Anderson v PWM (Lyndhurst) Pty Ltd
[2024] VSC 417
•18 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2022 01121
| FLORENCE WINSOME ANDERSON & ORS (according to the Schedule attached) | Plaintiffs |
| v | |
| PWM (LYNDHURST) PTY LTD (ACN 005 470 584) | First Defendant |
| and | |
| VEOLIA RECYCLING & RECOVERY PTY LTD (ACN 002 902 650) | Second Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15, 16, 21, 22, 23, 24, 27, 28 November 2023, 7 December 2023, 9, 20, 21 February 2024, 15, 18 March 2024 |
DATE OF JUDGMENT: | 18 July 2024 |
CASE MAY BE CITED AS: | Anderson v PWM (Lyndhurst) Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VSC 417 |
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ENVIRONMENTAL LAW – Second defendant (Veolia) the holder of a statutory licence to store and possess putrescible waste – Licence required Veolia to take all practicable measures to prevent emissions of landfill gas from exceeding prescribed levels – Emissions of methane gas up to 80 times prescribed levels – Veolia failed to take all practicable measures to prevent landfill gas emissions exceeding prescribed levels.
ENVIRONMENTAL LAW – Where Veolia engaging in an activity that may give rise to risks of harm to human health and the environment from pollution or waste – Veolia subject to general environmental duty to minimise risks of harm to human health and the environment so far as reasonably practicable – Veolia breached duty by failing to ensure that its landfill gas extraction system operated at optimal efficiency – Veolia breached duty by failing to prepare and implement a remediation action plan.
ENVIRONMENTAL LAW – Plaintiffs’ application for orders to prevent, minimise and remedy the breach of licence and breach of general environmental duty – Orders made requiring Veolia to place final caps on landfill cells, improve efficiency of landfill gas extraction system and prepare and implement remediation action plan.
TORTS – Nuisance – Plaintiffs’ claim that migration of landfill gas from Veolia’s land prevented them from obtaining a planning permit for horticultural development of their land – Plaintiffs failed to establish that but for migration of landfill gas they would have been able to undertake horticultural development of land – Interference with potential use of land not an actionable nuisance.
PRACTICE AND PROCEDURE – Undertaking – Defendants proffered undertaking regardless of outcome of proceeding – Court’s power to make orders in the terms of the undertaking required a finding that Veolia had breached its statutory licence or the general environmental duty – Undertaking proffered for purpose of final disposition of proceeding – Basis upon which undertaking proffered misconceived as undertaking proffered irrespective of whether Court concluded that Veolia had not breached licence and general environmental duty.
WORDS AND PHRASES CONSIDERED – ‘Amenity’ – ‘Enjoyment’ – ‘May give rise to risks’ – ‘Eligible person’ – ‘All practicable measures’ – ‘At the boundary’ – ‘Reasonably practicable’.
Environment Protection Act 2017 ss 1, 3, 4, 5, 6, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 308, 309, 313.
Civil Procedure Act 2010 s 56(2)(h).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D A Klempfner with Mr A Walker | Thomson Geer Lawyers |
| For the Defendants | Ms F Hudgson | Ashurst Australia |
TABLE OF CONTENTS
Introduction1
Background4
History of the plaintiffs’ land4
History of the defendants’ land7
Landfill gas components, migration, and risks to human health and the environment7
Veolia’s landfill operations8
Licenses and permits for landfill operations8
Summary of cell construction, filling and capping10
The plaintiffs’ planning application12
The plaintiffs’ claim16
Legislative Framework22
Environment Protection Act 2017 (Vic)22
Operating licence conditions28
Landfill licencing guidelines28
Best Practice Environmental Management30
Issues for determination32
Evidence of landfill gas emissions onto the plaintiffs’ land34
Monitoring at the eastern boundary of Veolia’s land34
Background carbon dioxide and methane levels on Veolia’s land36
Landfill gas monitoring results39
Source of subsurface landfill gas migration onto the plaintiffs’ land49
The landfill gas vent curtain system57
Final capping63
The landfill gas extraction system66
Audit reporting69
Standing79
Section 309(1)(a): Breach of licence82
Has Veolia taken all practicable measures to prevent landfill gas emissions from exceeding the BPEM action levels?93
Is Veolia’s failure to undertake an assessment of the feasibility of a vent curtain system a breach of clause 5?110
Landfill gas extraction system116
Final capping of cells 12 and 13132
Veolia’s failure to prepare and implement a remediation action plan136
Breach of the General Environmental Duty142
Is there a risk of an adverse effect on the amenity of the plaintiffs’ premises that is likely to unreasonably interfere with enjoyment of the premises?153
Nuisance160
Remedy166
Schedule of parties177
Annexure A: Extracts of Master LFG Borehole Spreadsheet 178
HIS HONOUR:
Introduction
The second defendant (‘Veolia’) is the holder of a statutory licence (‘the licence’) under the Environment Protection Act 2017 (‘the Act’) permitting it to engage in the activity of storage and/or possession of waste at a landfill site situated at 274-310 Hallam Road, Hampton Park (‘the landfill site’). The plaintiffs own 38 hectares of land sharing the eastern boundary of the landfill site (‘the plaintiffs’ land’).
