Yarra Ranges SC v Australian Native Landscapes Pty Ltd

Yarra Ranges SC v Australian Native Landscapes Pty Ltd - [2009] VCAT 1025 - VCAT 2009 case summary — Zoe

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if any party considers that the two days allocated would be insufficient they are to advise the tribunal and the other parties in like manner and by the like means as is specified in b and c above stating how long they consider would be necessary,
Application for review P318/2008 under the Environment Protection Act 1970 is adjourned to an administrative mention on 14 August 2009 subject to the following arrangements and directions:
1. the Environment Protection Authority is to file with the tribunal and serve on the other parties as aforesaid by 14 August 2009 a suggested draft for orders to be made in connection with this proceeding having regard to what we have said in this document including the terms of a licence pursuant to s 20 (7) of the said Act and draft conditions in relation thereto,
2. any such party, including the Environment Protection Authority, who considers that a further hearing is required in relation to the form of order and conditions is to notify the tribunal and each other such party to that effect in writing by 28 August 2009, such notification to be marked for the several attention of Member Ian Potts and Senior Member Russell Byard, which notification is to set out:
  - (i) amendments, alterations or deletions that such party considers appropriate,
  - (ii) the grounds for saying so and the grounds upon which it intends to rely at such hearing,
  - (iii) any such further hearing will be conducted at the same time as the hearing currently appointed to commence on 15 September 2009 (the date of which further hearing may need to be altered) unless we determine that no further hearing in relation to this proceeding is required.
In relation to enforcement order application P2788/2006, we find that there has been and is continuing a contravention of condition 14 of planning permit YR-2004/164 issued on 19 July 2004 and we order that, subject to any further order of this tribunal or the consent of the responsible authority the respondent company Australian Native Landscapes Pty Ltd must cease receiving green waste for composting on the land by four months from the date of this document and must process and remove from the land all green waste, composting material and composted material within 3 months thereafter.
Questions of costs are reserved.

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These cases now have a long history. Hearings totalling 36 days were conducted over a number of months in 2008. We subsequently gave a lengthy interim determination dated 20 November 2008.
We have subsequently conducted further hearings on 1 December 2008, 13 March 2009, and the 20th and 21st May 2009.
A summary of our conclusions at the time of our interim determination of 20 November 2008 is contained in paragraph 204 of our determination of that date. That paragraph is part of a lengthy set of reasons in relation to these cases[1]. We found there has been a continuing serious intermittent odour nuisance emanating from the review site where Australian Native Landscapes Pty Ltd (ANL) conducts a green waste composting facility. These odours adversely affect residents and others in northern Lilydale, to the south of the ANL site and in Coldstream, generally to the north of the site.
In our reasons, we recounted a history of the composting activities conducted on the site and in relation to the planning permit and the Environment Protection Act 1970 (EP Act) works approval granted in relation to the conduct of such activities on the site.
This history includes the circumstance that ANL was not the applicant for either the permit or the works approval. They had been obtained by the Regional Waste Management Authority, known as LeastWaste, of which the Metropolitan Waste Management Group is now the successor. At the time the planning permit and the works approval were the authorisations required for the conduct of the facility under the Planning and Environment Act 1987 (PE Act) and the EP Act.
The land upon which activities of that sort are conducted are "scheduled premises" under the environment protection legislation, indeed the premises are Schedule 1 premises under the relevant regulations. However, at the commencement of the authorised works and operation of the site, outdoor green waste composting of the sort contemplated in the works approval was exempt under the regulation from any requirement to obtain a licence under the EP Act. The development and the conduct of the site, at that stage, was to be regulated (from an environmental protection point of view) by the works approval.
The Environment Protection Authority (EPA) created under the EP Act can amend a works approval. In fact this works approval was amended before the works were completed.
The EPA has extensive powers in relation to carrying out the purposes of the EP Act. That Act contains a more extended account of those purposes, but they include protection of the environment including the prevention of the sort of odour nuisances that have given rise to these current proceedings.
These powers include the ability to enforce its requirements. For example, s 31A PE Act empowers the EPA to serve pollution abatement notices requiring that a process cease to be carried out or that it only be carried out in a manner specified in the notice.
ANL effectively inherited the site, the planning permit and the initial works approval from the predecessor of the Metropolitan Waste Management Group. It carried out the works and requirements of the amended works approval to the satisfaction of the EPA and the EPA expressed itself as being so satisfied. That authorised the commencement of the green waste composting activity on the basis that it should be conducted in accordance with the works approval including utilisation of the works constructed in accordance with that approval.
The conduct of green waste composting on the site promptly resulted in serious odour nuisances. This gave rise to complaints.
In our interim determination we recount what happened after that. Both ANL and the EPA set about the problem of abating the nuisance. While it is fair to say that the conduct of those parties in that respect is not without blemish, various problems were rectified.
However, there was and is a fundamental problem that has not yet been rectified. The evidence demonstrates that the conduct of green waste composting on this site in accordance with the works approval gives rise to serious odour nuisance problems.
The works approval contemplates up to 120,000 tonnes of material being processed in a year with uncovered storage of the green waste raw material and its composting in uncovered stage 1 or active phase windrows and in uncovered stage 2, or maturation windrows. Frequent disturbing or turning of the material in the windrows is required to provide aeration and appropriate processing.
We are confident that, if what is now known as a result of experience and the evidence in these cases, had been known at the time the works approval was granted it would not have been granted in its present form or, perhaps, it would not have been granted at all.
The basis of the works approval, as we understand it, is that it was supposed to achieve compliance with a State Environment Protection Policy[2] (the SEPP). The SEPP looks for not more than one odour unit (which is a barely perceptible level of odour) at the boundary of the premises under normal operating conditions. A buffer distance separation from sensitive land is to give protection in relation to "upset" conditions when something might go wrong. In the present case, the buffer distance was reduced to 600 metres for reasons discussed in our previous determination.
One odour unit at the site boundary is very conservative, and could not amount to a nuisance for people residing in Lilydale or Coldstream.
Standard operation in accordance with the works approval in fact gives rise to severe intermittent odour nuisance in those localities and greatly exceeds the standard of one odour unit at the site boundary. This is for standard operations, not upset conditions.
Since those circumstances were appreciated, ANL and the EPA have sought to rectify the situation. A number of steps and modifications have been implemented. Two pollution abatement notices have been issued and one was subsequently amended. The process as currently conducted no longer conforms to the works approval.
Attempts to find means of abating the nuisance have been ongoing. They continued during and between the months of April and October 2008 whilst the main hearings in relation to these cases were progressing. The immediate aim was to abate the nuisance and to relieve the residents and others in Lilydale and Coldstream from the effects of the nuisance. We understood the attitude of the EPA in relation to these efforts to be cooperative and helpful, and that continued to be its attitude, at least to the end of the hearing in October 2008.
At that stage various modifications had been implemented and others had been experimented with, tested and modelled. ANL had devised and suggested certain further steps which are intended to finally abate the nuisance.
Detailed plans and specifications were not available at that stage. We have discussed the ideas in previous determinations in relation to these cases. The major features are:

