The details of the online platform will be provided to the parties before the hearing.

1. The purpose of the practice day hearing is:
   • to hear from the parties about the future conduct of the proceeding. This may include:
     • a consideration of future dates and length of hearing,
     • to consider the conduct of the hearing, including but not limited to:
       • order of appearances,
       • order and grouping of expert witnesses,
       • timing of any accompanied site inspection(s), and
       • allocation of times for submissions.
     • filing of evidence for the final hearing,
     • the conduct of expert conclaves prior to the final hearing, and
     • filing of submissions and a tribunal book for the final hearing; and
   • To make orders about the above matters.
2. If a party is seeking specific orders or directions at this practice day hearing, a draft Microsoft Word copy of the orders or directions must be lodged electronically with the Tribunal and given to the other parties. This must be completed 2 business days prior to the date of the practice day hearing.

What all parties must do for the practice day hearing

1. No later than 3 business days before the practice day hearing, the parties must provide an electronic copy of their submissions addressing the specific purposes of the practice day hearing set out in this order, together with copies of any associated material sought to be relied upon during the practice day hearing (such as supporting documentation and case law) to the Tribunal and all parties. The copy for the Tribunal must be sent to admin@vcat.vic.gov.au

Dr Joseph Monaghan, solicitor, Holding Redlich. Dr Monaghan called the following witnesses:

• Tony Greaves, Managing Director
• Sebastian Weil, Wastewater Management Scientist, Remondis Aqua Australia Pty Ltd

Ms Kay Chan of Counsel. Ms Chan called the following witness:

1. Van Hessen Australia Pty Ltd (Van Hessen) operates a casing production facility at Wangaratta. On 22 December 2022 the Environment Protection Authority (EPA) issued Prohibition Notice PN 000002966 to Van Hessen (Prohibition Notice). That notice requires Van Hessen to cease discharging all its wastewater to its wastewater treatment system (WWTS) until such time as dissolved oxygen (DO) concentrations can be maintained at 1.5mg/L in the aerobic pond and that the WWTS can be operated without emitting offensive odours beyond the boundaries of the premises.
2. Van Hessen has applied for a review of the decision to issue the Prohibition Notice. It seeks a stay of the notice requirements under section 50 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) until the Tribunal determines the review application.
3. This preliminary hearing deals with the stay application. It is not a decision that determines the ultimate merits of the review application, and we stress, we make no final findings about that review. This is notwithstanding that we have been required to form a preliminary view about whether there are serious questions to be tried in the proceeding and how to balance private and public interests as part of our determination of this stay application.

1. Van Hessen's facility in Wangaratta harvests, processes and distributes meat casings and pharmaceutical products.[2] The processing of the meat casings results in the discharge of wastewater into the on-site WWTS. The operation of the WWTS was subject to licence number 2966 issued by the EPA under section 20 of the Environment Protection Act 1970 (1970 Act). That licence has recently been updated to Operating Licence 000002966 (OL2966) to accord with permissions regime under the Environment Protection Act 2017 (EP Act).
2. The WWTS treats wastewater flows from two streams - the casings production stream and the mucosa production[3] stream. Treated wastewater discharges as trade waste to the reticulated sewer system. The WWTS consists of a wastewater transfer station, a covered anaerobic lagoon (where gas emissions are collected and flared as a biogas) and an aerobic lagoon. Wastewater is screened or coarse filtered at the transfer plant and is directed to the anaerobic lagoon and then into the aerobic lagoon.
3. The EPA alleges that there have been issues associated with the WWTS which have resulted in significant odour impacts to the surrounding community in recent months. Van Hessen does not concede that the odours complained of are necessarily from its facility but acknowledged there are operating difficulties due to the organic loading of the WWTS.
4. The EPA has taken a series of steps in response to the complaints, following its own further investigation.[4] On 22 December 2022 it issued the Prohibition Notice to Van Hessen pursuant to section 272(1)(a)(ii) of the EP Act. This follows on from the issue of two Improvement Notices issued in early December 2022.[5]
5. The EPA advised that the Prohibition Notice was issued on the basis that the authorised officer reasonably believed:
   1. Van Hessen was not complying with a permission issued under the Act; and
   2. that having regard to the immediacy of the risk and degree of harm that could occur, prohibiting Van Hessen from discharging to wastewater ponds was necessary to prevent or minimise any harm to human health or the environment from pollution or waste.
6. The operative part of the Prohibition Notice provides:

You are prohibited from:

P1. Discharging wastewater to the wastewater ponds until:

(a) the wastewater dissolved oxygen levels in the aerobic pond reach and are maintained at 1.5mg/L or above; and

(b) the wastewater can be discharged to the wastewater treatment plant without odours offensive to the senses of human beings being discharged, emitted or released beyond the boundary of the premises.