The microbial degradation of putrescible waste produces landfill gas (‘LFG’). During the anaerobic phase, where decomposition occurs in the absence of oxygen, methane and carbon dioxide are the major constituents of the gas produced. If not appropriately managed, LFG can be emitted from a landfill site through a number of pathways, including the landfill site’s surface and subsurface geology.
The plaintiffs contend that as a result of faults in the design and construction of landfill waste cells adjacent to the eastern boundary of the landfill site, methane gas has migrated via subsurface geology from Veolia’s land to the plaintiffs’ land. The plaintiffs claim that the migration of LFG is a substantial interference with the use and enjoyment of their land and constitutes a nuisance. In particular, the plaintiffs contend that the migration of LFG onto their land prevented them from obtaining approval from the City of Casey for a significant horticultural development of their land.
The plaintiffs also claim relief under s 309 of the Act. The claim under s 309 has two separate bases. First, the plaintiffs allege that Veolia has breached clause 5 of the licence by failing to take all practicable measures to prevent emissions of LFG from exceeding the prescribed levels in the subsurface geology at the landfill boundary: 1% v/v methane and 1.5% v/v carbon dioxide. Second, the plaintiffs allege that Veolia has breached the general environmental duty (‘GED’) under s 25(1) of the Act. Section 25(1) provides that a person who is engaging in an activity that may give rise to risks of harm to human health or the environment must minimise those risks so far as reasonably practicable.
I have dismissed the plaintiffs’ claim in nuisance. The plaintiffs have not established that but for the presence of LFG on their land the City of Casey would have granted their planning permit application for a horticultural development. Further, an interference with a potential use of land does not constitute an actionable nuisance.
I have concluded that the plaintiffs are entitled to relief under s 309 of the Act. Between 1 July 2022 and 30 October 2023 Veolia failed to take three practicable measures to prevent emissions of methane gas from exceeding 1% v/v in the subsurface geology at the landfill boundary. First, Veolia failed to place a final cap on cell 12. Second, Veolia failed to ensure that its LFG extraction system operated at optimal efficiency. Third, Veolia failed to prepare and implement a remediation action plan.
Veolia has also breached the GED. Veolia engages in the activity of the storage and possession of putrescible waste. This is an activity that may give rise to risks of harm to human health and the environment. Veolia must minimise those risks so far as reasonably practicable. Veolia breached the GED by reason of its failure to comply with s 25(4)(a) and (b) of the Act. Veolia’s failure to ensure that its LFG extraction system operated at optimal efficiency between 1 July 2022 and 30 October 2023 breached s 25(4)(a). Veolia’s failure to prepare and implement a remediation action plan between 1 July 2022 and 30 October 2023 breached s 25(4)(b).
Section 309(2)(a) provides that an order under s 309(1) may require a person to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise or remedy a breach of the GED or non-compliance with a licence. The plaintiffs sought orders which would require Veolia to undertake an assessment of the feasibility of constructing a vent curtain system (‘VCS’) along the boundary between the landfill site and the plaintiffs’ land. I do not consider that such an order is reasonably necessary to prevent, minimise or remedy Veolia’s breach of the GED or non-compliance with the licence. I consider the following orders are reasonably necessary to prevent, minimise and remedy Veolia’s breach of the GED and non-compliance with the licence:
1. Veolia must forthwith engage an environmental auditor to prepare a landfill gas remediation action plan identifying all practicable measures to reduce emissions of landfill gas at the landfill boundary. The practicable measures to be considered by the environmental auditor are to include measures to enhance the efficiency of the gas extraction system including but not limited to:
(i) increasing the existing number of pumps, turbines and flares which comprise part of the system;
(ii) sinking additional gas extraction wells in the area of land adjacent to cells 11, 12 and 13 and the landfill boundary and connecting these wells to the existing gas extraction system infrastructure.
(iii) sinking additional wells into cells 11, 12 and 13.
(iv) reviewing the design of gas extraction wells to identify and recommend improvements to reduce leakage of landfill gas from the extraction wells.
2.The landfill gas remediation action plan must be verified by an environmental auditor as taking all practicable measures to reduce emissions of landfill gas at the landfill boundary.
3.Veolia must forthwith implement any measures identified in the landfill gas remediation action plan as verified by the environmental auditor.
4.Veolia must forthwith provide the Environment Protection Authority with the final cap design for cells 12 and 13 at the Hallam Road landfill and following approval of the cap design by the Environment Protection Authority must forthwith progress construction of the final cap.