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covering and aerating of maturation windrows.
By the end of the hearing in October 2008, we had heard a wealth of evidence of various sorts including technical and expert evidence.
We found ourselves faced with something of a dilemma. We noted that green waste composting of this sort has a good deal of merit in environmental terms, so far as the broader community is concerned. Indeed, the EP Act constitutes the Metropolitan Waste Management Group and its predecessor for establishing such facilities but with the idea that they should then be passed on to operators like ANL, rather than operated by the Metropolitan Waste Management Group itself. It reuses what would be waste material that would otherwise go to landfill. Not only would this waste the material itself, but also would use up scarce and valuable landfill opportunities. Five municipalities direct their green waste to the ANL site and would need at least a number of weeks to make alternative arrangements, even for the unsatisfactory disposal of the green waste to landfill.
We noted that ANL had been caught with a planning permit and, in particular, a works approval, inherited from the predecessor of the Metropolitan Waste Management Group which, if operated in accordance with the works approval, did not comply with the policy and created serious odour nuisances. Notwithstanding certain delays or blemishes in correcting certain things along the way by both parties, we were and we remain of the view that the core reason for the nuisance is the inadequacy of the works approval authorising the works and operation of the site. We were also of the view that ANL has and continues to express an intention to make the site work without causing nuisance.
It is the enforcement order application, brought by the responsible authority, that can authorise us to require closure of the operations. Obviously, we would not do that willingly or lightly in the circumstances, but only if the various considerations in favour of continuing the operation are outweighed by countervailing considerations.
There is a heavy countervailing consideration to the ongoing operation in its current form. That is the continued exposure of the residents and others in Lilydale and Coldstream to odour nuisance conditions. It is not their fault that they are exposed to such conditions, and they have been exposed now for a considerable time, and more than sufficient to make them sensitive to the conditions. These odour conditions are an unreasonable burden on their lives and their enjoyment of their properties for residential purposes.
It is this pressing consideration that makes these cases, their determination and future conduct so difficult. No doubt there might be difficult intellectual and technical problems in achieving compliance with the one odour unit at the boundary policy requirement. No doubt that could be considered further and dealt with in a timely way if that was the only matter to be resolved. It is the continuing exposure of members of the public in Lilydale and Coldstream to the serious nuisance that creates the dilemma, the pressure and the urgency of the situation that faced us in November, (and which unfortunately still faces us today). Throughout the conduct of these proceedings, we have been very conscious of this pressing consideration and we have often said so. Suggestions that we are unmindful of this are neither true nor helpful.
A further consideration was our assessment of the likely merit of the further steps ANL was proposing. Our assessment was that these further steps had a reasonably high probability of achieving an abatement of the nuisance. Furthermore, although nothing of the sort could be achieved on the instant, we considered that there was a reasonably high probability that the works could be implemented and put into effect reasonably promptly. We formed the view that, in those circumstances, the way ahead was to adjourn the then current proceedings and to create the opportunity for ANL to implement its further proposals as expeditiously as possible.
We contemplated creating this opportunity whilst allowing continuing operations on the site. We would not have found reaching our decision so difficult if we had concluded that an enforcement order should be made compelling closure of operations on the premises. In doing so, we reserved some questions of law that had been raised and argued in the course of the hearing up until November 2008.
It was our understanding that, on the basis of what had been said by and on behalf of the parties in the course of the hearing to November 2008, that they were amenable to that course even if, in some cases, it was not their first preference. There had been some discussion as to how such a strategy could be implemented. After all, the further proposals included the construction of a new building and the carrying out of new works including bio filters, special concrete areas, pipes and other equipment. Planning permission would be required for such buildings and works although, as we have previously observed, we see little reason as to why such permission should not be granted. However, it is not only planning, but also environment protection legislation that has to be considered in relation to whether permission is required for new buildings and works.
This aspect was discussed in the hearings in October 2008. Possibilities appeared to be amendment to the works approval, the issue of a pollution abatement notice, utilisation of the research, development and demonstration approval procedures provided for in Sections 19D to 19F of the EP Act or a new works approval.
ANL, then and since, has sought the issue of a licence which might contain conditions requiring and authorising such buildings and works. However, we indicated in our November determination that we wanted to defer determining the then current proceedings until the contemplated further steps had been implemented and had demonstrated their effectiveness (or otherwise).
In its submissions dated 10 October 2008 the EPA at its paragraph [18] said:

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In view of such expressed sentiments we were seeking to facilitate and achieve a practical solution to a practical problem. In view of the urgency that we perceived we sought to proceed with that practical solution, and defer other questions, including some legal questions which, as we perceived it, did not have the same urgency.
We have been urged, in this connection, not to seek to provide practical supervision of the works. It was claimed this is the role of the EPA and that it is the authority that is equipped to do it. We were prepared to adopt that view.
We appointed a further hearing for 1 December 2008. Our determination of 5 December 2008 arose from that hearing. The hearing was called to give the parties an opportunity to make submissions as to how the case should proceed. By proceed, we meant proceed in a way that would enable the new building and further works to be constructed and the new procedures to be implemented with the premises continuing to operate.
We conducted the hearing on 1 December 2008 and published a further interim decision with orders and reasons dated 5 December 2008. The reasons attached to that document set out the situation at that stage. The EPA, at that stage, was seeking a cessation of reception of green waste, the processing of present stocks and its removal leaving a clear site. We clarified, in our reasons, that this was not what we had said and not what we had intended to convey.
For present purposes the important part of what happened on 1 December 2008 was that ANL recognised a need to prepare proper plans documentation and specifications for the proposed new works. When prepared this material would need to be provided to the Tribunal and the other parties. It was recognised by ANL that other parties might need to be heard or wish to be heard in relation to such plans, specifications and documentation. It was thus suggested that there should be a timetable within which the material was to be provided with a further hearing to be appointed to enable such parties to be heard on that topic. Directions were given for the filing and service of the material by 27 February 2009 and a further hearing was appointed for Friday 13 March 2009.
At the hearing on 1 December 2008, little was said about the possibility of utilising the research, development and demonstration procedure provided for in s 19D EP Act. We took the opportunity of reminding the parties about previous considerations of this possibility. In fact, we went so far as to say that, if it was not to be utilised, we would like to know in writing why not.
A hearing was conducted on 13 March 2009. The plans, specifications and documentation to be filed and served by 27 February 2009 were not in fact filed and served by that date. However, they were filed and served by 13 March 2009. Without objection, leave was given for this material to be relied upon. This material sets out the further building, works and procedures proposed by ANL.
In the meantime, ANL has instigated steps with a view to obtaining EPA authorisation for the construction of the building and works. Three approaches were adopted in that respect. They were:

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a request that the EPA consider amending pollution abatement notice 6170 to direct ANL to carry out and construct the proposed new works.
No doubt an alternative to (c) above would be the issue of a new pollution abatement notice.
Only the first of these is actually an application provided for in the PE Act. The other two are really invitations to the EPA to consider exercising powers that it has under the legislation. There is no appeal or review by the tribunal if the EPA should refuse the application or deny the invitations.
It is not our function to give legal advice to ANL, or any of the other parties. We do not intend to venture beyond making suggestions that ANL or other parties may like to consider. At paragraph [14] of our interim determination dated 27 March 2009 arising from the hearing on 13 March 2009 Mr Finanzio, for the EPA, had said that the original works approval had been given some time ago and that the works had been completed so that the approval may have lapsed or become exhausted in some sense and that a new works approval might be necessary. We said "Those acting for ANL may need to consider whether a new Works Approval should be applied for".
In similar vein, in relation to planning matters, we had suggested that consideration might be given to whether ANL wanted to initiate its own request for amendment to the existing permit and also whether, in the circumstances, it should apply for a new planning permit.
A new request proceeding has been commenced, but no new permit application has been made, and no application for a new works approval has been made. One advantage of such new applications is that ANL would not be dependent on the whim of the relevant authority. In particular, in relation to a new works approval application, there would be an appeal to this tribunal so that ANL would have some potential remedy in the event of the EPA declining its invitations and refusing its s 19D application.
As at 13 March 2009, parties claimed that, due to late delivery of the plans, specifications and documentation, they needed more time to consider what they had received. This led to the appointing of the most recent hearing that we have conducted on 20 and 21 May and in relation to which we are providing this document.
As at 13 March 2009 the reason for the further hearing, as far as we were concerned, was to give parties an opportunity to be heard in relation to the plans, specifications and documentation. It was not, in the first place, to consider legal questions. That being the purpose, we do not think that parties can now be heard to say that they have been denied an opportunity to be heard in relation to the plans, specifications and documents or, for that matter, in relation to the new request proceeding. In that connection we note that all parties were well aware in general terms of what was proposed, and then in particular terms. In addition, precautionary steps were taken to ensure that notice was given widely of the new request for permit amendment. Indeed some written responses have been the result.
Mr Finanzio did say on that occasion that the EPA wished to consider the application and two invitations that it had received as there may be legal jurisdictional or procedural problems in relation to them. At that stage however, and subject to that comment, we were still proceeding on the basis of facilitating the practical solution to the practical problem.
We regard the hearing of the proceedings that were before us in October 2008 as having been concluded in October 2008. After very lengthy hearings, it got to the stage where all parties had put their evidence and put their legal propositions. We would not regard them as being at liberty to lead new evidence or raise new legal issues without leave. The further hearings were intended to be procedural in nature and to enable the practical solution. That does not mean that leave would not be granted, particularly in relation to legitimate new matters. However, it does not mean that parties can go back to lead evidence that could or should have been given during or before October or to raise new legal questions that could or should have been raised at those times.
Of course, at the beginning of each hearing, we have been interested to know whether the practical problem has in fact been solved and the nuisance abated. Alas, that situation has yet to be achieved.
That said, the matter of legal and procedural questions was mentioned on 13 March 2009. Wisely or otherwise we, or at least the presiding member, was persuaded to give directions that parties should list such legal or procedural questions as they thought should be determined. However, care was taken to reserve to ourselves the question of which such questions would be dealt with and when. That was because we were still pursuing the idea of the practical solution to the practical problem.

