Following the Victorian State Government’s recent abandonment of the proposal to develop a waste containment facility at Nowingi in north-west Victoria, coupled with the announcement of increased landfill levies aimed at reducing industrial waste, the issue of hazardous waste disposal in Victoria is a very topical issue.
Developers and councils alike may wish to bear in mind the sentiments expressed by the Victorian Civil and Administrative Tribunal (Tribunal) this week in SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156 (5 February 2007) in considering current and future approvals for environmentally sensitive developments. The decision has allowed the Lyndhurst landfill facility to continue operating as a prescribed waste landfill, despite a condition of the facility’s planning permits which prohibit the deposit of hazardous waste. In deciding to amend the planning permits and remove the prohibiting condition, the Tribunal discussed the inter-dependant relationship between planning approvals and environmental licences, and considered the waste disposal issues presently facing Victoria.
The waste disposal operations of the Lyndhurst facility
The Lyndhurst facility commenced operations 16 years ago. It has accepted putrescible waste and prescribed industrial waste under two planning permits which allowed the use and development of the land for a private rubbish tip, but prohibited the disposal of ‘hazardous wastes’. The Lyndhurst facility also operated pursuant to an Environment Protection Authority (EPA) licence which had been amended over time to allow the deposit of certain prescribed industrial waste. The planning permits had not been amended to reflect the changes in the EPA licence.
Last year, the Greater Dandenong City Council sought a declaration that the landfill operator, SITA Australia Pty Ltd (SITA), was accepting hazardous wastes at the Lyndhurst facility in breach of its two planning permits. The Tribunal determined that the materials permitted to be disposed of by the EPA licence were ‘hazardous wastes’ and therefore were prohibited from being deposited at the Lyndhurst facility by the planning permits (the declaration)1. The declaration rendered the disposal of hazardous waste at the Lyndhurst facility unlawful. A Supreme Court appeal has been lodged by SITA and is yet to be heard.
Whilst awaiting their Supreme Court appeal, SITA and PWM (Lyndhurst) Pty Ltd, the land owner, applied to the Tribunal to have the planning permits amended to enable the Lyndhurst facility to continue its current operations by accepting the type of waste permitted by its EPA licence2. The Tribunal allowed the application and amended the planning permits to remove the restrictive conditions.
Inter-dependence of planning permits and EPA licenses
In considering the application to amend the planning permits for the Lyndhurst facility, the Tribunal was required to consider the relationship between the planning and environmental approval regimes in Victoria. The question arose as a result of the inconsistency in the waste disposal activities authorised by the planning permits issued by the council under the Planning and Environment Act 1987 and the environmental licence issued by the EPA under the Environment Protection Act 1970.
The Tribunal determined that the EPA is the ‘pre-eminent, expert authority within the [S]tate on all matters concerning the control of pollution and protection of the environment’ and, as a general principal, conditions in a planning permit should not attempt to control the same matters controlled by EPA licences or works approvals. Planning permits may stipulate the purpose for which land may be used and developed. However, municipal councils cannot change that purpose by imposing conditions on planning permits. In a similar vein, the EPA cannot, by amending an EPA licence, change the purpose for which the land could be used under the planning permit. However as the EPA possesses a level of expertise in pollution control and environment protection that is not possessed by municipal councils, the detailed regulation of the technical aspects of use or development allowed under a planning permit should be generally left to the EPA approval.
The complexity of the numerous EPA policies and publications, and their lack of consistency with the terminology used in planning schemes, was acknowledged by the Tribunal. The Tribunal urged the EPA to undertake a comprehensive review of its policies and guidelines to ensure consistency, accessibility and user friendliness, and accurate cross-referencing to documents within the planning system and all planning schemes.
The Tribunal considered that the two systems of planning and environmental regimes are both independent, and in the event of a discrepancy both need to be complied with. However, as the planning and environmental systems simultaneously operate as interlocking regimes, the Tribunal identified the need for cooperation between municipal councils and the EPA to ensure planning permits are consistent, and do not conflict, with EPA licence or works approval conditions.
Material change as grounds for amending permits
In considering the application to amend the permits under section 87 of the Planning and Environment Act 1987, the Tribunal expressed caution against relying upon the outcome of Tribunal decisions concerning other land as a ground for justifying an amendment to a permit. As individual permit applications are site-specific, the Tribunal held that ‘[t]o constitute a material change in circumstances, a Tribunal decision must have particular relevance to the permit or land in question’.
In this instance, the earlier Tribunal declaration concerning the Lyndhurst facility had affected the lawfulness of its current operations under the planning permits, putting the landfill operator in breach of its permit conditions by continuing to undertake its existing operations. This Tribunal declaration had, as a result, fundamentally altered the legal basis of the Lyndhurst facility’s operations and its ability to accept prescribed industrial waste. This was considered to constitute a ‘very material change’ in circumstances, and a sufficient ground to justify amending the permits under section 87.
Key issues
In its decision, the Tribunal emphasised the importance of waste management policies and the need for a long-term solution to hazardous waste disposal in light of Victoria’s limited capacity to accommodate prescribed waste. The Tribunal also clarified the position of the state’s planning and environmental regimes and the appropriate role of municipal councils and the EPA in granting approvals for environmentally polluting activities.
For developers and councils alike, it will be important to consult with councils and the EPA early in the planning application process. Existing permit and EPA licence holders should review their approvals to ensure consistency and hopefully avoid costly and time-consuming enforcement proceedings such as those which have been experienced at Lyndhurst.
Endnotes
1. See Greater Dandenong CC v Sita Australia PL [2006] VCAT 1361 (11 July 2006).
2. Greater Dandenong City Council applied for an enforcement order to enforce the Tribunal’s findings in the declaration. The application was adjourned pending the outcome of the Supreme Court appeal and the application to amend the planning permits.
This article was written by Tim Power, Partner and Magda Paszkiewicz, Solicitor, Melbourne.
More information
For information regarding possible implications for your business, contact