The mandatory injunction requiring implementation of measures identified in the remediation action plan will be stayed until 26 August 2024. This will allow time for the preparation of a remediation action plan by an environmental auditor. The Court will make orders on or about 26 August 2024 to facilitate the implementation of any recommendations made by the environmental auditor.
Background
History of the plaintiffs’ land
The plaintiffs are joint proprietors of a 90 acre/36 hectare block of land known as ‘Kings View’ at 280 Hallam Road, Hampton Park in the State of Victoria. The plaintiffs own the land in their capacity as executors of the estate of the late Bertie Richard Knight Anderson. The plaintiffs and their forebears have been farming cattle on the plaintiffs’ land and surrounding properties since the late nineteenth century. The plaintiffs’ family originally owned some 1800 acres of land in the area, but over the years have divided and sold their property. From 2002 onwards only the present 90 acre block remains.
Prior to the second half of 2022, the plaintiffs used the plaintiffs’ land to graze Jersey cattle. Due to concerns about litter blowing onto the property from the adjacent Hallam Road landfill, in the latter half of 2022 the plaintiffs ceased grazing cattle. The plaintiffs now use the land primarily for the cutting of hay that is fed to cattle on other properties owned by the plaintiffs.
The plaintiffs’ land is landlocked with no direct road access. Access to the plaintiffs’ land is via a carriageway easement which runs from the northwest corner of the plaintiffs’ land along the northern boundary of the defendants’ land, before joining the access road to the defendants’ land that ultimately leads to Hallam Road.
The eastern boundary of the plaintiffs’ land abuts an established residential area. The northern boundary of the property abuts both an Urban Floodway Zone and the general residential area. The southern boundary abuts the Urban Floodway Zone and land designated as Special Use Zone. The western boundary of the plaintiffs’ land abuts the defendants’ land.
The plaintiffs’ land is subject to several zoning overlays (see Figure 1). Horticulture is a permitted use in each of the zones subject to obtaining a planning permit. The western and southern areas of the property are subject to a Special Use Zone overlay. Under Schedule 1 Section 2 of the City of Casey Planning Scheme, a permit is required Figure 1: Taken from CB2202, Expert report of Colleen Peterson dated 23 May 2023.
within a Special Use Zone for agriculture, which includes horticulture.
A section of the property extending from the northern boundary to the southern and eastern boundaries is a designated Urban Floodway Zone and Inundation Overlay. Under the City of Casey Planning Scheme and s 55 of the Planning and Environment Act 1987, the construction of any building in an Inundation Overlay must be referred to the relevant floodplain authority.
The north-eastern corner of the property is subject to a General Residential Zone overlay. However, the area of the property subject to this zoning overlay is entirely covered by a 152-metre-wide electricity easement that extends from the south-western corner of the property to the eastern boundary, and then continues along the eastern boundary of the property up to the north-eastern corner of the property. A 4.4-meter-wide sewerage easement also runs along the northern boundary of the site.
Finally, almost the entirety of the plaintiffs’ land falls within a ‘500-metre landfill buffer’ by virtue of being located within a 500-metre radius of the edge of landfill cells located on the defendants’ land. The ‘landfill buffer’ is not a formal zoning overlay but it is an area regulated by the Landfill Best Practice Environmental Management (‘BPEM’) and Environment Protection Authority (‘EPA’) Publication 1642 titled ‘Assessment planning proposals within the buffer of a landfill’ (‘EPA Publication 1642’). EPA Publication 1642 establishes that where a use is proposed within a landfill buffer, sufficient assessment is required to justify that there will be no human health impacts. The EPA does not provide a determination on the suitability of a proposed use with respect to landfill buffers, but rather assists the responsible authority with their assessment of the environmental and human health risks of any proposed use of the land within the buffer. EPA Publication 1642 and the BPEM are used to determine the suitability of development within a landfill buffer. EPA Publication 1642 uses a ‘scoring system’ to categorise the risk of development within a landfill buffer and accordingly require or recommend differing levels of risk assessment.
History of the defendants’ land
The first defendant is the registered proprietor of 274-310 Hallam Road, Hampton Park. The first defendant is a wholly owned subsidiary of Veolia. For this reason, I will refer to this property as ‘Veolia’s land’. The western and southern boundaries of the plaintiffs’ land abut Veolia’s land. That is, the plaintiffs own and occupy land to the east of Veolia’s land.
Veolia is the owner and operator of a waste management business and landfill operated on Veolia’s land. Prior to its use as a landfill, Veolia’s land was used as a quarry between around the 1950s and 2004 when quarrying finished. From around October 1997 Veolia’s land commenced receiving domestic and commercial waste for landfill.
Landfill gas components, migration, and risks to human health and the environment
LFG is a product of the breakdown of putrescible waste in anaerobic conditions (ie without oxygen). It is made up of a number of gases, principally methane and carbon dioxide.
