works approval and licence shall prevail.
6. We have considered the wording of conditions in the permit and do not consider that there are any obvious deficiencies or inadequacies evident in them. The conditions provide an appropriate framework within which the details of the tipping operations will be undertaken and managed. They contemplate and provide for modifications to plans over time. We consider that the conditions remain appropriate to govern the ongoing use and development of the site for putrescible and solid inert landfill.
7. So far as the detailed construction, operation and rehabilitation of the landfill are concerned, these are properly regulated by the EPA under the EP Act 1970 by way of works approvals, licences and, if necessary, pollution abatement notices.[10] It is not our role as part of this proceeding to examine the details of management of the use and development of this site. That is best left to the EPA. As we later note, the EPA has lifted its game in respect of enforcing its requirements. Coupled with the higher standards which now apply to the construction and operation of landfills, we are satisfied that the conditions of the permit in conjunction with the EPA's requirements administered under the EP Act are adequate and satisfactory to govern the ongoing use and development of the land for the purpose of a putrescible and solid inert landfill.

1. For all these reasons, we consider that time should be extended to complete both use and development under the permit. It remains to set out in detail the two key issues we have identified as being critical to our decision whether to extend the permit, namely:
   • Is the continued use and development of the land for a landfill appropriate having regard to planning and environmental policy?
   • Would the proposed continued use and development have unreasonable impacts on the amenity of the area?
2. We are satisfied on both these issues that time should be extended. We will deal with them in the context of changes in policy guidelines for landfill design and operations and the nature of the landfill operations and potential risks of harm to the environment and amenity.

CHANGES IN POLICY GUIDELINES FOR LANDFILL DESIGN AND OPERATIONS

1. In response to suggestions that the planning scheme has changed, our findings are that while the zoning has changed to reflect the introduction of the new format planning schemes, the use of the site as a landfill in the current industrial zoning remains permissible. It is a section 2 use, subject to the condition that a refuse treatment or disposal site is not within 30m of a variety of other sensitive land use zones.[11] The site meets these requirements. In terms of primary land use controls, nothing has changed.
2. In any event, the subject of much of the Council's submissions in support of this point focussed on alleged changes in the guidelines and policy developed and applied by the EPA to landfill operations rather than any planning provision changes.
3. For reasons we will elaborate on, we are not persuaded that these changes are so substantial that a new landfill application, if applied for today, would be prohibited from operation or that the changes preclude the current operation from continuing to its full development and rehabilitation as originally anticipated. In some instances there are higher standards contained within the contemporary guidelines and controls. Other changes have not 'raised the policy objective bar', rather the changes have provided more detail on how policy objectives are to be met. Whether under past policies or current, we observe that sufficient discretion has been and is available for the EPA and a responsible authority to contemplate the use of this land as a landfill provided the right operational requirements are in place to meet policy objectives to minimise risk to the environment and to amenity.

1. When the landfill was first permitted in 1993 the State Environment Protection Policy (Siting and Management of Landfills Receiving Municipal Wastes) as varied on 15 July 1992 applied (the 1991 Landfill Policy). This policy set out amongst other requirements:
   • Tipping of wastes should not be established or extended closer than 200m from residential areas, where the site is used for municipal wastes in a former extractive industry site and provided the waste is not extended more than 3m above the land surface.
   • Landfill site development may not occur in areas where groundwater impacts are likely unless an attenuation zone is allowed.
   • Design of the landfill may be required to address amongst other matters:
     • Groundwater protection works, including site liners, monitoring and leachate collection and disposal;
     • Landfill gas monitoring, collection and flaring or use; and
     • Rehabilitation including but not limited to final surface contours, capping and drainage;
   • Municipal waste is not to be placed in water and putrescible waste or domestic garbage is to be placed at least two metres above the 'upper level of the groundwater' unless written permission from the EPA is given to do otherwise.
   • Cover material is to be maintained on the site for 'not less than two weeks of operation'.
2. The above list is not exhaustive but is relevant to the matters raised by the Council in its case against the grant of an extension.
3. These requirements were not expressed in mandatory terms. The EPA was able to exercise discretion as to final requirements in the design and operation of the landfill. Having regard to the decisions made by the AAT in the grant of the first permit it is apparent that such an exercise in discretion was undertaken.