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The works approval contained "General Conditions", "Works Conditions", "Reporting Conditions", and "Plan of Premises".
The General Conditions include various requirements including:
- The works being constructed in accordance with application materials provided to the Authority on various dates or otherwise in accord with the WA Conditions;
- The expiry of the WA, being on written notification from the Authority that all works covered by the WA are complete or two years from the date of the WA[3]; and
- The requirement to obtain a planning permit in order for the WA to take effect.
The Works Conditions set out requirements for the works. These conditions focus primarily on the compost pad, leachate/first flush ponds and the prevention of impacts to groundwater. There is also provision that works are not to commence until the Environmental Improvement Plan (EIP) is approved by the EPA.
The Reporting Conditions require the EIP to be prepared in accordance with various requirements including[4]:
- Best practice procedures for maintaining aerobic conditions during the operation of the composting facility; and
- Monitoring regime, triggers and actions to prevent anaerobic events and off-site odour impacts.
The Plan of the Premises show a layout of the site including various physical facilities such as the office, ponds and car parking. It also indicates where various activities are to occur including waste receival, windrow cells, trommel and product storage.
Supporting documentation referred to in the General Conditions of the works approval include documents as to the layout and operation of the facility[5]. It is relevant to note that this document sets out that the composting process to be followed at the premises will be an open windrow composting process. Amongst other requirements, the document highlights the need for the aeration of windrows including turning to prevent the creation of anaerobic conditions. This documentation is based on the expectation that anaerobic conditions represents the danger of the generation of adverse odours.
It is clear from the documents that the works approval and ongoing operation in accordance with the works approval is based upon certain specified works and the operation of open windrow composting, and not some other composting process.
Refinement of the process in operation has come about through Pollution Abatement Notices (PAN) subsequently issued by the EPA particularly the PAN and amended PAN issued on 2 April 2007 and 2 July 2007 respectively. These refinements include forced aeration of the active phase windrows, use of 'bio filter covers' over windrows and the testing and further use of 'membrane covers'.
We are of the view that the process of capturing and treating odorants (ie waste) emitted from the composting windrows now proposed by ANL will alter its nature from that which it currently is to what it will become when treated through bio filters. We recognise that such alteration is likely to reduce odours and the possibility of it increasing them is quite improbable. Nevertheless, the provisions relating to the gaining of works approval does not distinguish between an increase and a decrease but merely refers to "alteration". It is the role of the EPA to access such alterations to ensure that the alteration does not compromise the achievement of policy outcomes or purposes of the Act, but in doing so it should direct its attention to the "alteration" and its affect, rather than simply the overall outcome when altered.
ANL proposes to change its process of composting from that in the existing works approval. The works approval relies on open air windrows with regular turning of material to ensure even treatment of all material at suitable temperatures for sterilisation and supply of oxygen to prevent anaerobic composting process. The new processes with covered windrows, forced aeration, collection of off-gases with treatment through a bio filter and a regime of monitoring of temperature and oxygen levels to achieve sterilisation and aerobic composting can be said to be an altered method using altered equipment.
Section 19C provides for works approvals to be amended by the EPA at its initiative. There is no statutory process for the holder of a works approval to apply for an amendment. Thus it was that ANL, in this case, could only invite consideration of amendment by the EPA. Such an invitation has been declined by the EPA. If ANL wants to pursue the new processes it must pursue a new WA.

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ANL proposes changes to tighten up its operation. The opportunity for raw material green waste and shredded green waste contributions to odour are sought to be considerably reduced. Raw material green waste would be spread, sorted and shredded on the day of receipt and during daylight time. This reduces its opportunity to contribute odour problems by it being retained for short periods only, and not at all during more sensitive and problematic night time conditions. However, receival, sorting and shredding would continue to occur in the open air. The arrangement seeks to considerably reduce the opportunity for such material to compost or turn anaerobic on site between delivery and shredding.
Shredded material likewise must not be left in the open at the end of a day's activity. It is to be stored overnight in the proposed new negatively pressured shed with the evacuated air treated by a bio filter system. In the absence of upset conditions, storage in those circumstances should prevent odour contributions to the ambient air.
When removed from the storage shed shredded material is to be promptly formed into windrows on concrete pads with ventilation grids within the pad and composted through stage 1 whilst being aerated and kept at the appropriate temperature and moisture conditions with those conditions being automatically monitored and adjusted. Furthermore, such active phase or stage 1 windrows are to be covered with permeable covers (Aerosorb covers) and impermeable membranes to vacuum capture off-gases for treatment through bio filters. Bio filters, being a proven technology, should, if properly operated eliminate odours whether aerobic or anaerobic or of plant oil or volatile organic origin or otherwise. This is considerably more sophisticated than current general practice at the premises, and greatly more sophisticated than the simple open windrows at stage 1 provided for in the current works approval. It eliminates the odour danger constituted by frequent turning of windrows during stage 1.
There would be only one turning of windrow material, and that would be at the breaking up of stage 1 windrows to form stage 2 windrows. The elimination of turning processes has been sought to avoid attendant odour releases, but this single turn cannot be avoided short of enclosing the whole of windrow composting in both its stages within a huge shed.
To minimise the odour danger of this stage it is only to be carried out in daytime and during favourable meteorological conditions. That will require the provision of spare windrow capacity so as to be able to delay this step during adverse meteorological conditions. Increased monitoring of temperature, oxygen concentrations, moisture and off-gas odour levels are proposed. Management arrangements and windrow retention capacity will be needed to accommodate this.
Maturation or second stage windrows are not assessed as being problematic but, in addition to covering and aerating, there can be scope for improvements in relation to them, should it prove necessary, up to the standard to be provided for stage 1 windrows.
Trommeling and finished product storage would continue to be in the open air as these aspects are assessed as not causing odour problems. Further steps, such as enclosure of trommeling are possible, but not assessed as being necessary or warranted.

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Forecasting odour result is not easy. The experience of this case graphically illustrates that. So does the history of steps that have been taken so far in relation to this site to eliminate odour nuisances, and this is reinforced by the wealth of expert evidence and comparative experience of experts that we have heard.
We would not insult the EPA by suggesting that its initial decision to grant the works approval was guesswork. Such decisions are called to be made on the basis of informed judgement, evidence, modelling, experience, literature and logic. We have considerable advantages at this stage, compared with the position of the EPA at the time it determined to grant the works approval. We consider our assessments to be rather further from guesswork than the EPA was able to achieve at the time of its issue of the works approval. However, we are nevertheless cautious about making extravagant or unqualified predictions of being certain of the elimination of odour nuisances or the reduction of the incidence of odour events beyond the site so as to not amount to a nuisance. As we have previously recounted in earlier reasons how the removal or neutralisation of one odour source has, in the past, sometimes revealed another. It is for this reason we have been cautious in our language and in our approach. It has led us to wish, if possible, to have nuisance abatement demonstrated in practice, and not just in theory.
We have already expressed an assessment that it is highly improbable that the proposed new works and procedures would aggravate odour nuisance problems. On the contrary, we can see no basis for supposing that the final result would not be at least as good as the present (admittedly unsatisfactory) situation. Indeed, it is highly probable that such steps would achieve at least some improvement. Would the improvement be sufficient to reduce the problem below the level of being a nuisance? Whilst improvement is probable, indeed highly probable, we have been cautious about concluding, at this stage, that that level would necessarily be achieved. There is sufficient sound reason for hope of achieving that goal, immediately or with some "tweaking" adjustments to warrant their implementation, and to enable their implementation. Really, whether the investment in terms of money and time is "warranted" is a matter for ANL, and it has chosen to pursue that course. It has done so knowing that such a course involves the risk that the proposals will not suffice and the further risk that the problems will prove intractable, that activities will be forced to cease and that the investment in the new proposals, along with investment in the original setup and other things done to date may be lost.
We do recognise that, even with the currently proposed enhancements, there is still a possibility of continuing odour problems, indeed continuing odour nuisances.
Of course the possibility of odour from raw material green waste being transported to the site has always been present, and accepted by the EPA from the very outset.
Once delivered to the site, open air spreading, sorting and mixing of waste prior to shredding may still enable some odour. Performance of these functions during daytime, but in the open air may still leave some scope for odour escape. Furthermore, as we understand the scheme of operation and the arrangements between ANL and the contributing municipalities, incoming waste is to be expected on a continuing basis.
Overnight storage of shredded green waste in a properly designed and constructed shed and with properly designed, constructed and operating discharge to bio filter should be effective, from an odour point of view.
Removal of shredded green waste from the shed and its formation into stage 1 windrows has to occur in the open air and cannot be delayed if more incoming green waste raw material has to be accommodated. Such risks as may be inherent in this are to be minimised by prompt action in day time.
It is only possible to minimise the risks of turning from stage 1 to stage 2, under the proposed arrangements, by performing this action in daylight and in favourable meteorological conditions.
Although it is assessed as unlikely, odours from stage 2 windrows, trommeling and finished product storage may be possible, although there is scope for further protection arrangements (currently assessed as unnecessary) to be implemented if they should prove to be necessary.