You must report to EPA:

R1. By 06/01/23 you must report how compliance with requirement P1 of this notice has been achieved.

1. The Tribunal granted a short term stay of the Prohibition Notice between 4 and 6 January 2023 by consent, pending the EPA's internal review of the notice.[6]
2. The EPA's Chief Quality Officer subsequently affirmed the Prohibition Notice on 6 January 2023 (EPA review decision).[7]
3. Van Hessen now seeks a stay of the Prohibition Notice until the merits of the review of the EPA review decision are determined.
4. In the course of this hearing, following questions of about undertakings, Van Hessen proposed the stay could be subject to the following conditions:
   1. Van Hessen must demonstrate consistent daily increases in dissolved oxygen levels in the wastewater treatment ponds;
   2. Van Hessen may only discharge from one line of its casing production into the wastewater treatment ponds (constituting a 56% reduction to standard levels of discharge); and
   3. Van Hessen must not discharge wastewater from its Mucosa plant into the wastewater treatment ponds.
5. The review proceeding is currently listed for hearing on 24 May 2023 (for five days).
6. The EPA opposes the grant of a stay and submits that it is appropriate for Van Hessen to cease the discharge of any wastewater into the WWTS until the specified DO levels for the aerobic pond are met and there is no discharge of odour beyond property boundaries.
7. It considers this is necessary to protect human health and to prevent harm to the environment, consistent with the principles of the EP Act and the general environmental duty (GED) under the EP Act.[8]
8. We have issued these reasons with urgency given the importance of the issues raised and the interlocutory nature of the stay application.

The legislative framework and principles for stays

1. Section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 enables the Tribunal to grant a stay in a review proceeding. It provides:

Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

1. A stay may be issued subject to conditions or on the basis of an undertaking. Section 50(5) provides:

In making an order under subsection (3), the Tribunal -

(a) may require any undertaking as to costs or damages that it considers appropriate; and

(b) may make provision for the lifting of the order if specified conditions are met.

1. The Tribunal outlined a number of principles that may be relevant to the exercise of the Tribunal's discretion in Bell v Liquor Licensing Victoria[9] (Bell), including:

(a) The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case.

(b) The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory.

(c) Whether or not there is a serious question to be tried on review is a matter of some importance.

(d) Whether or not it is in the community interest to grant a stay is properly to be taken into account. This involves the balancing of private interests against the public interest.

(e) It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.

1. These principles have been applied by the Tribunal in subsequent cases[10] and we evaluate them below having regard to the facts and circumstances of this application.
2. Fundamentally, the discretion to grant a stay is broad. Beyond the ability to make a stay conditional or subject to an undertaking, there are no statutory limitations or specified considerations for the exercise of this discretion. Although we do not depart from the principles set out in Bell, we note that in Bell, Kellam J also adopted the position of Davies J in Re Dekanic and Tax Agents Board,[11] that the jurisdiction for a stay: [12]

is wide and diverse and it is not practicable to lay down a principle......applicable to every type of case in respect of which there may be an application for a stay.

1. Accordingly, we consider that principles developed in other jurisdictions and in other circumstances should be applied with caution and adapted appropriately to the facts and circumstances before us. In response to our questions, Dr Monaghan agrees that the circumstances before us include not only considering the environmental protection principle of proportionality, but other principles contained in, and the purpose of, the EP Act.
2. In this context, we regard case law principles as a useful guide, but ultimately, we are required to have regard to what is just and fair on the facts before us viewed through the lens of the enabling EP Act. In particular, we believe the need to strike a balance between public and private interests in this case requires us to have regard to the purposes of the EP Act and the principles of environment protection contained therein.

Relevant legislative framework of the Environment Protection Act 2017

1. The Prohibition Notice has been issued pursuant to section 272 of the EP Act. This section of the EP Act provides amongst other matters for the following:

272 Prohibition notices

(1) The Authority or an authorised officer may issue a person with a prohibition notice if the Authority or authorised officer reasonably believes -

(a) that the person -

(i) is contravening or has contravened a provision of this Act, the regulations or a subordinate instrument made under this Act; or

(ii) is not complying or has not complied with a permission granted under this Act; or

(iii) has engaged in or proposes to engage in an activity that has caused or is likely to cause harm to human health or the environment from pollution or waste; and

(b) that, having regard to the immediacy of the risk and degree of harm that could occur, prohibiting the person from engaging in an activity is necessary to prevent or minimise any harm to human health or the environment from pollution or waste.