1. The 1991 Landfill Policy was replaced in December 2004 with the Waste Management Policy (Siting, Design and Management of Landfills) (the 2004 Landfill Policy). This policy in turn adopts the Best Practice Environmental Management - Siting, Design, Operation and Rehabilitation of Landfills[12] (the Landfill BPEM). The Landfill BPEM has subsequently been revised with the current rendition being 2010. When comparing the Landfill BPEM with the past policy document, we agree with Council that the Landfill BPEM:
   • Sets out more detailed requirements for the design of landfills including cell liners, leachate collection systems and landfill gas management.
   • Effectively increases buffer distance requirements to 500m of separation from buildings and structures, rather than the 200m from residential areas. Again however these distances are not mandatory, although it is fair to say that the BPEM provides further detail on the matters to be addressed in the exercise of discretion over buffer distances.
2. A series of additional guidelines have also been introduced by the EPA, which the Council's submissions usefully summarize, and address the following relevant matters:
   • Environmental auditor review and sign of all landfill design and construction;
   • Periodic compliance performance monitoring, review and by an environmental auditor pursuant to s.53V of the EP Act against the EPA issued licence; and
   • Submissions of an annual performance statement to the EPA and which would be made publicly available.
3. While the Council submits that the above guideline requirements are not yet in place because the current EP licence has not been reformed to accord with these requirements, it would be unfair to contest that the processes of environmental auditing of the design and construction of the remaining landfill cells is now in place. It is, and while the Council sought to challenge some aspects of the auditor's performance of these tasks or question the efficacy of the process, we understand that this and other auditing processes are in place and have been completed to the satisfaction of the EPA.
4. The particular aspects of landfill operations that the council is critical of are that:
   • The depositing of waste has, is and will continue to occur below the natural levels of groundwater;
   • Landfill gas emissions have been monitored along boundaries that exceed action levels of the Landfill BPEM and the management of gas has been poorly undertaken;
   • Odour complaints have occurred throughout the area during operation of the northern part of the site;
   • Groundwater monitoring indicates quality impacts that are indicative of leachate escaping from the landfill;
   • Past practices did not include full landfill cell lining; and
   • The previous approval saw operations within the 200m buffer and now the final completion of these cells would partly occur within the 500m buffer.

1. In comparing the past and present guideline and policy requirements, it is apparent to us that, apart from the additional details provided in the Landfill BPEM, the particular difference of relevance to these applications is the change in buffer distances. We note that there has been a consistency in policy for not locating putrescible waste landfills below regional groundwater levels. The Landfill BPEM provides more detail on this aspect of design, indicating that:
   • Landfills must not be located below the regional watertable;
   • New landfills below the regional watertable should not be considered;
   • New landfills should deposit waste at least two metres above the long-term undisturbed depth to groundwater.
2. The BPEM however provides for exceptions, while highlighting the difficulty of having waste deposited below the watertable. These difficulties are about the operational requirements, such as the need for groundwater extraction to lower groundwater levels, the disposal of groundwater and the need for intensive monitoring. Nonetheless, the BPEM provides a framework whereby landfills might operate below the regional groundwater levels where:

• additional design and management practices to protect groundwater quality will be implemented

• regional circumstances exist that warrant the development of a landfill in this manner.

If the most appropriate site for a landfill is in an area where regional groundwater is elevated, the base of the landfill should be raised to a level above the watertable using a sub-base material designed to attenuate contaminants.[13]

1. In respect to the buffer issue, we have already highlighted that the Landfill BPEM adopts a buffer of 500m from buildings and structures. This buffer however is not a blanket prohibition or hard and fast rule. Variations to this distance may be contemplated and where supported by a risk analysis, varied to accommodate specific requirements.[14]
2. In all, whether under past or present policy regimes, discretion has been available as to how a site may address potential risks. It is appropriate therefore to consider on what basis these risks were and are now to be addressed in order to properly consider these applications.