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The EPA refused the research, development and demonstration approval application and both invitations. It did so in a document dated 14 April 2009. Mr Finanzio pointed out that the decision in these respects was made "at the highest level". The document is signed by Michael John Bourke, the chairman of the EPA.
We find this to be a truly extraordinary document. ANL has expressed itself as being disappointed by the reaction of the EPA to the three proposed approaches for obtaining Environment Protection Approval for the proposed new building, works and procedures. Its disappointment is entirely understandable. In a further submission on behalf of ANL, it was said that it had embraced the strategy of implementing those proposals in good faith.
Mr Finanzio, on behalf of the EPA, speculated that we too might be disappointed by the reaction of the EPA. His speculation is correct. We are disappointed, and in particular because the response of the EPA has frustrated what we conceived to be the quickest and best means of alleviating the odour nuisance problems being suffered by people in Lilydale and Coldstream notwithstanding that there might be other matters needing attention in due course.
However, our disappointment is not limited to the frustration of that strategy but extends to the purported justification for that frustrating response. None of the three approaches are subject of review proceedings before us at present, and nor are reviews of that sort open. It would be otherwise if an application for a new works approval had been made, and that had been refused.
Our frustration and disappointment arises from the fact that the EPA well knows, and has known for a considerable time, the approach that we have favoured in relation to seeking, as a first priority, abatement of the nuisance. As we have put it, we have been seeking to facilitate the finding of a practical solution to a practical problem with due expedition having regard to the dilemma we have described.
Up until at least the end of the hearings in October, and really until the receipt of the EPA response document, we have understood the EPA to be in sympathy with that objective, even if it has not always agreed with some of the rulings or steps we have taken. What we have done in those respects we have done in the exercise of what we have conceived to be our duties, our responsibilities, our powers and our discretions.
Whether the EPA response document is right or wrong and whether the statements or justifications contained in it are warranted, the attitude taken by the EPA, and expressed in the document, clearly frustrates the strategy that we had been pursuing. Rightly or wrongly, it prevents the means adopted of seeking authorisation under the EP Act for the construction of the building and works proposed with a view of abating the nuisance. We will say something further as to our view as to the likelihood of that result. However, we consider the possibilities to be abatement of the nuisance, amelioration of the nuisance or neither abatement nor amelioration, but maintenance of the status quo. We definitely do not subscribe to a view that the proposed works and arrangements would aggravate the nuisance or make the situation worse. Neither do we consider pursuit of such a solution to have been based on little more than guesswork. We feel it unfortunate but necessary to reiterate the substantial number of days devoted to hearing and testing evidence as to the sources of odours and their possible amelioration.
We are of the view that this is not the sort of situation where there can be any guarantees. That is probably true in relation to nearly every decision made by the EPA itself in relation to authorisations such as granting works approvals or licences. ANL is aware, for it has been warned, that it takes a risk in committing further resources, financial and otherwise, to pursuing abatement by the means proposed. It has elected to accept that risk.
The attitude adopted by the EPA, as we say at this stage rightly or wrongly, prevents the construction of the building and works or at least seriously delays the achievement of those things. Insofar as such building and works and new procedures might abate the nuisance or ameliorate it, such advantages to the residents and other people in Lilydale and Coldstream are prevented or seriously delayed.
The EPA has refused the application and declined the two invitations. It has said that, so far as it is concerned, none of those three approaches are appropriate. Whilst being aware of the strategy we have sought to follow, and the desire of all the other parties to see prompt abatement of the nuisance, it has not suggested what approach would be appropriate. It appears that its attitude is tantamount to saying that the three approaches are no good and ANL should have applied for a new works approval. It has not said this in the document or otherwise. It is not even said that an application for a new works approval is not appropriate. It has not said that there is no way in which environment protection approval for the new building, works and procedures can be obtained. It may not wish to receive an application for a new works approval. But be that as it may, if the EPA is of the view that the correct approach would be to apply for a works approval, we would have expected it to indicate that, particularly to ANL, as soon as it formed the view that the three approaches were not viable. That would have saved time; time during which residents have continued to be exposed to the nuisance. That may or may not have resulted in an application for such a works approval being made in about the third week of April. In deference to the tribunal and the other parties, even if the EPA did not prefer such a step to be taken, we would have expected it to be suggested as soon as possible.
A new works approval is a possibility that has been mentioned, at least by ourselves. The EPA can take the view that ANL has its own legal advisors, and that is true. Alternatively, it could take the view that it will be helpful. If a new works approval application is a viable approach, it would be helpful if it were to be instigated as soon as possible, and if it is not viable or is thought not to be viable, the reason for that view could also have been timely expressed. Failure to do either seems at least to occasion delay, one way or another, in the abatement of the nuisance.
The previous actions of the EPA in relation to this site, and the manner of its participation in the hearings up until October appear to us to be indicative of an approach of seeking abatement. It may no longer take that view, or it may not favour the strategy that we have adopted, but we are nevertheless surprised.

[48]

The specified preconditions in that subsection are satisfied. The EPA has received an application for a licence in respect of premises for which a works approval was obtained. It is common ground that the works have been satisfactorily completed in accordance with the works approval and the EPA has confirmed that in writing.
ANL maintains that the direction in this subsection is administrative and mandatory. It says that the EPA does not have a discretion in the matter. On the contrary, if the specified preconditions are satisfied, as they are admitted to be in this case, the issue of a licence is mandatory and not subject to further deliberation or exercise of discretion by the EPA. The EPA cannot, in the circumstances, refuse to grant the licence sought.
The EPA holds a contrary view and maintains that in spite of the wording of the subsection, and in spite of that wording not reserving any discretion to the EPA, it nevertheless has a right and or duty to deliberate on whether it will issue a licence and a power to refuse to do so.
At first impression, the EPA position on this question appears to be a surprising one. It is contrary to what appears to be the plain meaning of the words in the subsection. Indeed the EPA admits and agrees that in what it calls "an ordinary case" the issue of a licence will be automatic and administrative. For the purposes of the argument it raises in relation to this issue, it has invented the concept of the "extraordinary case", as distinct from the "ordinary case". The current case is said to be an extraordinary one. For extraordinary cases, it is said that the ordinary meaning of the words and the administrative, non-deliberative and mandatory result does not apply.
We note that the section does not contain any distinction between ordinary and extraordinary cases, nor does it lay down a different procedure or different provisions in relation to extraordinary as opposed to ordinary cases. It does seem to us that if such a distinction as is argued for on behalf of the EPA was in fact intended, the wording of subsection (7) could, should and would have spelled that out in terms.
The EPA calls for significant inferences to be drawn that subsection (7) does not mean what it appears to say, and that it contains inferred distinctions that it does not express. Furthermore, these distinctions are very significant ones. It is a significant distinction between deliberation on whether an authorisation like a works approval or a licence should be granted on the one hand, or the administrative step of issuing a document evidencing the existence of such an authorisation without such deliberation (or with such deliberation having occurred previously) on the other.
In determining this issue we will need to consider, not only the purposes of the EP Act, but also its structure and the scheme of its provisions. That will include whether some of its provisions provide for deliberation and decisions on the merits whilst others do not, for example, because such deliberation and decision have already previously occurred.