Where there is a build-up of LFG in any given area, LFG will migrate through either diffusion or pressure-driven flow along pathways permeable to LFG, if such pathways exist. This includes venting to the atmosphere or along subsurface migration pathways, where the LFG will remain in the subsurface soil.
The term ‘receptors’ is used in relation to a landfill gas risk assessment to refer to people or places where LFG might have an impact. The presence of LFG in subsurface soil or the atmosphere is not necessarily of itself a ‘receptor’ and does not necessarily pose a risk of material harm to humans or the environment. The risk of material harm from LFG eventuates when subsurface LFG interacts with a receptor in a harmful way. Methane is flammable and explosive between 5-15% v/v. Where there are no receptors in the presence of LFG, LFG poses no or limited risk of harm to human health or the environment. Similarly, in low concentrations and where LFG is sufficiently ventilated, LFG poses no or limited risk to human health and the environment.
However, LFG can be hazardous when it is in excessive quantities in the presence of receptors. This is because it may exclude oxygen and at a sufficient concentration it is flammable due to its high methane levels. LFG is typically present in these excessive quantities where it has built up in a confined space. For example, where LFG is present in subsurface soil below a building and there are no LFG migration mitigation measures in place, LFG could migrate and accumulate within the building. Similarly, where confined spaces such as trenches are dug into soil that is polluted with subsurface LFG, LFG will accumulate within the confined trench space. Therefore, buildings (and trenches dug during the construction of such buildings) may be receptors with an explosive or asphyxiating concentration of LFG that pose a risk of harm to human health and the environment.
Veolia’s landfill operations
Licences and permits for landfill operations
On 22 September 1993 the City of Casey issued Planning Permit number 930016A for the use and development of Veolia’s land as a ‘municipal putrescible waste landfill (private rubbish tip)’ to be commenced within 5 years. A putrescible waste landfill is one which is licensed to receive organic waste such as food waste which is decomposed predominantly by bacteria.
On 30 October 1997 the EPA issued waste discharge licence (now referred to as an operating licence) ES33144 governing the operation of the landfill. On 23 December 2011 this was replaced by operating licence number CL68819 — issued under s 20 of the Environment Protection Act 1970 (Vic) (‘EP Act 1970’). The licence was then amended under the same licence number on 24 May 2012 and 3 October 2012.
The licence was further amended under licence number 74643 on: 5 August 2013, 29 August 2013, 25 August 2014, 24 April 2015, 15 October 2015, 14 March 2016, 19 May 2016, 23 December 2016, 21 June 2017, 31 May 2018, 23 April 2020, 9 October 2020, and 29 June 2021.
On 10 September 2021 the licence was further amended under licence number OL000069939 — issued under s 74(1)(a) of the Act. The licence was further amended under the same licence number on: 1 June 2022, 22 July 2022, 28 March 2023 and 12 May 2023. Despite a change in licence number, the licence stated that it had been issued on 23 December 2011 and therefore was a further amendment to the original licence rather than the issue of a new licence. Prior to 2023 the operating licence included additional sites other than the Hallam Road landfill. In 2023 the licences were then split in that the current operating licence only relates to the Hallam Road landfill.
Summary of cell construction, filling and capping
Landfill cells are used to contain and manage waste material and prevent the release of pollutants. Cell construction at the landfill began in April 1997 with landfilling beginning in October 1997 and continuing today. For present purposes the operation of a landfill cell can be described as being in one of four phases:
(a) Cell construction;
(b) Cell filling whereby waste is filled into the cell;
(c) Cell closure whereby no further waste is deposited into the cell; and
(d) Cell capping whereby a final cap/layer is placed over the cell.