(2) A prohibition notice may -

(a) prohibit the person to whom it is issued from engaging in the activity, whether or not the person is engaging in the activity at the time the notice is issued; and

(b) require the person to do any other thing that the Authority or authorised officer reasonably considers necessary to prevent or minimise the harm or risk of the harm.

......

1. The purposes of the EP Act include, amongst others:[13]

Purposes

The main purposes of this Act are -

.....

(e) to set out principles of environment protection; and

(f) to set out the legislative framework for the protection of human health and the environment from pollution and waste; and

(g) to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and

...

(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and

....

1. The principles of environmental protection are found at Chapter 2.3 of the EP Act. These include the following elements most relevant to this proceeding:

13 Principle of integration of environmental, social and economic considerations

Environmental, social and economic considerations should be effectively integrated

14 Principle of proportionality

A decision, action or thing directed towards minimising harm or a risk of harm to human health or the environment should be proportionate to the harm or risk of harm that is being addressed.

15 Principle of primacy of prevention

Prevention of harm to human health and the environment is preferred to remedial or mitigation measures.

16 Principle of shared responsibility

Protection of human health and the environment is a responsibility shared by all levels of Government and industry, business, communities and the people of Victoria.

17 Principle of polluter pays

Persons who generate pollution and waste should bear the cost of containment, avoidance and abatement.

.....

19 Principle of evidence-based decision making

Actions or decisions under this Act should be based on the best available evidence in the circumstances that is relevant and reliable.

....

21 Principle of equity

(1) All people are entitled to live in a safe and healthy environment irrespective of their personal attributes or location.

(2) People should not be disproportionately affected by harm or risks of harm to human health and the environment

(3) ....

22 Principles of accountability

Member of the public should -

...

(c) have their interests taken into account in decision made under this Act.

1. The GED is set out under section 25 of the EP Act:

A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.

1. Although we do not recite them here, 'harm' and 'minimising risk of harm to human health and the environment' are defined terms at sections 4 and 6 of the EP Act respectively. Where appropriate we have considered these definitions, along with the purposes, principles of environmental protection and the duty of Van Hessen under the GED.

Would the stay render the substantive proceeding nugatory?