[50]

The EP Act is a complex and difficult piece of legislation. It deals with sometimes complex and difficult technical issues. It has been in existence for nearly 30 years. Over those three decades, it has been repeatedly amended and patched to deal with problems and deficiencies as they have become apparent. That has made the Act even more complex and difficult, and it does not mean that every amendment blends harmoniously into the scheme of the Act with no anomalies or unintended consequences. Section 20 (7) is itself an amendment. It is part of a scheme intended to make the operation of the Act more efficient, and to avoid unnecessary delay.
Normally a works approval is necessary for works in association with scheduled premises like this composting facility. It enables the EPA to review what works and facilities are intended and how they are to operate. The EPA does not grant the works approval until it is satisfied that to do so will not result in contravening relevant policies (ie SEPPs). It is intended that the premises will then operate in accordance with the works approval.
A works approval was obtained in relation to these premises. At that stage no licence was required. It is possible for there to be a situation where a works approval is required but no licence, or for there to be a requirement for a licence where there has been no works approval. So far as this composting facility is concerned, when it started there was a need for a works approval but no licence. No licence was required because the regulation(s) that would otherwise have meant that a licence was needed was subject to an exemption.
At the time composting started on this site, and continuing thereafter for some time, no licence was needed and the EPA could control the site through the works approval, through amendments to the works approval, requiring compliance to the works approval and by the issue of pollution abatement notices. Such notices, if successful, could give rise to subsequent amendments to works approval.
However, during the course of the life of this facility an amendment was made to regulations whereby the exemption in relation to green waste composting facilities was removed. Thereafter, a licence became necessary. As far as we are aware the only transition provisions in relation to that was that existing premises, like this one, were given 12 months to obtain a licence. That implied that they would be able to continue operating. It also created something of an anomaly.
The scheme of the Act, including s 20 (7), is that there should be a works approval, the works should be carried out in accordance with the works approval, the EPA should verify that that has been done, and then pursuant to what the EPA has called an ordinary case, a licence will automatically be granted. The licence can contain conditions, but not conditions that are inconsistent with the works approval.
The issue of the licence causes the expiry of the works approval. Thereafter the EPA can still maintain regulatory control of the premises although this will be through the licence, not the works approval. There are provisions for amending licences. Furthermore, there are other provisions in this connection, including the possibility of issuing and amending pollution abatement notices and, in some circumstances, a research development and demonstration approval (RDD) under s 19D.
Of course, it is always possible that after a so-called "ordinary case" facility has received its licence, and commences operation in accordance with the licence, a situation may arise where emissions from the site do not conform to relevant State Environment Protection Policies and/or create nuisances. If that happens, a situation arises that requires rectification. It presents a problem to the EPA and to the operator. But they are problems that administratively have been provided for. Licences can be amended, suspended or even revoked under s 20 (9).
In this present case a works approval was granted and works were completed. The evidence demonstrates that operation in accordance with the works approval produces contravention of policies and severe odour nuisances. In the absence of a licence, the basic regulatory document is the works approval. When the nuisances arose, it confronted the EPA and the occupier with problems that needed rectification. Some attempts have been made to rectify them but they have yet to be wholly successful (the leachate pond odours having been ameliorated).
After the premises commenced processing green waste, and after nuisances arose, the exemption from the need for a licence was repealed so that a licence became necessary. The EPA now seeks to resist the issue of a licence in accordance with the scheme of the legislation because it is now known that there are continuing nuisance conditions and there are contraventions of relevant SEPP provisions. The transition provision of allowing 12 months to obtain a licence provides no guidance as to what is to happen in the circumstances. On the face of it, the licence is to be issued pursuant to s 20 (7). It is to contain conditions that are not inconsistent with the works approval. The conditions can reflect the works approval or deal with other matters as long as there is no inconsistency with the works approval.
If a licence is issued under s 20 (7), and there are nuisance conditions and inconsistency with SEPP provisions, the situation is effectively the same as the so called "ordinary case". The ordinary case being, in this instance, the obtaining of the works approval, the carrying out of the works, confirmation that they are complete and satisfactory, commencement of operation and the arising of a nuisance. Such nuisance and failure to comply with policy requires rectification. There is no practical difference in that situation compared with the issue of the licence in the present case with continuing nuisance and failure to comply conditions.
Mr Finanzio has pointed out the difference between the "long procedure" and the "short procedure". The long procedure is where a works approval or licence application is required to be advertised to various authorities and the public and for there to be deliberation as to whether it is to be granted or issued. For the long procedure there is a time limit of 60 days. The deliberation is to decide whether, on the merits, the authorisation (works approval or licence) should be granted.
The short procedure is the one that Mr Finanzio says applies under s 20 (7) in the ordinary case; ie the administrative, automatic step of issuing a licence in 21 days.
Where a works approval has been granted which has gone through the long process, the short process will apply for the issue of a licence. The long process does not have to be gone through again.
The short process does not involve giving notice to authorities, notice to the public or deliberation. It involves the administrative step of issuing the licence to be done within 21 days. The amending legislation that brought s 20 (7) into the Act originally provided only 7 days. Parliament extended that to 21 before the Bill was passed, but both time limits are indicative that this is not intended to be long process or deliberative like the 60 day requirements.
The distinction between long process and short process is not limited to s 20 (7). Looking through the Act there are a number of long process procedures where 60 days are required, and other short process ones where 21 days is specified. The former involve notice and deliberation, the later are administrative, non-deliberative and mandatory.
The deliberative long process matters involve significant decisions on whether approvals are to be granted. There is, in fact, an intermediate semi-deliberative procedure that arises in some instances. Where an applicant has obtained the works approval or amendment to a works approval and claims to have completed works in accordance therewith, the EPA, having received notice of this, has 45 days to determine whether it is satisfied that such works have been completed satisfactorily. There is a degree of deliberation in that, but limited to whether predetermined requirements have been fulfilled.
Section 20 contains examples of all three of these things. Section 20 (6) is a long process. It reads:

[56]

Again, it can be seen that there is scope here for deliberation, although upon a more limited question than that involved in subsection (6). Again, the provision specifies the alternatives and gives the authority the power and duty to deliberate and decide between them. Again, this is in contrast to subsection (7). In fact that view is further strengthened by the fact that after taking the deliberative steps required in s 20 (7A) the necessary, administrative step of subsection (7) is invoked to complete the administration of issuing a licence.
As we have already observed, these subsections of section 20 are not the only places in the legislation where these so called long or short procedures, 21 days or 60 days, or for that matter the intermediate one of 45 days, apply. We think that the distinction here, and elsewhere, is deliberate. In saying that we include the distinction between provisions like subsections (6) and (7A) that specify the choice to be made and the choices available, and subsection (7) which merely directs what is to be done. We believe the distinction is not only deliberate, but in accordance with the scheme of the legislation.
We note, by the way, that subsection (8) specifies requirements in relation to the long procedure. Such long procedure requirements are not limited to that subsection.
ANL maintains that subsection (7) means what it says, and that this meaning is what the words plainly say. ANL argues that the word "shall" in this context means "must". The requirement is mandatory and not deliberative or discretionary.
There was argument before us in relation to s 45 of the Interpretation of Legislation Act 1984 specifying that, since the enactment of that provision, "shall" is mandatory and "may" is to be read as discretionary. The provision does not say "in the absence of a contrary intention" or words to that effect. For legislation after the enactment of the section, it appears to be mandatory that such words be interpreted in accordance with the indications of that section. We need not go into whether there is still scope for interpretations to the contrary.
Mr Finanzio has pointed out to us that the enactment of s 20 (7) EP Act was prior to the enactment of s 45 of the Interpretation of Legislation Act. As such, that section does not apply to it. The common law position, or the Acts Interpretation Act 1958, if it threw light on the question, would apply.
We accept that (at least but for s 45 of the Interpretation of Legislation Act) "shall" is sometimes indicating something that is mandatory and sometimes something that is discretionary. Generally it is mandatory, but may, in some circumstances be discretionary.
That does not alter the situation that it will normally be correct to read "shall" as mandatory. It does not mean that, in s 20 (7), the word is to be read in any other way.
Mr Finanzio, on behalf of the EPA, must argue on the basis of implications. He refers to the purposes of the legislation which include control, regulation and prevention of pollution and the like. He says provisions should be interpreted so as to achieve the purposes of the legislation and if an interpretation might be said to assist, in some way, an aspect of achieving those general purposes, it should be read in that way.
That may put it in too simple a way. It is the purpose of the particular provision that must be looked to. This provision is part of a scheme within the Act, and is repeated within the Act with the distinction between long and short procedures and between deliberative and administrative decisions. There is more to it than saying it might be handy if we could invent an unusual case where the provisions of the subsection do not mean what they say and mean in relation to a so called "ordinary" case. It is to be noted that the EPA admits that, in an ordinary case, subsection (7) will be administrative, not deliberative and discretionary. A too generalised reference to the overall purposes of the Act, rather than attention to the particular purpose of the particular provisions, can mislead.
The other major argument advanced for the EPA on this point refers to s 20C EP Act. That section deals with the consideration of policy in relation to the granting of authorisations. Authorisations, for the purposes of that section, includes works approvals and licences.
Subsection (2) of s 20C provides:

[58]