The table below outlines the approximate location of cells and their respective dates of construction, filling, closure and capping:
Cell No. Location Date of cell construction (planned) Date filling began Date cell closed Date of final capping Cell 1 North-west corner Apr-97 Est Sep-97 2000 2001 Cell 1B North-west corner May-99 May-99 2000 2001 Cell 2 North-west corner Apr-00 Apr-00 Jul-04 2007 Cell 2 Ext North-west corner Jun-05 Jun-05 Nov-05 2007 Cell 3A Middle of landfill Jun-01 Sep-01 Oct-04 2007 Cell 3B Middle of landfill Jan-02 Jan-02 Oct-04 2007 Cell 3C Middle of landfill May-02 May-02 Oct-04 2007 Cell 3B & 3C Ext Middle of landfill Aug-03 Aug-03 Oct-04 2007 Cell 4 Western boundary Aug-04 Sep-04 Jun-05 2007 Cell 5 South-west corner Jun-06 Jul-06 Jul-07 2008 Cell 6 Middle of landfill Nov-05 Nov-05 Jun-06 2007 Cell 7 Southern boundary Jun-07 Jun-07 Jan-09 2010 Cell 8 Southern boundary Jul-08 Dec-08 Jun-12 2012 Cell 9A Southern boundary Mar-12 Jul-12 Dec-13 2016 Cell 9B Southern boundary Nov-13 Dec-13 Aug-14 2016 Cell 10A Southern boundary Mar-15 Apr-15 Aug-18 2019 Cell 10B Southern boundary Mar-16 May-16 Dec-16 2021 Cell 11A-P1 South-east corner Dec-16 Dec-16 Dec-17 2021 Cell 11A-P2 South-east corner Jun-17 Jun-17 Dec-17 2021 Cell 12-P1 Eastern boundary Nov-17 Dec-17 May-20 Not yet occurred Cell 12-P2 Eastern boundary May-18 Jun-18 May-20 Not yet occurred Cell 13-P1 Eastern boundary Jul-19 May-20 Feb-23 Not yet occurred Cell 13-P2 Eastern boundary Jul-19 May-20 Feb -23 Not yet occurred Cell 14A Middle of landfill Jul-14 Aug-14 Apr-14 [sic] Not yet occurred Cell 14B Middle of landfill Jan-23 Mar-23 Not yet occurred Not yet occurred Cell 15 North of landfill Not yet constructed Not yet occurred Not yet occurred Not yet occurred
Figure 2: Taken from CB2446, Expert Report of Anthony Lane dated 5 June 2023.
The location of the landfill cells is set out in Mr Lane’s expert report dated 5 June 2023 and is presented below at Figure 2. The plaintiffs’ land abuts the eastern boundary of Veolia’s land, adjacent to cells 11, 12 and 13.
The plaintiffs’ planning application
In September 2020 the plaintiffs applied to the City of Casey for planning permission to use and develop the plaintiffs’ land for horticulture (‘the plaintiffs’ planning application’). The plaintiffs’ planning application was supported by a report by the plaintiffs’ town planning consultant, Glossop Town Planning (‘Glossop’), which detailed the proposal to develop a glasshouse horticultural complex at the site comprising 304 greenhouse lots, a warehouse/office building and a 26-space car park. The plaintiffs’ planning application also detailed plans to develop the carriageway easement to the plaintiffs’ land into a larger carriageway with a 10-metre wide landscape and acoustic fencing buffer.
On 10 November 2020 Vanessa Carson, Senior Statutory Planner at the City of Casey, sent an email to Hew Gerrard of Glossop requiring a LFG risk assessment to support the application. On 16 November 2020, in correspondence to the City of Casey, the EPA recommended that a section 53V environmental audit be completed to assess the risk of harm from the adjacent landfill. A section 53V environmental audit is more stringent than the LFG risk assessment required in Ms Carson’s e-mail to the plaintiffs of 10 November 2020.
On 7 July 2021 Glossop sent a letter to the City of Casey enclosing (among other things) an application to amend the planning permit application, an amended planning report, and a report by Ratio Transport, all of the same date. On 30 July 2021 Glossop sent a letter to the City of Casey attaching a Landfill Gas Risk Assessment dated 27 July 2021 prepared by Australian Environmental Auditors (‘AEA Assessment’). The AEA Assessment recommended the use of an in-ground pathway intervention structure at the boundary of the landfill to address the changing risks of LFG. The AEA Assessment stated that the design of such a pathway must:
Be based upon a LFG RA [risk assessment] that further determines the risk to the development of the subject site using geological information and ground gas/LFG monitoring data obtained from an intrusive investigation of the subject site, and;
Be of a detailed design by a suitably qualified and experienced professional. AEA suggest that the designer should have demonstrated experience in designing in-ground pathway intervention structures for LFG migration, and;
Be constructed by a suitably qualified and professional and the construction verified by an environmental auditor appointed under Section 191 of the Environment Protection Act 2017. AEA suggest that the company should have demonstrated experience in constructing in-ground pathway intervention structures for LFG migration.
On 13 August 2021 Cynthia Lambert, Senior Statutory Planner at the City of Casey, sent an email to Mr Gerrard stating that the Council’s Contaminated Land Team required further information, namely, the design of the proposed in-ground pathway intervention and verification of the design by an environmental auditor.
On 17 August 2021 Ms Lambert sent Mr Gerrard an email following their meeting that day. That e-mail contained requests for further information from the Contaminated Land Team of the Council. Among other items, that request included comments that ‘[f]urther information needs to be provided on the design and location of the in-ground structure, how it will be managed into the future, if it requires monitoring or maintenance and if a Section 173 agreement will be required. An environmental auditor must confirm that the greenhouses on the subject site do not require LFG mitigation measures. If this cannot be confirmed, then the design of suitable mitigation measures must be provided’.