1. This has often been identified in Tribunal proceedings as the 'dominant consideration'. Clearly it is a central consideration in this proceeding, albeit it is one of a number of pertinent matters that we have considered.
2. The parties diverged in their opinions about what would constitute a nugatory circumstance.
3. The EPA submitted that the substantive proceeding to review the affirmation of the Prohibition Notice could still continue even if the stay was refused.
4. Van Hessen submitted that the substantive proceeding would be nugatory, in the sense of having no utility, if compliance with the Prohibition Notice was achieved before that date.
5. In our opinion, the main circumstance by which a stay could render the substantive proceeding nugatory is if Van Hessen met the remedial requirements of the Prohibition Notice, so that it was no longer operative as at the scheduled hearing date.
6. This would arise by operation of section 282(2) of the EP Act since a notice issued without a prescribed timeframe no longer has continuing effect after compliance is achieved.[14]
7. In that circumstance, the refusal to grant a stay would effectively reinforce all requirements of the Prohibition Notice without enabling it to be fully litigated and its appropriateness tested.
8. Therefore, the practical question about 'utility' or 'nugatory' that arises in this proceeding is how certain can we be that compliance with all terms of the Prohibition Notice would be achieved before the date of the substantive hearing?
9. The applicant's evidence indicates that it has provided additional aerators in the aerobic pond in response to the EPA's concerns and the Prohibition Notice. We were advised it has also purchased a standby aerator (a total of nine therefore being available). We balance such a response with the fact that Van Hessen has already reported a failure of a number of these aerators, as recently as 14 and 15 January 2023. This is perhaps not surprising given their constant use in a situation where the evidence of Mr Weil is that the aerobic pond contains a substantial concentration of suspended solids.
10. The documentation provided to us includes various management plans provided to the EPA prepared on behalf of Van Hessen. In the last few days (before this hearing), it has commenced the use of geobags to reduce the amount of suspended solids in the aerobic lagoon liquor. We were advised that this is the first stage of a campaign proposed by Van Hessen in its management plans to desludge the aerobic lagoon. In winter, it proposes a second stage to use a dredge to desludge this lagoon to remove settled solids.
11. Mr Weil projected that Van Hessen could remove approximately 1.5 tonne of dry solid biomass through the daily use of the geobags. He considered that this would result in an increase of oxygenation of the aerated lagoon, by reducing the concentration of suspended solids from 5,000 mg/L to 3,000 mg/L in a few weeks. It is his opinion that the latter concentration would be sufficient to prevent odour beyond the boundary - later advising in his oral evidence that this is based on maintaining DO concentrations of 0.8 mg/L or above - while concentrations of 1,000 to 1,500 mg/L would be manageable at 1.5 mg/L of DO.
12. Mr Greaves expected that Van Hessen could achieve compliance with the 1.5mg/L DO specification in the Prohibition Notice by before the May hearing date.
13. As we have noted earlier, initially the application for a stay was not accompanied by any undertaking or conditions proposed by Van Hessen. At the hearing, a set of draft conditions were provided in terms we have set out earlier.
14. Overall, we find that the evidence for Van Hessen about management of the aerated lagoon and the response to the odour emissions is aspirational. There are various factors that will influence whether the requirements would be achieved before the substantive hearing and there is no certainty that this outcome will ensue given the following set of summarised circumstances:
    • if the stay was refused, it would be in Van Hessen's commercial interests to continue removing suspended solids and to provide aeration, but it is not committing to operate subject to a detailed management plan that includes relevant volumes, flow rates, timelines and other quantifiable or objectively assessable measures;
    • while Van Hessen is prepared to commit to increases in oxygen levels, it is not prepared to commit through the proposed stay conditions to any objective, assessable targets, let alone targets that meaningfully provide confidence that the DO concentrations would stabilise the condition of the aerobic lagoon, such that odours would not be emitted beyond the boundary of the premises;
    • by its own admission and on the evidence of Mr Weil, the figure of 1.5mg/L may not be achieved by the hearing date since 'things can go wrong' and 'there are no guarantees';
    • the increases in the concentration of DO in the aerated lagoon to date have not been significant, with extremely low current concentrations being reported since remedial actions commenced;[15]
    • Van Hessen has not provided any evidence that odour emissions have been measured or monitored in connection with the facility;[16] and
    • the evidence and historic records indicate to us that even if wastewater discharge was restricted to only one casing line (as has been proposed by Van Hessen's stay conditions), this would still have capacity to overload the lagoon given the elevated concentrations of suspended solids in the aerated lagoon, and what appear to be unstable conditions arising in part from the high degree of mechanical agitation of the lagoon liquor (that may in turn be agitating and re-suspending recently settled and historical sludge).
15. Given these conditions and the potential for failure of aerators as well as the yet to be proven effectiveness of the geobag process to remove the suspended solids from this particular system, we consider there is real potential to cause another significant odour event if all the multiple elements of the WWTS and proposed management actions were not properly managed. Further, the full management plan for the aerobic lagoon would not be completed until the winter campaign of dredge desludging. This points to the potential need for an ongoing high degree of scrutiny over the management of the WWTS, which the evidence to date points to as not necessarily having occurred. Here we refer most particularly to the fact that Mr Greaves' evidence acknowledges that Van Hessen had been aware of inefficiencies in early 2022 having commissioned an assessment of the system in May 2022. The draft report on that assessment was delivered in September 2022.[17]
16. In our view it would be too much of a risk to add to the complexity of the response by allowing further wastewater discharge (albeit reduced loads proposed under Van Hessen's conditions of the stay), given the potential extent and severity of odour impacts indicated by past events.
17. For these reasons, we do not accept that a stay could be granted subject to the conditions proposed by Van Hessen. It is also another factor we think points to the need to maintain the requirements of the Prohibition Notice when balancing the impact on the 'utility' of Van Hessen's review application if the stay were to be refused.
18. In conclusion on this issue, while we accept that there is some probability that a substantive hearing may become nugatory (i.e. have no utility) if a stay is refused, this is far from an obvious or a foregone conclusion.

1. We refer to the grounds of review, which mainly dispute proportionality, necessity, alleged inconsistency with EPA compliance policy and factual errors associated with the EPA's internal review.
2. It became apparent during the hearing that Van Hessen's main concern is about the appropriateness of the first limb of the Prohibition Notice which would prevent any wastewater discharge until a DO concentration of 1.5mg/L was achieved. It submitted that a lesser DO concentration can achieve the objective of not causing odour beyond property boundaries, thereby meeting the second limb of the Prohibition Notice.
3. In response to our questions, Dr Monaghan outlined the following questions Van Hessen identified as serious questions to be tried:
   1. whether the requirements of the Prohibition Notice, especially the first limb, are disproportionate; and
   2. whether the requirements of the Prohibition Notice, especially the first limb, are unnecessary and overly onerous,