THE NATURE OF THE LANDFILL OPERATIONS AND POTENTIAL RISKS OF HARM TO THE ENVIRONMENT AND AMENITY

Earlier proceedings, works approvals and planning permits

1. It is evident from reading the proceedings of the AAT[15] that the issues of landfill gas, leachate generation and buffer distances were a consideration in the application and ultimately the decision of the AAT to direct the grant of a permit (P0217/90) as well as a works approval. It is useful to observe that while there was an appeal against the EPA's refusal to grant works approval, the EPA subsequently revised its position on receipt of additional expert and design information and came to the hearing supporting the grant of a works approval subject to conditions.
2. Part of those works approval conditions included:
   • Daily cover of compacted wastes with two weeks reserve of daily cover material;
   • Waste not being deposited into water;
   • The type of waste to be filled on the site included domestic garbage, putrescible waste and solid inert waste, save for a rectangular area of 130m by 70m in the north eastern corner of the site where only solid inert waste could be deposited;
   • All practical measures be undertaken to reduce landfill gas emissions; and
   • Cells be constructed with side liners using slimes that meet a permeability standard of 1x10-9 metres per second.
   • Various rehabilitation, development and monitoring obligations.
3. It can therefore be taken to understand that notwithstanding the environmental policy in place at the time, which we have referred to earlier, about avoiding waste deposit below the regional watertable, the EPA was satisfied that the design and management response was satisfactory.
4. The hearing of the 1991 applications and the eventual granting of the works approval and planning permission proceeded on the best practice standards of the time we have referred to earlier.
5. It also proceeded on the understanding of the operational nature of the landfill as outlined by the operator at that time,[16] which was that:
   • Side landfill liners would be employed in conjunction with the lower permeability natural base of the pit to inhibit leachate migration;
   • The southern two thirds of the pit, of six cells, would receive municipal wastes while the northern third was programmed for solid inert wastes;
   • Slimes removal from the northern third of the site would be required to provide liner material while simultaneously accommodating waste filling, with a target depth of 20m being created for each cell.
   • Daily cover placement, capping, landfill gas extraction and leachate management were all proposed in a manner that accords with the standards of the then 1991 Landfill Policy.
6. The current permit (KP97/289) was issued following an application by the then operator, Pioneer Australia to amend the hours of operation. That application was determined by the AAT in December 1997 following the Council's refusal to grant the changes sought and refusal to grant a new permit to accommodate those changes.[17]
7. The AAT hearing of this matter was limited to traffic issues. The AAT sought and received responses from the parties in relation to a draft of permit conditions for the new permit. Those conditions essentially adopted the conditions of the permit issued in 1993 (Permit No 217/90) so as not to change the intent of the Conditions in Permit No. 21790'.[18] The order modified conditions about operating hours (46(b)), a requirement to cancel permit 217/90 (condition 55)and amend condition 53 for the permit to expire in eleven years from the date of issue as opposed to the fifteen years granted in 217/90. The difference in time to expiry was said by the tribunal to reflect the lapse in time between the new and old permits.[19] This was notwithstanding a record of submissions on behalf of the operator that the site would operate 'for the next 15 to 18 years'[20] giving a time for completion around 2012 to 2015, some five to seven years longer than that allowed for under the original permit.
8. For reasons that we will come to, importantly this process of permits did not disturb condition 52 of the old or current permit. This condition states:

[52] In the event of any inconsistency between the conditions and requirements of this permit and the conditions of any works approval and licence issued by the Environment Protection Authority under the provisions of the Environment Protection Act 1970, the conditions and requirements of such works approval and licence shall prevail.