On 25 August 2021 the EPA again recommended in correspondence to the City of Casey that an audit be conducted prior to a decision on a permit. The EPA recommended an audit on the basis that:
Until an audit is completed, the responsible authority cannot know if the site is suitable for the proposed use. A responsible authority must ensure a site is suitable for a proposed use under section 60(1)(e) of the Planning and Environment Act 1987.
An audit may include a statement with recommendations relating to built form, ongoing monitoring and other measures that may impact the planning merits of a proposal.
The letter went on to state as follows:
However, where the applicant justifies a decision to defer an audit, conditions may be applied on a permit. To ensure that the site is made suitable for the proposal, applicable recommendations of the environmental audit must be translated into requirements of a planning approval. Relevant guidance on environmental audit conditions can be found on pages 11-13 of the Planning Practice Note 30 – Potentially Contaminated Land (DELWP, 2021).
Subject to the completion of an environmental audit and implementation of environmental audit statement recommendations through permit conditions, EPA does not object to the issue of a planning permit. However, EPA strongly recommends that an audit be completed prior to a decision on a permit.
On 13 September 2021 Mr Gerrard e-mailed Ms Lambert and asked if the matters raised could be dealt with in permit conditions. On 29 September 2021 Ms Lambert responded that the matters raised could not be the subject of permit conditions and must be addressed before a permit was granted. That letter also noted that the EPA had recommended an environmental audit of the site.
On 13 October 2021 Mr Gerrard emailed Ms Lambert, asking the City of Casey to reject the plaintiffs’ application, stating:
Thank you for the advice in your email of 29 September that all the comments from Council’s Contaminated Land Team must be addressed prior to the issuing of a planning permit for the above application. It is with some regret that I advise that the client after considering these comments is not prepared to invest what would be a considerable amount of money in an attempt to satisfy these comments without first having the security of a planning permit.
I appreciate that policy guidance (such as the two EPA publication's [sic] (e.g. EPA publication 788.3) referenced within the EPA referral) recommends a cautious approach when it comes to proposals within landfill buffers and understand that in the absence of the additional information sought by Council's Contaminated Land Team that Council will refuse the application on landfill gas risk grounds.
While landfill gas risk from the adjacent landfill is the only issue (as I understand) that is preventing the issuing of the permit, in the circumstances I would nevertheless request that Council refuses the application and our client will subsequently consider their options. If when you issue your refusal you could also send through your accompanying officer report that would be much appreciated.
It is a shame that we've reached an impasse with the application but I would like to say thank you to you (and Vanessa) for your help with this application over its quite lengthy journey.
On 8 February 2022 the City of Casey wrote to the Estate of Bertie Richard Knight Anderson advising that the planning permit application had been refused. The letter enclosed a Notice of Decision to Refuse to Grant a Permit and a Delegate Report. The grounds for the refusal were as follows:
1.The proposal fails to satisfy the relevant policies under the Planning Policy Framework of the Casey Planning Scheme, namely in relation to:
· Clause 11 (Settlement)
· Clause 13 (Environmental Risks & Amenity)
· Clause 12.06-1S (Air Quality Management)
· Clause 13.07-1S (Land Use Compatibility)
· Clause 19.03-5S (Waste & Resource Recovery)
2.In the absence of further details, construction, location, and suitability of the proposed in-ground pathway intervention structure, Council is unable to determine the suitability or otherwise of the proposed development and/or use on the subject land.
3.In the absence of an Environmental Audit under Section 53V (Landfill Gas Risk Assessment) of the Environment Protection Authority Act 1970 Council is unable to determine the suitability or otherwise of the proposed development and/or use on the subject land.
4.The proposed development and/or use would result in an unreasonable level of risk to human life and health due to the impacts associated with landfill gas migration, dust, noise and odour given its proximity to the active putrescible landfill site at 274 Hallam Road, Hampton Park.
The plaintiffs’ claim
On 1 April 2022 the plaintiffs commenced proceedings against the defendants by way of writ and statement of claim (‘SOC’). On 1 July 2022 the plaintiffs filed an amended statement of claim (‘ASOC’). On 28 February 2023 the plaintiffs filed a further amended statement of claim (‘FASOC’). On 20 July 2023 the plaintiffs filed a second further amended statement of claim (‘2FASOC’). In the 2FASOC the plaintiffs claim:
(a) a claim in nuisance arising from the defendants substantial and unreasonable interference with the plaintiffs’ use and enjoyment of the plaintiffs’ land (‘nuisance claim’); and
(b) a claim under ss 308, 309 and 313 of the Act based on:
(i) Veolia’s breach of condition OL_L5 of the operating licence OL000069939 issued by the EPA. The plaintiffs allege that Veolia has not taken all practicable measures to prevent subsurface emissions of LFG from exceeding the action level specified in table 6.4 of the BPEM (1% v/v for methane gas and 1.5% v/v for carbon dioxide) (‘claim for breach of the operating licence’); and
(ii) a breach of the general environmental duty (the statutory duty to minimise the risks of harm to human health or the environment, so far as reasonably practicable pursuant to s 25(1) of the Act) (‘claim for breach of the general environmental duty’).