1. Originally, Van Hessen submitted that an ongoing prevention of wastewater discharge would negatively impact bacteria within the anaerobic pond and that this would have capacity to cause environmental harm.
2. However, in response to questions by the Tribunal, Mr Weil agreed that because the anaerobic pond was covered and had suitable extraction systems to control odour, this would not lead to an increased risk of environmental harm. Instead, it may extend the time and measures required to bring this system back into a stable operating condition.
3. Dr Monaghan now concedes that there would not be a risk of environmental harm but that the prospect of restarting the anaerobic lagoon would instead represent an additional financial cost to Van Hessen.
4. The EPA contests that these questions constituted serious questions to be tried in the proceeding. It also submits that there was no real question or any evidence in respect of the potential claim that there were other sources of the odour, as initially suggested, and that the aerobic lagoon was the source of the reported odour based on its investigations.[18]
5. We queried whether Van Hessen was disputing that it had breached conditions of its operating licence as alleged.
6. Dr Monaghan responded that it was not prepared to make any admissions in the current proceeding, especially having regard to the prospect of subsequent criminal or other proceedings.
7. We were however provided with a relevant press release from Van Hessen apologising for the odour and referring to potential causes and solutions.[19]
8. Irrespective of a lack of admission, the statement of grounds to date do not contest the alleged breaches of the licence. To our mind, such a contest could potentially represent a serious question to be tried if the evidence on this was deficient.
9. However, Van Hessen does not appear to dispute this part of the evidence to be relied on by the EPA.
10. Instead, it seeks to contest the particular concentration of DO that must be achieved in the anaerobic pond before wastewater discharge could resume. It submitted that a measure of 0.6-0.8 mg/l would be sufficient to prevent the discharge of odour beyond side boundaries.
11. Mr Weil in his evidence indicated support for a measure above 0.8mg/l in a well operating system, which generally aligns with the position of the EPA's senior scientist in this investigation.[20]
12. Significantly, both Mr Weil and the EPA's senior scientist acknowledged that a measure of 1.5mg/l DO would provide a suitable buffer and would constitute a suitable long-term strategy for the process stability of its operations. Mr Weil's evidence is that 0.8 mg/L of DO would provide a buffer of 0.3 mg/L, as he considered that generation of odours may be a real risk at a DO concentration of 0.5mg/L or less.
13. The question to be tried therefore is one of difference of expert opinions about what target of DO concentration should be achieved by the remedial action, rather than any dispute about the need for remedial action.
14. Therefore, the contest pertains to a dispute about the specification provided in the identified remedial action. While such contest is open to the applicant, we do not consider that it represents a serious challenge to the lawfulness or appropriateness of the Prohibition Notice in its entirety.
15. It also appears that there is no serious contest about the second requirement of the Prohibition Notice, that no odour be discharged beyond site boundaries.

1. Independently of the parties, we identified a potential complicating issue. As part of the conversion of operating licences to the new legislative regime, the licence for this premises was amended on 5 January 2023.
2. The amendments deleted specific conditions that are referred to as the basis of the Prohibition Notice, including condition L1_A1 which requires that there be no emission of odour beyond the premises.
3. As mentioned, the EPA internal review determination was made a day later. This is the decision that is under review in the current proceeding, pursuant to section 430(1)(a) of the EP Act.
4. We gave the parties an express opportunity to address us on whether this matter has any bearing on the stay application.
5. The EPA submitted that the new GED in sections 25 and 26 of the EP Act would supersede the specific licence conditions. It explained that it could seek to rely on alternative grounds as the basis for the Prohibition Notice at the final hearing, including:
   • section 272(1)(a)(i) - relating to the GED; and/or
   • section 272(1)(a)(iii) - relating to harm to human health.
6. Van Hessen submitted that the amendment to the licence was a material change that should have been taken account of in the internal review. It noted that measures to satisfy the GED may be different from the requirement that no odour be emitted beyond site boundaries. Nevertheless, it did not make any submissions that these matters should affect our consideration of the stay application.
7. It remains to be seen whether the change to the licence conditions could be overcome by the EPA in sustaining a challenge to the review of the Prohibition Notice.
8. We accept that this scenario creates some challenges and adds a level of complexity or risk to the EPA's case, but we are not satisfied that this is an overriding consideration weighing in favour of the grant of a stay.

How long until the substantive proceeding will be heard and determined?