Subsection (3) goes on to provide that the EPA may refuse to issue, transfer or amend an authorisation if that would be contrary to, or inconsistent with, any applicable policy, or likely to cause or contribute to pollution or certain other things.
How, it might be asked, is this important provision to be effective unless s 20 (7), for example, is to be read as deliberative and discretionary so that the EPA can grant or refuse in accordance with s 20C?
Section 20C is an important provision. Furthermore, its application implies deliberation and discretion. However, it only applies that in relation to actions that call for deliberation and discretion, and not to actions, like the issue of a licence under s 20 (7) that is administrative and mandatory. Section 20C will be important in relation to deciding whether, in the course of the long procedure, a works approval ought to granted in the first place, or a licence ought to be granted where there is no works approval. The argument of the EPA begs the question as to whether a particular action is enjoined on the EPA by the legislation. The argument assumes it is is deliberative and discretionary as opposed to administrative and mandatory, when the real question is whether it is the one or the other.
We are of the view that s 20 (7) falls into the later category and that ANL is right in saying that it is entitled to the issue of a licence.
In our discussion of this issue as to whether s 20 (7) is mandatory or discretionary, we have not dealt with every aspect or every submission made in that connection. We do not really think it is necessary to do so in the circumstances. What we have said is the substance of the reasons for our decision on that point.
However, that may not get ANL to its intended destination. Such a licence is to be issued on the basis of the works approval and to have conditions not inconsistent with the works approval. This particular works approval contains conditions specifying, in terms of plans and specifications, what works and procedures are to be employed. What is going on upon the site at present, and what is contemplated with ANL's intended building, works and procedures, exceed and differ from what the works approval requires. There is, after all, something in a submission made by Mr Finanzio that it is not now open to issue the licence sought, with conditions requiring everything that is now on or intended for the site, where those things are in fact contrary to and inconsistent with the works approval. Further they have not been assessed in a long procedure works approved application or any equivalent thereof or alternative thereto.
It may seem absurd or anomalous to issue a licence based on the existing works approval where it has now been demonstrated that operation in accordance with the works approval produces inconsistency with the SEPP and, perhaps much more importantly, serious odour nuisances. It would appear that if such a licence is granted it might immediately need amendment, or perhaps even cancellation. It seem anomalous to issue a document if it immediately requires rectification.
If so, that anomaly arises from the lack of satisfactory transition provisions to cope with the situation. It is not so much transition provisions in relation to s 20 (7). The true problem arises from the amendment to regulations, after commencement of operation on site, and after nuisance has arisen, to then require a licence. Perhaps the works approval should have been amended prior to the application for a licence to include works and procedures to cope with the problems that arose. If the works approval was now in a satisfactory state, there would be no problem, or even question, about issuing the licence now being sought. It could have conditions that would not be inconsistent with the works approval.
We note, by the way, that it is this question of the licence that is before us. The EPA has not amended the works approval, at least since operations started. It has made some use of the pollution abatement notice procedures, but could have, and could still make greater use thereof. There is nothing in relation to the EPA proceeding that could lead us or empower us, for example, to close down operations. The only power we have in that connection is one that has arisen incidentally by means of the planning enforcement order application.
The EPA, as we understand it, has power pursuant to the pollution abatement notice procedures to require changes and alterations, or, if it thought fit and necessary, to close down the operation temporarily or permanently. It has not exercised any of those powers. We do not have those powers under environment protection legislation, and we have not understood the EPA to be calling upon us to in fact close down the premises, or the operations thereon.
As to the apparent absurdity that we have mentioned, we have already pointed out that the situation of a licence issued on completion of works in accordance with the works approval in a so called "ordinary case" which then turns out to give rise to nuisance or contravention of SEPP provisions will require rectification. It is not really different from the situation that would arise if a licence was granted now on the basis of a current works approval where it is not known that a nuisance may arise. It still requires further rectification.
If the new works and procedures contemplated by ANL to abate the nuisance go beyond the existing works approval, and are inconsistent with it, then there is an argument that the so called short procedure should not apply to such modifications. The long procedure, with its giving of notice and deliberation, and consideration of various things including s 20C, have not been applied to these new proposals.
No doubt ANL was looking for a means of authorising the proposed new works. This gave rise to its three approaches, but, as we have mentioned, a fourth approach would be to apply for a new works approval.
That does not necessarily mean that the other three were all inappropriate, notwithstanding the view taken by the EPA in relation to them. The difficulty with them is that there is no appeal or review of any response the EPA might make. Something authorised and required by a pollution abatement notice, if a pollution situation is in existence, might then become the subject of an amendment to the works approval if satisfactory. Furthermore, an RDD approval can take the place of the works approval in certain circumstances, and may give rise to an amendment to a works approval in due course if the things being researched developed and demonstrated prove to be successful and satisfactory.
We have been referring to the "current" works approval. That is because we regard the only works approval that has been granted in relation to this site as being current. The EPA may have purported to include a condition pursuant to which it thinks the works approval has expired, but that matter is governed by s 19CA of the PE Act, not by a condition that is inconsistent with that section.
Subsection 1 of s 19CA enables the EPA to specify a day on which the works approval "shall" expire "if the works in respect of which the works approval is issued have not commenced by that date to the satisfaction of the Authority". That subsection applies to end a works approval where the works do not start by a certain date. The works in relation to this works approval have started and been completed.
Subsection 2 provides that a works approval shall expire in any one of several circumstances. The first of them again relates to commencement of works. The second one is if a new works approval is issued in substitution for the existing works approval. That has not happened here.
The third circumstance arises under paragraph (c) of s 19CA (2). That paragraph reads:

[63]