The plaintiffs’ prayer for relief in the 2FASOC claims:
A.Damages or alternatively compensation pursuant to section 313 of the Environment Protection Act 2017 (Vic);
B. Interest;
C.A permanent injunction requiring the Defendants to abate the nuisance caused or threatened to be caused by the landfill gas migration, dust, noise and odour from the Defendants’ Land;
D.Orders requiring the Defendants to remedy the breach of the conditions of the Operating Licence and/or the breach of the General Environmental Duty pursuant to section 309 of the Environment Protection Act 2017 (Vic);
E. Costs;
F. Such further or other order as the Court considers appropriate.
During the course of the proceeding the plaintiffs abandoned a number of ancillary claims:
(a) damages for diminution in value of the plaintiffs’ land; and
(b) a mandatory injunction requiring Veolia to design and construct an in-ground pathway intervention system in the form of an LFG vent curtain system at an estimated cost of approximately $14.5 million.
On 4 December 2023 the plaintiffs submitted the following proposed orders (later superseded by revised proposed orders):
1. There be judgment for the Plaintiffs.
2. The Court finds and declares that the Second Defendant has:
a. failed to comply with the requirements of Condition OL_L5 of the Operating Licence by failing to take all practicable measures to prevent landfill gas from exceeding the BPEM action levels; and
b. contravened section 25(1) of the Act by virtue of the uncontrolled landfill gas emissions migrating from the Site to the Plaintiffs’ Land across the eastern boundary of the Site.
3. The Second Defendant must not add any further waste to cells 12 and 13 of the Landfill.
4. Within 6 months of the date of this order, the Second Defendant must submit to the EPA designs for the final landfill caps for cells 12 and 13 endorsed by a person who has been appointed as an environmental auditor under the Act (the Capping System Auditor) and all other necessary information in accordance with Condition OL_L25 of the Operating Licence and EPA Publication 1323 'Landfill licensing' guidelines (Landfill Licensing Guidelines).
5. The Second Defendant must complete the final capping of cells 12 and 13 by no later than 28 February 2025.
6. Within 90 calendar days of the date of practical completion of the final capping for each of cell 12 and 13, the Second Defendant must submit an environmental audit report to the EPA in accordance with Condition OL_26 of the Operating Licence and Appendix 14 of the Landfill Licensing Guidelines.
7. The environmental audit report submitted pursuant to Order 6 above must verify that the construction of the landfill caps for cells 12 and 13 is in accordance with the EPA approved designs.
8. The Second Defendant must provide a copy of the environmental audit report submitted pursuant to Order 6 above to the Plaintiffs within 90 calendar days of the date of practical completion of the final capping for each of cell 12 and 13.
9. Within 6 months of the date of this order, the Second Defendant must ensure that an "in-ground pathway intervention system " in the form of an landfill gas vent curtain system, as described in paragraphs [149] – [168] of the expert report of Mr Warren Pump dated 20 March 2023 (LFG Vent Curtain System), or if an LFG Vent Curtain System is not feasible, an alternative form of in-ground pathway intervention system (alternative in–ground pathway intervention system) is designed by a suitably qualified professional.
10. The LFG Vent Curtain System or alternative in–ground pathway intervention system must:
a. be constructed upon the First Defendant’s land as close as practicable to the eastern boundary of the Site; and
b. so far as reasonably practicable, capture, transmit, treat and disperse to atmosphere landfill gas from the Landfill so as to prevent the further migration of landfill gas within the subsurface geology across the eastern boundary of the Site on to the Plaintiffs’ Land (the Design Intent).
11. The Design Intent is to be verified by a person who has been appointed as an environmental auditor under the Act (the Vent Curtain Auditor).
12. As soon as practicable or within 18 months of the date of this order (whichever is the sooner), the LFG Vent Curtain System or alternative in–ground pathway intervention system must be installed.
13. The LFG Vent Curtain System or alternative in–ground pathway intervention system must be maintained by the Second Defendant so that it, as far as reasonably practicable captures, transmits, treats and disperses to atmosphere landfill gas in order to prevent the further migration of landfill gas within the subsurface geology across the eastern boundary of the Site on to the Plaintiffs’ Land.
14. Within 90 calendar days of the date of practical completion of the LFG Vent Curtain System or alternative in–ground pathway intervention system, the Second Defendant must submit to the EPA and the Plaintiffs an environmental audit report prepared by the Vent Curtain Auditor and in accordance with section 208 of the Act that:
a. sets out the detailed design of the LFG Vent Curtain System or alternative form of in-ground pathway intervention system;
b. verifies (with photographic evidence, and records of Auditor inspections and as-constructed engineering drawings) that the LFG Vent Curtain System or alternative in-ground pathway intervention system has been installed in accordance with the Auditor-endorsed design; and
c. details ongoing monitoring and maintenance protocols to ensure that the LFG Vent Curtain System or alternative in-ground pathway intervention system operates in accordance with the Design Intent.