1. The review of the Prohibition Notice is listed towards the end of May. If the matter ran to hearing, it is expected to take up to five days, with up to six weeks for the Tribunal to deliver final written reasons.
2. Van Hessen submitted that it would suffer significant, avoidable financial loss if it was prevented from discharging wastewater until that time. This would effectively operate as a block on all factory operations on the site, with potential financial loss of up to $3.2million when allowing for the review hearing as currently scheduled and a further six weeks for the Tribunal to deliver its determination.
3. Van Hessen submitted that the issue was one of timing, since it advised it was working towards achieving the 1.5mg/L DO in any case. It submitted that if its case for the target concentration to be 0.8 mg/L DO were successful would reduce the compliance time. This would in turn reduce the financial impact.
4. To a large extent, the timing of compliance is a matter within Van Hessen's control. If a stay was not granted, it could seek to achieve this measure as quickly as possible to enable it to resume operations and so minimise its losses.
5. Mr Weil had not prepared calculations but assumed the company could probably achieve DO concentrations of between 0.6 and 0.8 mg/L within two to three weeks. He considered Van Hessen could potentially achieve 1.5mg/L DO within a month (once suspended solids were reduced to a more appropriate concentration).
6. If this were to occur, its business losses would be confined to this period.

The public interest in preventing or minimising harm to the health of members of the community outweighs the potential impact on Van Hessen's private interests, and weighs heavily against the grant of a stay.

1. The applicant did not dispute the fact that community complaints about odour associated with its operations are part of the history leading up to the issue of the Prohibition Notice.
2. These complaints are documented in a number of reports provided to us and include over 200 odour complaints by the community in the Wangaratta area to the EPA since 8 October 2022. Many complaints referred to specific negative health impacts and limitations on the capacity to use outdoor areas.[21]
3. Likewise, the applicant did not dispute that the facility has the capacity to cause odours offensive or detriment to the health of the community if wastewater was not treated properly.
4. We note that as recently as 11 January 2023, when the EPA inspected the site, an EPA officer detected (and reported) odour being emitted from the aerobic lagoon which was considered to have characteristics consistent with odour detected beyond the premises.[22]
5. Further, we observe that the DO concentrations reported in the 11 January 2023 entry report are similar to the concentrations recorded by Van Hessen and tabled in the hearing. More recent DO concentrations readings up to and including 17 January 2023 maintain similar average concentrations of 0.1 to 0.2 mg/L, with spot readings between 11 January and 17 January 2023 generally ranging between 0.06 mg/L to 0.2 mg/L (with one spot reading of 0.61 mg/L DO). Having regard to Mr Weil's evidence that the average concentrations readings are the more appropriate test, we consider that the present conditions are such that there remains significant risk of odour beyond the boundaries consistent with the EPA officer's observations set out above and Mr Weil's evidence for the need to raise DO above at least 0.8 mg/L.
6. Even if Van Hessen were to commit to consistent daily increases in oxygen within the aerated lagoon, it is clear from the most current monitoring of DO concentrations that the WWTS is not operating in a stable or acceptable condition.
7. Relevant to the direct scope of the Prohibition Notice, we consider that allowing wastewater to continue to discharge into the WWTS, albeit at a reduced rate as proposed by Van Hessen, is risk that, at best, could extend the duration of instability within the WWTP and, at worst, introduce a genuine prospect of triggering further odour events.
8. While not directly relevant to this stay application, we observe from Mr Greaves' evidence we noted earlier[23] other wastewater treatment measures beyond those being put in place to address the Prohibition Notice will ultimately be required to reinstate the full functionality and stability of the WWTS.
9. The EPA submitted that refusing to grant a stay would, in these circumstances, be consistent with the principles of the new EP Act.
10. By contrast, Van Hessen submitted that we should prioritise the avoidance of substantial financial cost to it in this proceeding when having regard to the principle of proportionality.
11. We are unable to accept this proposition by Van Hessen and prefer the EPA's position. In our opinion, the legislation provides guidance on balancing private and public interests.
12. Having regard to the purposes of the EP Act we set out earlier, we think weight must be given to the actions of the EPA 'to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste' in circumstances such as we have before us, where there is clearly a case to be answered about significant risks of harm to human health on the wider community beyond the boundary of the Van Hessen facility.
13. Further, we think weight must also be given to Van Hessen's responsibilities under the GED and its knowledge of the WWTS's conditions prior to the issue of the Prohibition Notice. It can hardly be said that the serving of the notice came as a surprise. Mr Kneebone's affidavit outlines not only how EPA officers maintained a line of communication with Van Hessen about the odour impacts, its concerns and possible actions open to the EPA, the serving of two IM's also makes it clear to us that Van Hessen was well aware of the position of the EPA and the risks it identified.
14. Van Hessen's position is that that the principle of proportionality calls for us to consider whether the requirements of the Prohibition Notice and the consequential impact on its private interests (which we consider later in these reasons) are proportional to the harm or risk of harm to human health and the environment.
15. If we were to accept that this is how that principle ought to be applied, it is not the only principle that is required to be considered given the principles for integration of environmental, social and economic considerations at section 13 of the EP Act. Further, the principal of accountability, notably at section 22(c), direct us to take account of the public interests.
16. In this instance, there are other economic and social considerations.
17. In favour of Van Hessen's position is the economic and social considerations from closure of the plant and the temporary or permanent loss of employment for up to 30 EFT positions,[24] which is also a relevant public interest. Though not evaluated in evidence or submissions, we are conscious of the implied wider social and economic impacts in a regional city from the potential loss of these jobs, whether temporarily or permanently.
18. However, what weighs against Van Hessen is the social and environmental impacts of risks of ongoing odour emissions, which, from the technical evidence, we consider to be ongoing, and heightened if even limited use of the WWTS were to be allowed at this stage.
19. Notably, section 15 of the EP Act establishes the principle of "primacy of prevention" which in our view lends weight to continue the Prohibition Notice in order to give primacy to the protection against further odour emissions.
20. This is also consistent with the principle of equity, particularly at sections 21(1) and 21(2) of the EP Act, since people are entitled to a healthy environment and should not be disproportionately affected by harm (including consideration of amenity[25]) or risk of harm to their health.
21. Van Hessen also bears a shared responsibility under section 16 of the EP Act for the protection of human health and should therefore take appropriate action accordingly. While we accept that Van Hessen is taking some action, we do not consider that its proposal to allow limited production involving ongoing disposal of organic suspended solids into an unstable WWTS accords with a responsible action at this time.
22. It may be that if Van Hessen could demonstrate an acceptably stable WWTS that was not emitting odour or was at risk of doing so, this principle would weigh more positively in its favour, but we are not persuaded that this is yet the case.
23. Finally, we think the principle for polluter pays (at section 17 of the EP Act) is a clear indicator that those who generate pollution[26] (being the emission of odours by Van Hessen) are to bear the cost of abatement. We think that the costs of abatement may well include costs associated with the need to cease the polluting activity until such time as there is no longer at an unacceptable level of risk of further pollution.
24. In conclusion on this issue, we find it is not acceptable for the community to continue to bear the potential impacts of the operations on site given the balance of the principles for environmental protection, especially since this is a known condition and within the control and responsibility of the applicant.