1. Mr Bogoda gave evidence on behalf of the EPA. His evidence is that the site has been operating under the control of licence EM28818 since 4 April 1996. As we understand the process of works approvals and licences under the EP Act, the normal course is for a licence to issue once the design and construction of the works enabling the use to commence has been completed to the satisfaction of the EPA. The licence was amended in November 2006 to reflect the change in ownership of the site.
2. We are informed by Mr Bogoda that the EPA is in the process of standardising all landfill licences across Victoria and that he 'expects to soon issue a reformed licence' for this site.[21] Whether in its current or the reformed format, Mr Bogoda's evidence reminds us that the purpose of the licence is to control the landfill's operation, i.e. it is the main statutory instrument that provides the minutia of detail over the operations. Condition 52 of the permit confirms the primary role of the licence (and previously the works approval) in this respect.
3. Relevant to the complaints of the Council about aspects of the landfill's development and use, we observe that:
   • The draft licence conditions contemplated by the EPA in the initial approval indicate that:
     • Only the north-east corner of the site be limited to the disposal of solid inert waste;
     • Methane gas control measures be established;
     • Side liners be constructed by specified processes to defined standards and reporting of quality assurance;
     • Final capping design; and
     • Preparation of a restoration/rehabilitation programming, including a rehabilitation plan at least 18 months prior to cessation of filling.
   • The works approval directed to be issued by the Tribunal included conditions requiring:
     • Filling could not commence until the EPA inspected the completed works;
     • Landfill cells to be separated from ongoing sand extraction licensed areas;
     • The landfill be constructed sequentially cell by cell, with a new cell allowed to commence before the operating cell has been completed (filled);
     • The cells to be constructed in accord with designs set out in expert reports provided to the EPA and as evidence in the hearing;
     • No excavation to be lower than RL 18.5 metres (AHD);
     • Construction of two additional groundwater monitoring bores, perimeter drains and leachate sumps in each 'major cell'.
   • The experts called to support the application highlighted the lower permeability of the base Fyansford Formation, which tied with the slimes sideliners and use of dried slimes for daily cover, would serve to restrict leachate migration.[22]
4. Such information points to the fact that the disposal of waste below the watertable was a factor considered in the initial application and that various design approaches and management of the operations were adopted to reduce the environmental risks of such an operation.
5. It would seem to us that the Council's opposition to an extension of the permit based on environmental grounds largely focuses on past design and management requirements proving to be insufficient. It remains to be seen if this is the case. We acknowledge that there is some evidence of uncontrolled gas and leachate emissions to the air and groundwater environment. These are and will be the subject of ongoing management regimes being overseen by appointed Environmental Auditors and the EPA.
6. These proceedings are not intended to delve deeper into or be inquiries of the efficacy of the past design and management practices. On the material before us it is apparent that there remain some legacy issues in relation to this and other past landfill (and indeed sand extraction) operations. We accept however that contemporary programs are in place or being established to deal with these issues to the benefit of surrounding land users, residents and the Council's longer term objectives for this area.
7. The real and relevant question before us distils to one of whether the additional two and final landfill cells would add to such issues.

1. The evidence of the experts including Mr Amaral on behalf of the Council, is that the design of the final cells has been to contemporary best practice standards. Mr Amaral's concerns are based on the fact that positive groundwater control may not be maintained once the landfill cells reach certain points in filling, resulting in liner uplift or failure, and that the processes of daily cover and other conditions may result in gas migration off-site
2. The contrary evidence put forward by the applicant and supported by the EPA, is that through a system of checks and balances, including the auditing of the cell design and construction, installation of modern designs for groundwater control, liner construction, leachate and gas monitoring and collection systems, the operating risks can be minimised to an acceptable level. Mr Amaral agrees that the risks he has identified could be dealt with by the designs adopted for the two cells and ongoing development process, subject to the caveat he has about ensuring proper construction is completed. He remains resolute however in his view that these issues merely highlight the folly of placing waste below the regional groundwater level.
3. We accept that the BPEM and past policies discourage the placing of putrescible waste below groundwater. Current guidelines are almost emphatic that no new landfills should be approved for such an operation unless extenuating circumstances apply. However, as we address elsewhere, this is not a new landfill.
4. Historically this landfill has been permitted to operate in this way, to the standards that applied at the time of the approval progressively through to modern day standards. Mr Green's evidence on behalf of the applicant is that progressive upgrading of cell designs and construction, which we have referred to earlier, has occurred and in which he has had some involvement.
5. This factual evidence is not challenged.
6. Many of the Council's complaints allude to conditions that arise from this landfill's past operations as well as from the operations of the previous gravel extraction and regional landfill operations. In our view, while there is an acknowledgement of such impacts, this does not prevent us from considering the future conduct of this operation in order for it to achieve a proper and orderly final closure.
7. In this respect, we accept the evidence advanced by Messrs Kortegast and Green and conceded by Mr Amaral that the final two cells of the landfill have been designed to the standards of the current Landfill BPEM, inclusive of a range of safeguards to manage groundwater, leachate and landfill gas issues.
8. It is also apparent to us that steps have been undertaken by TWM to address odour emissions from the active cell and open faces. This includes wind monitoring, internal and boundary odour suppressant systems.
9. Existing groundwater issues are being addressed through on-site systems, upgrading of monitoring and development of a region wide response plan.
10. Leachate collection systems are in place to address the more recently closed cells across the southern and northern portions of the site.
11. Landfill gas monitoring, collection and treatment (through the generation of electricity) is continuing.
12. The future cells have been designed to incorporate a gas collection system during construction of the cells as well as post capping. The same applies for leachate collection and treatment.
13. Apart from the concerns of Mr Amaral, which to a large part arise from his philosophical objection to wastes being below the groundwater level, no points have been advanced by the Council that the contemporary leachate and gas collection and disposal systems are not satisfactory.
14. It is appropriate to also consider the position of the EPA. This authority ultimately has the task of assessing and giving final approval to each landfill cell's design and construction, as well as enforcement of ongoing wider operations. Mr Apuduri on behalf of the Council points to past performances of the site and expresses a healthy dose of scepticism about the EPA's ability to achieve satisfactory outcomes.
15. We are not concerned with whatever criticisms may be levelled at the EPA for past performance. More relevant to us is that this authority has demonstrated a commendable level of diligence in the assessment of the final works and recent enforcement of licence conditions. Notably the EPA has vigorously addressed odour, gas and groundwater/leachate issues. A recent Pollution Abatement Notice has been withdrawn on the satisfactory resolution of odour emissions. While the Council may be critical of the EPA, we were not informed about similar Council actions that it was capable of undertaking to address similar issues.
16. The EPA is the lead agency for the detailed management of the landfill. This is by way of its licensing and approval functions accorded under the EP Act and by way of conditin52 of the permit. To us it would seem that of recent times the EPA has discharged its duties appropriately and is working in conjunction with TWM to bring this site to final closure in the most expeditious and appropriate manner.
17. Aided by the evidence of the experts and the EPA's position we are not persuaded by the Council that there are technical failings in the proposed final cells of the landfill that would give cause for us to not permit it to occur. We find no basis to disallow an extension of time on the basis of the risk of environmental impacts from these two final cells.