The Yarra Ranges Shire Council, being the responsible authority for the enforcement and carrying out of the Yarra Ranges Planning Scheme and planning laws in relation to its municipality, has applied for an enforcement order in relation to the composting facility. To obtain an enforcement order it is necessary for the applicant to demonstrate a contravention of the planning laws. In this case the responsible authority relies on an alleged contravention of condition 14 of planning permit YR-2004/164 issued 9 July 2004. That permit allows the use and development of the land for a green waste transfer station and composting facility. Condition 14 reads:
1. No odour from the premises shall cause a nuisance to the adjoining or nearby properties to the satisfaction of the Responsible Authority.
There are difficulties about the wording of this section. The phrase "to the satisfaction of the Responsible Authority", is generally a useful one. It creates the possibility of certain things being considered later and dealt with by means of so called secondary consent when planning permit conditions are being imposed. A condition might require something to be done to the satisfaction of the responsible authority. This can save having to try and spell out every contingency. Section 149 Planning and Environment Act 1987 (PE Act) affords a remedy if there is subsequently a dispute about what the responsible authority should be satisfied with.
There is now statutory authority for the imposition of such conditions. It is found in s 62 (2) (a) PE Act. That provision authorises the responsible authority to include a condition that specified things must be done to the satisfaction to the responsible authority (or certain other authorities that are specified).
Such conditions have been imposed in planning permits for decades. Prior to the enactment of a provision like s 62 (2) (a) there was room for doubt as to whether such conditions were valid. Were they vague or uncertain, or did they imply an illicit delegation? If the responsible authority was imposing the condition, then it was reserving to itself a later decision on the reserved question. However, what if the matter had come to the tribunal on appeal or review, and a permit was being granted, and the condition was being imposed, by the tribunal? In those circumstances, would it be an illicit delegation for the tribunal to reserve a final decision on some detailed point or relative assessment, to the responsible authority?
Such problems have been put to rest with the enactment of s 62 (2) (a) PE Act.
However, that does not mean that all problems in relation to the use of the phrase "to the satisfaction of the responsible authority" had been resolved. In fact, it is quite common to see superfluous or inappropriate uses of the phrase in the framing of planning conditions.
It is common for the first condition in a planning permit to require revised plans to be submitted and approved by the responsible authority. Such conditions often specify modifications that are to be made before the plans are approved. These are frequently set out in paragraphs to the condition, and often say things like that some specified thing is to be to the satisfaction of the responsible authority. Since the paragraph is specifying what is to go into the plan, and since the plan has to be approved by the responsible authority, such use of the phrase is redundant. The responsible authority should not, and presumably, would not approve the plans unless it is satisfied with the plan, including the specifications of the paragraph.
Another example is where a condition says that, for example, a plan is to be "submitted" to the satisfaction of the responsible authority. What is really meant is that the plan should be to the satisfaction of the responsible authority, not that the submission of the plan should be satisfactory in that way. However, that is what the condition actually says.
It seems that some people, drafting permit conditions, assume that the condition will be improved by the inclusion of the phrase, whether appropriate or not. Perhaps it is assumed that it will always strengthen the position of the responsible authority, but the present case is a good example of where that is not so.
What does condition 14 actually mean? That question was speculated upon in some preliminary hearings in relation to these cases, and the presiding member had something to say on the topic in paragraphs 10 and 11 of the remarks attached to orders made in a document dated 12 February 2008. What is it that the responsible authority is to be satisfied with, or dissatisfied with? It was mentioned there, without deciding the point, that the condition might be meant to mean that, to the satisfaction of the responsible authority, no odours from the premises are to cause nuisance to adjoining or nearby properties. It was also observed that the condition could be better drafted, and that this is not what the condition in fact says.
On a reading of condition 14, its ordinary meaning is that the subject matter of satisfaction or dissatisfaction is the nuisance. What the condition seems to actually say is that there can be odour nuisances to the satisfaction of the responsible authority, but not odour nuisances that the responsible authority is not satisfied with. That is not likely to be the intended meaning.
In previous reasons attached to interim determinations, we have expressed the view that the word "nuisance" have a meaning in law and in English that is sufficiently ascertainable to be the subject matter of a condition. It is certainly true that it is an expression quite often employed in planning permit conditions and we are not aware of an authority suggesting that its use renders the condition invalid or unenforceable. We consider the contrary to be the case.
What is the situation where condition 14 contains this phrase? If it is necessary to ascertain what the responsible authority is satisfied with, must there be a resolution of the responsible authority, or a decision under delegation (if that power can be delegated) declaring satisfaction or otherwise? After all, the council of the responsible authority is a body of people and ordinarily can only express itself by passing a resolution. There is no resolution as to condition 14 relating to odour nuisances from these premises.
Condition 14 would be far better if the phrase did not appear in it. Its presence merely limits the effect of the condition, and obscures its meaning. It also makes it more difficult of enforcement insofar as it apparently requires a resolution from the responsible authority before a contravention can be demonstrated.
However, in the present case we are not really hampered by these problems, notwithstanding that we think the permit ought to be amended to delete the phrase.
In this case there is a severe and admitted continuing intermittent odour nuisance. In this case the nuisance is so severe that there is no need of a resolution by the responsible authority saying that it is satisfied or dissatisfied with the nuisance. The nuisance is sufficiently severe that no responsible authority, acting reasonably in relation to this condition could be satisfied with the nuisance. Since nuisances are illegal, we are not quite sure what sort of nuisance the responsible authority might be satisfied with, but we need not go into that. To be satisfied with this nuisance would be so called "Wednesbury unreasonable". This notion of "Wednesbury unreasonableness" derives from an English court decision that is well known in administrative law, namely Associated Provincial Picture Houses Ltd v Wednesbury Corporation[6].
It is so unreasonable that no responsible authority, acting reasonably, could come to such a conclusion. Where there is an administrative discretion to be exercised by a responsible authority, the court will not interfere with the exercise of the discretion to substitute its own view of what might be preferable, provided that the decision made by the responsible authority was reasonably open to it. Here satisfaction with this nuisance is just impossible. Accordingly we infer that the responsible authority is not satisfied and that the condition is contravened. We are satisfied, in this case, that there is a nuisance, that it cannot be justified in terms of condition 14 on the basis of the responsible authority being satisfied with it and that there is, accordingly, a contravention of condition 14 and the planning permit. Accordingly, we conclude that it is open to us to make an enforcement order, in spite of the complications of condition 14, in the absence of any other constraint on the powers conferred on the tribunal by s 114 PE Act.

[64]