1. Van Hessen submitted that the harm to it caused by the potential refusal of a stay would outweigh any harm suffered by the EPA as decision maker (which includes regard for community interests).
2. Mr Greaves' evidence outlines the potential financial impact to the company if it was required to cease operations at the facility as a result of the Prohibition Notice. It estimates a minimum cost between $185,000 and $205,000 per week.[27]
3. The evidence also highlighted potential impacts on up to 30 FTE regional jobs we have noted earlier, which may also be triggered if Van Hessen was required to sub-contract to another facility in Ararat (as is an option).
4. We accept that the financial cost of complying with the Prohibition Notice between now and the substantive hearing would be substantial.
5. For the record, we reject the notion advanced by Counsel for the EPA that we could only grant a stay if the applicant would be caused irreparable damage to its business, tantamount to complete failure. The power to grant a stay is not restricted in this way, and the risk and scale of financial harm is one of a number of important considerations that need to be balanced.
6. The costs of compliance between the date of issue of the notice and date of determination of the review proceeding is particularly relevant given the principle of proportionality in section 14 the EP Act we have set and discussed earlier.
7. Nonetheless, we make three broad observations about the financial consequences for Van Hessen.
8. The first is that it is clear that the existing WWTS on the site is not functioning properly, even without additional wastewater discharge.
9. In order to discharge its responsibilities under its operating licence and the EP Act, Van Hessen will be required to undertake substantial urgent work to restore functionality to its system irrespective of the Prohibition Notice. This is critical to the ongoing operations of the facility and comes at a cost which as we have concluded above, is reasonable to be borne by Van Hessen given the applicable principles of 'polluter pays' and 'shared responsibility'.
10. This tempers the concept of 'avoidable cost' as referred to in submissions for Van Hessen.
11. Second, we observe that there are other measures (albeit at a cost) to pursue alternative waste disposal in the interim (for example, through North East Water or a Remondis facility in Dandenong for the peptide waste stream) to enable continued operations. There may also be ways that this cost can be tempered to some extent as outlined by Mr Greaves such as by freezing certain incoming stock, rearranging leave arrangements, sub-contracting various operations and the like.
12. The third consideration is one of equity. We agree with the EPA's assessment that this is a problem of the applicant's own making, and as we noted earlier, it had knowledge of a deteriorating or failing system some time before the issue of the Prohibition Notice. This impacts on what is a fair balance to strike between public and private interests.
13. We are familiar with the reasoning of numerous other divisions of the Tribunal in stay proceedings, including in other lists of the Tribunal.
14. We were referred to a number of specific cases by the parties including AZD v Secretary to the Department of Justice. [28] The applicant submitted this case establishes a principle that there should be a 'predilection' in favour of not putting people out of business until they have had the opportunity to pursue the application for review.[29]
15. We have already explained how there are two mitigating factors in this case. Most significantly, the risk to the community of allowing additional wastewater discharge is extensive and real given the condition of the WWTS. In addition, we are influenced by the fact that Van Hessen had prior notice of the concerns of the EPA and the measures that were required to remedy the risk.