Buffer distances and the risks of gas and odour impacts

1. As we have highlighted earlier, over the course of this landfill's operation, there has been a revision to the distance that landfills should be setback from sensitive land uses. The present day Landfill BPEM establishes a starting point of 500m from buildings and structures. Earlier guidance was for 200m setbacks from sensitive land uses. The approval of this landfill was based on the fact that the nearest sensitive land use, i.e. residential land use, was some 150m to the north-east. The 200m buffer from putrescible waste filling was established by the north-east corner of the landfill being restricted to solid inert wastes.
2. The nearest point of the new cells to the residential area would be approximately 275m. The nearest distance to any building or structure for the two cells remaining to be completed is estimated to be 50m. These buildings and structure lies in the industrial zone to the north. [23]
3. The Council's position is that the original landfill approvals now result in landfill operations that have created and will continue to create potential amenity and environmental risks. The proximity of the final operations adds to these risks. The Council says that this is highlighted by the fact that the final cells will be largely within the now applicable 500m buffer.
4. The Landfill BPEM sets out that:

Buffer distances are set to reflect the potential impacts from land filling activities. Generally, the buffers are set to manage:

• odour, which is of most concern during landfill operation
• landfill gas impacts, including the risk of explosion and/or asphyxiation. Landfill gas potential risk remain post closure and for at least 30 years post closure.

While other potential impacts such as fire, litter, noise and safety risks exist, the buffers required for protection from these impacts fall within the buffer required for odour and landfill gas.[24]