There are two request proceedings under s 87 PE Act before us, although there has, apparently, been no application for a new permit.
The request for cancellation is brought by the responsible authority. The request for amendment is the most recent of the proceedings before us, and has been commenced by ANL.
For a request under s 87, whether for cancellation or amendment, the tribunal must be satisfied as to one or more of the grounds in s 87 (1).
The ground in s 87 (1) (c) is that there was a material mistake in relation to the grounds of the permit.
We do not have any difficulty in being satisfied that there was indeed a material mistake in relation to grant of this permit. We perceive it to have been a material mistake to proceed on the basis that the composting facility, conducted on the basis of and in accordance with the original works approval, would not occasion odour nuisance. That has proved to be a mistake, quite a serious one, and clearly a material one. We infer that the responsible authority would not have granted the permit if it had not been mistaken on this point. Indeed condition 14, however it is interpreted, implies that the responsible authority thought that the facility could and should be conducted without odour nuisance or at least without odour nuisances not to the satisfaction of the responsible authority. It was a mistake to suppose that was possible on the basis of the works and procedures that were approved.
This does not necessarily imply blame on behalf of the responsible authority. Mistakes can be material without being careless or culpable. If the responsible authority relied on the EPA in relation to this question, or the works approval, that does not mean that it was unreasonable for it to do so, and it certainly does not mean that the mistake was less than material.
The ground in s 87 (1) (d) is material change of circumstances which has occurred since the grant of the permit. We also think this ground is satisfied. It is surely a material change in circumstances that the composting facility has been set up with its buildings and works and put into operation in accordance with the works approval, but has also generated, and continues to generate odour nuisance.
We rely on those grounds, rather than that in s 87 (1) (b). That ground is substantial failure to comply with the conditions of a permit. Certainly some previous tribunal decisions have taken a somewhat limited view of the scope of this ground, see Springvale v Kydas[7], Cull v Stonnington CC[8] and discussion at [10,035.25] in Planning and Environment Service Victoria published by Butterworths, Law publishers. In this case we have no need to rely on that ground, or to discuss it further.
In past hearings in relation to these cases there has been discussion as to whether it is open to amend the permit, rather than cancel it, on the request made by the responsible authority for cancellation. Mr Appudurai on behalf of the responsible authority resists any such course notwithstanding that such things have been done in other cases on the basis that the greater, namely cancellation, includes the lesser, namely amendment.
We do not imply that such an approach is inappropriate. It is just that, in the present circumstances, we have no need to rely on or utilise that approach. That is so now because ANL has commenced its own request proceedings seeking amendment.
At the latest hearing on 20 and 21 May 2009, Mr Appudurai invited us to adjourn his client's cancellation request for a substantial period such as six months whilst submitting that we should make an enforcement order. We are content, at this stage, to grant such an adjournment. Probably the most convenient way of doing that is to adjourn the cancellation request to an administrative mention in six months time.
Initially objections to the cancellation request were raised on behalf of ANL on the basis of s 88 PE Act. That section imposes some time limitations in relation to the granting of amendment or cancellation where the permit relates to development or works that have been completed or substantially completed. If the buildings or works have been completed or substantially carried out, such a permit cannot be cancelled or varied.
However, s 88 (c) provides that cancellation or amendment can occur at any time if the permit relates to the use of land.
This permit does relate to the use of land and so can be cancelled or amended. We do not think that this power is obstructed by the permit also relating to buildings and works. A permit document can contain more than one planning permission. It is not unusual for there to be several, including permission for use and also permission for development. At the very most, the constraints of s 88 (a) and (b) should apply only to the permissions for buildings works or development and conditions specifically and solely related thereto. It would not only be contrary to the section, but contrary to common sense and convenience, if the completion of a building for which permission was granted should thereby freeze use aspects of a permit which are intended to have and retain the possibility of being cancelled or amended.
We are consequently of the view that s 88 does not bar cancellation or amendment of the permit.
In any event, Ms Forsyth, on behalf of ANL, indicated that the company no longer presses this point. It would, of course, be contrary to their new request for amendment.
Mr Appudurai submitted that we should not entertain an application for amendment of the permit pursuant to s 87 PE Act. He points out that more recent amendments to s 72 have enabled a wider scope for amendments to be made by the responsible authority with the opportunity for a review by the tribunal. Such a procedure is not open where the original permit was granted by the tribunal, but this one was granted by the responsible authority, without review by the tribunal.
As we understand his submission, it is that he says we cannot, or at any rate as a matter of discretion, should not entertain amendment requests under s 87 where it has become possible for the requestor to apply to the responsible authority, in the first place, pursuant to s 72.
We understood him to submit that this would usurp the role of the responsible authority as the primary decision maker and to allow the review body, namely the tribunal, to in effect take over that role.
We do not agree with this approach. We do not consider it to be good law and we find no compelling reasons as a matter of discretion why it should be adopted in relation to the present proceedings.
The Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) and the PE Act, bestow upon the tribunal jurisdiction for certain review proceedings, and also certain original jurisdiction. Requests under s 87, like applications for enforcement orders under s 114, come within the original jurisdiction of the tribunal. Those powers have been deliberately granted to the tribunal and have been in existence since the enactment of the PE Act, or at least since it came into operation on 16 February 1988.
We do not think that much more recent amendments to s 72 were intended to, or have the effect of, in any way constraining the jurisdiction granted to the tribunal under s 87.
It is obvious enough that s 87 grants original jurisdiction for both cancellation and amendment whereas s 72 is restricted to amendment. Furthermore, as already observed, amendment under s 87 can extend to the amendment or cancellation of permits granted by the tribunal. Proceedings of that sort are beyond s 72.
We see no justification for reading down s 87 on account of the new version of s 72 that has been enacted, or of creating the sort of distinctions within the original scope of s 87 that such a reading down would imply. We do not think this submission is good law, and we do not adopt the suggested approach as a matter of discretion. That does not necessarily exclude the tribunal deciding, on the particular circumstances of a particular case that, as a matter of discretion, relief by s 87 might be denied because there was an opportunity under s 72. We will not speculate here on the characteristics of such a case, as we have not managed to think of an example that could be appropriate.
Mr Appudurai also raised some arguments about the concept of "transformation" in relation to planning. Perhaps we have covered what he wanted to raise in this connection, but we will say something further in case it is necessary.
If he is concerned that the construction of the new shed and the implementation of the new works and procedures would amount to a transformation of the site or its use, we disagree with him.
It is probably true to say that the first or main introduction of the concept of transformation into planning arose with the Supreme Court decision of Addicoat v Fox (No. 2)[9]. In those days the powers of the then tribunal to amend, adjourn, give notice of amendment and to order costs in relation to thereto were limited. It would be a problem if someone applied for a permit for one thing and then amended the application to make it an application for something else after notice had been given and the opportunities for objection had passed. Whilst some scope for adjustment and amendment was recognised, such changes as might amount to a transformation could not be countenanced. In fact the scope for changes was fairly robust. The changes in the Addicoat case were considerable in terms of relocating and reorienting buildings, but were not held to be a transformation. On the other hand, clearly one could not apply for a shop and then, without notice, transform it into an application for an abattoir.
Subsequent amendments to the planning legislation extended considerably powers to amend, give notice, adjourn and order costs. The existence of these powers, and their use in suitable circumstances, enables the tribunal to cope with significant changes whilst still affording justice to parties and potential parties. It might have been anticipated that this would render obsolete previous arguments about what did or did not amount to a transformation. Perhaps it is now possible, though not necessarily expedient, to allow a transforming amendment to a permit application with appropriate use of those powers. However, it is surprising how often minor and even trifling alterations are alleged to be transformation.
Perhaps Mr Appudurai is concerned here that alterations to conditions might transform an existing permit, rather than a permit application of which notice has been given. Be that as it may, we make it clear that, in our view, the proposed changes here, including the proposed new shed and the other works, and associated changes in proposed procedure, do not amount to a transformation of the existing permit or the use allowed by it. These proposals would be variations, elaboration and/or improvements on methods with a view to avoiding current nuisances, but would not be a transformation.
The proposed new building and works require development planning permission, but not use permission. That might be achieved by a new permit application. However, where there is a continuing use permission, there is certain administrative convenience in achieving such changes by means of permit amendment, rather than new permits. Such a so called "omnibus" permit approach can avoid the sort of muddles that have accumulated over the years in relation to planning permissions for particular properties. It is not very unusual to encounter a whole serious of purported planning permits dating back over many years or several decades granting various permissions for use and or development of land. It becomes difficult when there are inconsistencies between these permit documents, and even more difficult when some refer to earlier ones that cannot now be found. All this makes it very difficult for land owners and occupiers, the responsible authority and other members of the public with an interest in such matters to work out what is permitted, what is not permitted and what requirements or restrictions are imposed by way of conditions. This is an undesirable situation and can become untenable in relation to enforcement.
None of this means that the rights of objectors or potential objectors should be overlooked. That has certainly not been done in relation to the new ANL request proceeding. Ample notice has been given and, indeed, some response has been received. All this was done to ensure fairness, and it enables us, with fairness, to amend the permit if we conclude that that is appropriate. Such an approach is both legal and expedient in the circumstances, rather than requiring a new permit application. In some circumstances that might be appropriate but here, it would be unduly inconvenient and doctrinaire.
Of course none of this means that the responsible authority has been denied an opportunity to express its views in relation to these matters. They have been debated at length through lengthy hearings.
We consider that condition 14 ought to be amended to delete the phrase "to the satisfaction of the responsible authority" rather than that the condition should be removed altogether.
ANL would like to see it removed and replaced with another condition requiring ANL to construct and carry out the building and works depicted in the plans and specifications for its proposed improvements. In our remarks in our interim decision of March 2009 we expressed a tentative view that it was not apparent to us, having regard to what is proposed, and to the site location and nature of the land, that there was any reason why planning permission for such works should not be granted. In this connection, we distinguish planning permission for the building and works from environment protection authorisation for them.
It is surprising, in these circumstances, to hear Mr Appudurai say that the responsible authority has objections, on their planning merits, to the proposed building and works; and that the responsible authority would seek to be further heard in relation to those planning merits, notwithstanding the opportunity of the hearing on 20 and 21 May 2009. We are not clear as to why he would not have dealt with the question of those planning merits at that time. We note the further written submissions received after further public notice of the amendment request was given.
Whether or not we should now "draw a line in the sand" in that respect, and say that the responsible authority has had its opportunity, we would not wish to deny the responsible authority another opportunity where its advocate urges us that such opportunity is needed. In these circumstances, we will refrain from making a decision on the planning merits of the proposed building and works for the time being. We will give directions that, if the responsible authority wishes to be heard further, but limited to the question of the planning merits of the proposed buildings works, it should advise the tribunal in writing to that affect, with copies to the other parties who have appeared or been represented at the hearings in relation to these cases, setting out the grounds upon which it would intend to rely in relation to such questions of planning merit.

[66]

We find that the issue of the licence under s 20 (7) EP Act is mandatory, not discretionary. However, such licence is based on the existing works approval as amended which does not encompass the new building works and procedures now contemplated by ANL. Those things require approval and, if the EPA persists in its declining of the invitations and RDD approval, they will require a works approval if no other means of obtaining such authorisation can be devised.
This raises the question of the form of order and licence conditions that would be appropriate. Previous consideration in relation to draft conditions was on a different basis to the one we have now found to be appropriate. Previous consideration has included the notion of there being license conditions going beyond the existing works approval, and including further remedial buildings, works and arrangements. We have now determined that it is the existing works approval, as amended that is relevant.
We will give directions for the preparation of a draft order and draft conditions on that basis.
We note that, since the amendment to the works approval there have been two pollution abatement notices, one of which has been amended. If the EPA was so minded, it might amend the existing works approval to encompass the things required by those pollution abatement notices. That is because, on our finding, the existing works approval continues in operation, and will continue until a licence is issued. Thus the EPA might amend the works approval and, having given notice of the amendment, prepare and submit suggested draft orders with draft conditions that take account of those amendments.
Indeed, if the EPA was so minded, it might make other amendments to the works approval in that way, before a licence is actually issued.
We accept the submission that the permit cancellation request of the responsible authority should be adjourned, and we propose to adjourn it to an administrative mention in early December 2009.
We will adjourn further consideration of the request by ANL under s 87 PE Act for amendment of the existing permit pending an indication from the responsible authority as to whether it still wishes to be further heard in relation to the planning merits of the proposed building and works. Such notification should include the grounds it proposes to rely on in that connection and its estimate of time that would be required to hear it on those questions and any reply thereto. A hearing in that connection would provide an opportunity to settle the terms of an order to finalise the Environment Protection Act review and such request proceeding, depending upon our final decision in relation to the later.
In relation to the enforcement order application, we propose to make an enforcement order that ANL cease receiving new green waste raw material for processing on the site by four months from the date of our order and that it then process all compost and compostable material on the site and clear the site of such material within three months thereafter and that, thereafter, no further composting or material for composting be brought onto the site or processed on the site except with the consent of the responsible authority or, alternatively, in accordance with a further order of the tribunal.
In connection with what we have said in the last foregoing paragraph, we note that s 121 PE Act grants the tribunal power to amend or cancel an enforcement order.

At a glance

Court

Decision date

Source

Judgment (73 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Yarra Ranges SC v Australian Native Landscapes Pty Ltd (includes Summary) (Red Dot) [2009] VCAT 1025 (25 June 2009)