1. It has not been demonstrated that refusing to grant a stay would render the substantive merits review of the Prohibition Notice nugatory. There is no certainty or commitment that the measures required by the Prohibition Notice would be achieved before the date fixed for the hearing.
2. We accept that the financial costs of compliance with the Prohibition Notice may be significant for Van Hessen. However, some of these costs are inevitable to restore functionality to its WWTS to meet its operating obligations under the EP Act and its operating licence. In addition, as a matter of equity, it had knowledge of the concerns raised by the EPA and the likely range of remedial measures required.
3. Drawing together our reasons outlined above, we conclude that balancing Van Hessen's interests and the consequences of not granting a stay do not outweigh the purposes of the EP Act including the principles of environmental protection or considerations of equity.
4. In our view the balance falls in favour of not granting a stay under the present circumstances since we are persuaded by evidence that a substantive risk of odour impact beyond Van Hessen's facility boundaries exists until it achieves a stable and well run WWTS. This has the potential to be compounded or delayed by the introduction of additional wastewater as proposed by Van Hessen under its conditions for the stay.
5. There is no fundamental challenge about the alleged breach of licence conditions, the need for remedial action or the underlying objective of such action. We are not persuaded the conditions for the stay put forward by Van Hessen nor its argument about the excessiveness of the first requirement (i.e. achieving 1.5 mg/L DO concentration) are sufficient to justify a stay of the Prohibition Notice in these circumstances.
6. For these reasons, we are not persuaded it is appropriate to grant a stay of the Prohibition Notice. The request for a stay is refused.
7. The matter will be listed for a practice day hearing to consider timetabling of procedural orders for the substantive hearing once parties have had the opportunity to seek instructions.

[1] The submissions and evidence of the parties, all supporting exhibits given at the hearing and other filed materials have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] Affidavit of Mr Tony Greaves sworn 16 January 2023, [2] ('Greaves' affidavit').

[3] The mucosa production recovers peptones used in the pharmaceutical production of heparin.

[4] See for example the entry reports contained in Exhibit BK-2 of Affidavit of Mr Kneebone, dated 16 January 2023 ('Kneebone affidavit'). See also the Remedial Notice Review Decision 6 January 2023 PN-00003858, p7.

[5] Exhibit BK-4 of the Kneebone affidavit, n 4.

[7] Remedial Notice Review Decision 6 January 2023 PN-00003858 ('EPA review decision').

[8] Set out in Chapters 2.3 and 3.2 of the EP Act respectively.

[9] [2000] VCAT 214 ('Bell').

[10] We were referred to Duncan v Nurses Board of Victoria [ 2006] VCAT 4, [9]; AZD v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 977, [9]; and Monsbent Pty Ltd v Environment Protection Authority [2022] VCAT 1487, [20].

[11] (1982) 6 ALD 240 ('Dekanic').

[14] Although we acknowledge that the requirements of the Prohibition Notice purport to require specified DO levels to be 'maintained' for an indeterminate length of time.

[15] Records of DO concentrations measured from the aerobic lagoon between 23 December 2022 and 17 January 2023 were tabled in the hearing.

[16] Although Mr Greaves advised that he has recently commissioned a full odour assessment in the coming fortnight.

[17] Van Hessen Casing Wastewater Treatment Plant Wangaratta Assessment and Recommendation Report September 2022, prepared by Remondis.

[21] Mr Kneebone's affidavit n 4, [33]-[34].

[22] As at the date of this decision we were not provided with a documented copy of an EPA inspection report from 16 January 2023 which we were informed of during the hearing.

[26] See section 3 for the definition of 'pollution' under the EP Act which includes the emission of odours.

[28] [2009] VCAT 977.