1. The Council's concerns with what is said to be non-compliance with the buffer requirements, focus on landfill gases and odour.
2. We acknowledge from the monitoring data, complaints records and evidence of the experts before us that there have been odour release incidents and landfill gas emissions both subsurface and above ground at and potentially beyond the boundary of this site. The location of excessive landfill gas emissions are, however, limited to the existing filled areas. These are areas where landfill cells were constructed to the contemporary standards of the time. According to the evidence of Messrs Amaral and Kortegast, the passage of time, monitoring and improved understanding of landfill behaviour reveal inadequacies in the design of these earlier landfill cells.
3. In terms of odour, Mr Kotegarst's review of the EPA complaints records highlights that while some odour sources may have been due to the TWM operations, there are numerous sources of odour in the wider area, including other landfills, which have and will contribute to this problem. Mr Kotegarst acknowledges that recent reporting of odour impacts are likely to be linked to a re-opening of deposited wastes as part of the preparations for new cell constructions and movement of waste cover.
4. The collective expert evidence before us, including that of Mr Amaral, is that the best option to deal with odour is for completion of the two final cells as quickly as possible so that the temporary covering of existing cells side faces can be completed.
5. We accept that the fastest means of achieving final fill levels necessary to address other issues of drainage and future land use is by accepting putrescible waste. The use of clean fill urged by the Council presents logistical and financial problems as set out by TWM that would mean a much longer closure period.
6. We are persuaded by the evidence of Mr Kotegarst, aided by our site inspection, that adequate on-site management of operations can minimise the risk of odour amenity impacts. This does not mean that there will never be any odour impacts. Rather, we are persuaded that the incidence of odour emissions can be limited to a level comensurate with reasonable expectations for immediately adjoining industrial land and the residential areas beyond.
7. As final waste filling operations approach and rise above the surrounding natural surface, greater vigilance will be required of on-site operations. Mr Kotegarst highlights that the period for such potential exposure will be limited to one to two months. The greatest risk of amenity impact will be to the industrial properties to the north. Progressive filling will increase the buffer to the residential areas to the north-east, thereby reducing the risk of exposure.
8. We are satisfied that progressive filling of the final cells can occur in an orderly fashion that can minimise odour amenity impacts. However addressing odour is not the only reason to support the final cell filling in this way.
9. With respect to landfill gases, the evidence of Messrs Kotegarst, Green and Amaral is that design of the final two cells is, as we have noted earlier, to contemporary standards that are intended to minimise the risk of off-site landfill gas migration. We accept this evidence, and while noting Mr Amaral's concerns about the level of risk, we again re-iterate that such concerns are addressed through the program of auditing and final EPA approval of the cells' construction and ongoing monitoring. We are satisfied that, if necessary, adaptive management can be put in place to address unforseen circumstances, just as such management is being put in place to address the historically filled areas.
10. It is apparent that completion of the final two cells will assist in overall management and minimising landfill gas risks by establishing properly constructed gas barriers on existing faces of past deposited wastes, in combination with the adaptive retrofitting of gas collection systems that is occurring under this program.
11. In all of this, we note the position of the EPA and Mr Bogoda's evidence that the EPA is satisfied that the proposed two cells are designed in accord with the Landfill BPEM and accordingly are giving effect to the Waste Management Policy.
12. We are therefore not persuaded by the Council that the extension of time to complete the final two cells introduces some higher level of risk or fails to achieve waste management policy outcomes. We find that the underlying objectives for establishing the buffer distance requirements are being satisfied and sufficient attention is being paid to odour and gas migration issues to support the EPA's acceptance of a decrease in the 500m buffer distance.

DID SLIMES REMOVAL CREATE ADDITIONAL VOID SPACE AND IF SO, WHAT ARE THE IMPLICATIONS?

1. A particular issue in the Council's case is based on the premise that sufficient time was initially given to the landfill operator to complete filling of the site. In the Council's view, the filling with putrescible waste should now cease, the final void be completed to the approved (or amended contours) by filling with clean fill and the site rehabilitated.
2. The Council's complaint is that by removing slimes from the northern portion of the site, the operators, past and present, have created additional airspace for filling and so pushed beyond the anticipated closure date. This is said to present a potential detriment to local residents and occupiers of industrial land to the north.
3. We question the relevance of such a position and more so the veracity of such a complaint. It is evident to us from the previous decisions, submitted plans and licensing approvals that the removal of slimes from the northern area was always intended, as was filling of the void to an agreed final surface level. The filling was approved on the basis of a cell by cell operation, with inert solid waste in the north-east corner closest to residential properties and putrescible waste over the remaining northern area.
4. In our view, nothing has changed with respect to this mode of final filling and closure of the site.
5. Mr Appudurai refers to an exchange of information between the Council., Spring Valley Golf Club and the then landfill operator about airspace calculations. He refers particularly to a letter to Council of 24 June 2003 from Pioneer Australia Waste Management.[25] Mr Appudurai claims that the amendment of the plans of final contours and hence amendment to the permit were only approved by the Council on the basis of these revised airspace calculations contained in this letter and therefore this understanding of airspace (and the letter) constitute part of the permit.
6. Apart from the statutory standing of such a letter, we are not persuaded that this exchange about airspace should be construed in any way as limiting the available airspace or the site's final completion with putrescible waste.
7. As the letter itself relays, changes to final contours arose from the overfilling of the southern portion of the site by the then operator. The main concern of the Council and the Golf Club was the height of the final contours arising from the overfill. As we understand from the submissions of the Golf Club (Mr Barlow indicating that he was engaged by the club to deal with this matter) agreement was reached to adjust the final pre-settlement and post-settlement contours of the landfill to balance this overfill.
8. Under the heading of changes in airspace the letter sets out:

The volume of airspace above natural surface, allowing for thickness of the final cap, has been calculated by Landair Surveys for Stage 1 to 6 to within (sic) 2% of the true value (correspondence attached). Landair calculates:

• For the southern portion of the site (Stages 1,2,3 and 4) the airspace for the Endorsed Plan is 867,535m3 and the airspace for the proposed amended plan is 811,840m3; and
• For the whole of the site (Stages 1,2,3,4,5 and 6) the airspace for the original endorsed plan is 1,738,825m3 and the airspace for the proposed amended plan is 1,449,000m3.

There has been a net loss of airspace of 290,000m3. Stage 7 and 8 have not changed from the endorsed plan.

1. The letter then goes on to detail the operator' request for amending the endorsed plans to reflect the change in final contour levels, setting out amongst matters that the final contours are a 'minor amendment' because:
   • The new final contours result in approximately 290,000m3 less airspace above the natural surface than the original endorsed final contours and therefore the site will be filled more quickly.
2. Plans attached to this letter show the subject area of this application is part of stage 6, while stages 1 through to 5 lie to the south.
3. The Landair advice referred to in the letter of 24 June 2003 was also included in the Golf Club's tabled information.[26] This advice sets out that Landair performed calculations of the approved and modified final, pre-settlement contours against the 'Original Natural Surface' to calculate the volumes of material 'above Original Natural Surface' that would occur under each plan.
4. Having regard to the way in which the advice of Landair is worded and the similar expression in the advice to the Council, along with the fact that the issue to hand was airspace filling height, we are of the view that the estimate of volumes was not for the whole of the landfill as is submitted on behalf of the Council. Rather, the information relates only to that portion of airspace above natural surface level. The letter notes the loss of some airspace above natural surface not for the overall landfill.
5. Mr Barlow's recollection of this information accords with our understanding of this advice.
6. The submissions made on behalf of the Council urge us to adopt the view that the endorsed plans necessarily limited the depth of the final cells to the top of what was the slimes dam area. We do not accept that this is appropriate given all that we have set out earlier. As we have said, the earliest permissions clearly indicate to us that this area was intended to be excavated to remove slimes for use within the site, whether for side wall liners or daily cover. This operation has been ongoing unabated by any enforcement action to cease by the EPA or the Council. Indeed, by way of approving the cell designs, the EPA has approved the works. Mr Green's evidence is that the slimes would have to be removed in order to form a proper base for the landfill cell liners. Such approval is consistent with the initial works approval we have noted earlier, which limited excavation to form cells to not below 18 metres AHD.
7. Whichever way one looks at this complaint, an expectation that there would be no excavation of the slimes in the forming of final cells with a depth comparable to the preceding cells has no foundation in the endorsed plans, permit or licence conditions.
8. Moreover, we consider that this argument is spurious as to why the permit should not be extended. The original grant of the permit contemplated a certain period of time for completion. As is noted in Mr Green's evidence, diversion of some wastes occurred under TWM's management in order to close the Deals Road landfill sooner and retain void space at Fraser Road. This and other factors highlight the dynamic nature of the landfill operations. The real value in understanding the volume of airspace that has been filled and that remains to be filled is to assist us in determining how much longer the landfill may operate and therefore the length of extension of time necessary for the permit.

1. There is disagreement between the requested time for extension between the applicant and the EPA.
2. Mr Green estimates from current and projected waste volumes and airspace that the landfill would be filled between 2016 and the end of 2018.
3. Mr Bogoda estimates an earlier completion time of around February 2017, inclusive of some 17months for contingencies.
4. The applicant's evaluation of best and worst case scenarios indicates a closure time between the end of the financial year 2015/16 (i.e. by end of June 2016) and beginning of the 2017/18 financial year, i.e. around July 2017. The applicant submits that it would be satisfied with a closing date of end of June 2017.
5. We see little difference between the EPA and applicant's positions. However adding six months may be appropriate to ensure no further extension is required. We therefore prefer to err on the cautious side and adopt the applicant's preference to grant an extension to the end of June 2017.

1. We have concluded that the continued use and development of the land for a putrescible and solid inert waste landfill is appropriate having regard to planning and environmental policy. We do not consider that the continued use and development of the land for this purpose will have unreasonable impacts on the amenity of the area or unacceptable levels of risk to the environment. Having regard to the other criteria, which are relevant in assessing applications to extend time for completion of use and development allowed under a permit, we consider there are no reasons why time should not be extended.
2. We therefore determine to extend time for completion of the development under the permit pursuant to section 81(1)(a) of the Planning and Environment Act 1987 and extend time for completion of the use allowed by the permit by way of secondary consent pursuant to section 149 of the Act. The extension of time in each case will be until 30 June 2017.

[1] Andrew Green gave evidence on behalf of the applicant that the Fraser Road Landfill commenced accepting municipal waste in 1984. It appears that this filling occurred in the western part of the site known as 17 North and 17 South. According to Mr Green's evidence, landfilling operations in the eastern part of the site known as 16 South and 16 North commenced within 16 South in 1996 under a permit issued in 1993, PO217/90. Filling of 16 South is completed. Filling of 16 North is partially completed. Cells 5C-2 and 5C-3 are located in 16 North.

[2] Permit KP97/289/A was issued at the direction of the AAT (Administrative Appeals Tribunal) on 24 February 1998. It replaced an earlier permit PO217/90 dated 22 September 1993, also issued at the direction of the AAT, for a similar use and development.

[3] Kantor v Murrindindi Shire Council (1997) 18 AATR 285

[4] The wording of section 81(1)(a) reflects the provisions of section 69 of the Act.

[53] This permit will expire if tipping operations are not completed with eleven (11) years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within 3 months afterwards.

[6] See Juric v Banyule CC [2002] VCAT 396; Tylden Nominees Pty Ltd v Macedon Ranges SC [2004] VCAT 1655; Australand Holdings Limited v Yarra CC [2005] VCAT 2716

[7] [2002] VCAT 396

[8] [2004] VCAT 1655

[9] Sgarlata v Mornington Peninsula SC [2011 VCAT 786

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

[11] Clause 33.01-1 of the Kingston Planning Scheme.

[15] Unreported Appeal Nos 1991/20564 and 1991/20572, dated 31 August 1993.

[16] As per the evidence of Mr Ian Pringle, Divisional Manager of Pioneer Australia Waste Management Pty Ltd recorded at pages 5 to 10 of the reasons of the AAT cit op at [3].

[17] Pioneer Waste Management PL v City Kingston (1997/56173) [1998] VICCAT 91 (30 January 1998) and Pioneer Australia v Kingston (1997/56173) [1998] VICCAT 90 (30 January 1998)

[18] At page 4 of Pioneer Australia v Kingston (1997/56173) [1998] VICCAT 90.

[19] Ibid; see also page 12 of Pioneer Waste Management PL v City Kingston (1997/56173) [1998] VICCAT 91.

[21] At [12] of Mr Bogoda's statement of evidence.

[22] Pages 22 - 29 of the 193 tribunal's reasons.

[23] Figures are taken from Mr Kortegast's evidence at [45] to [47] and Figure 5.

[24] Section 5.1.5 of the Landfill BPEM.

[25] This letter was included in attachments to the submissions by Spring Valley Golf Club at the hearing. We note that this letter of 24 June 2003 to the council was filed with the Tribunal as part of the Council's PNPE2 response. In addition, the Tribunal's file was inspected by Russell Kennedy prior to the hearing.

[26] Letter dated 5 February 2003 to Pioneer Australia Waste Management Pty Ltd tabled in bundle of documents as Attachment 4 to Mr Barlow's submissions and contained on the Tribunal's file in the PNPE2 materials provided by the Council.