15. The Plaintiffs must, at all times, permit the Second Defendants and their agents to have all reasonable access to the Plaintiffs’ Land in order to enable the Second Defendant's compliance with this Order.
16. The Second Defendant pay the Plaintiffs the sum of $115,476.38 as damages for nuisance together with interest in the nature of damages in the sum of interest on $115,476.38 from 1 April 2022 to the date of judgment.
17. The Defendants pay the Plaintiffs’ costs of and incidental to the proceeding, including reserved costs.
On 18 March 2024 during the plaintiffs’ final submissions the plaintiffs submitted the following revised proposed orders to the Court:
1. There be judgment for the Plaintiffs.
2. The Court finds and declares that the Second Defendant has:
a.failed to comply with the requirements of Condition OL_L5 of the Operating Licence by failing to take all practicable measures to prevent landfill gas from exceeding the BPEM action levels at the landfill boundary;
b.contravened section 25(1) of the Act by virtue of the uncontrolled landfill gas emissions migrating from the Site to the Plaintiffs’ Land across the eastern boundary of the Site; and
3.The Second Defendant must forthwith cease depositing any further waste to cells 12 and 13 of the Landfill.
4.The Defendants must, at their cost, within 12 months of the date of this Order, install the final landfill caps for cells 12 and 13 and complete an LFG Remediation Action Plan (LFGRAP) which is verified by an EPA accredited auditor (the auditor). The LFGRAP shall include a consideration of whether efficiency of the LFG extraction system in those cells can be improved.
5.The Defendants must, at their cost, operate the LFG extraction system for cells 11, 12 and 13 to the maximum efficiency as determined pursuant to the LFGRAP.
6.After operating the LFG extraction system for a continuous period of 12 months at maximum efficiency as determined pursuant to the LFGRAP, the auditor is to conduct testing of the subsurface landfill gas in the perimeter bores adjacent to the east boundary of the landfill and provide those results to the Plaintiffs and the EPA.
7.In the event the bore monitoring results show exceedance of the BPEM action level for subsurface LFG, then the Plaintiffs have liberty to apply for such further or other order as they consider appropriate.
8.During the first 12 months of this order, the Defendants will instruct the auditor to determine the feasibility of a 600-metre vent curtain along the eastern boundary as a means to prevent subsurface migration of landfill gas and will provide the auditor's reports regarding the feasibility of the vent curtain to the Plaintiffs and the EPA.
9.The Defendants must ensure that the LFG extraction system operates at maximum efficiency for a period of 30 years from the date of this Order.
10.The Plaintiffs must, at all times, permit the Second Defendants and their agents to have all reasonable access to the Plaintiffs’ land in order to enable the Second Defendant's compliance with this Order.
11.The Second Defendant pay the Plaintiffs the sum of $115,476.38 as damages for nuisance together with interest in the nature of damages in the sum of interest on $115,476.38 from 1 April 2022 to the date of judgment.
12.The Defendants pay the Plaintiffs’ costs of and incidental to the proceeding, including reserved costs.
By the completion of the hearing the relief sought by the plaintiffs had three principal elements:
(a) a mandatory injunction requiring the final capping of cells 12 and 13;
(b) a mandatory injunction requiring Veolia to complete a LFG remediation Action Plan, including consideration of whether the efficiency of the LFG extraction system in cells 11, 12 and 13 can be improved; and
(c) a mandatory injunction requiring Veolia to undertake an assessment of the feasibility of a 600 meter VCS along the eastern boundary of Veolia’s land.
Legislative Framework
Environment Protection Act 2017 (Vic)
The purposes of the Act are described in s 1:
The main purposes of this Act are—
(a) to provide for the continuation of the Environment Protection Authority; and
(b) to specify a new objective of the Environment Protection Authority; and
(c) to provide for a new governance structure of the continued Environment Protection Authority; and
(d) to provide for the Governing Board of the Environment Protection Authority; and
(e) to set out principles of environment protection; and
(f) to set out the legislative framework for the protection of human health and the environment from pollution and waste; and
(g) to provide for a general environmental duty to minimise risks of harm to human health and the environment from pollution or waste; and
(h) to establish a permissions scheme that enables the Environment Protection Authority to issue or grant development licences, operating licences, pilot project licences, permits and registrations; and
(i) to provide a framework for the management of waste; and
(k) to enable the Environment Protection Authority and authorised officers to ensure compliance with the Act and require action to manage risks of harm to human health and the environment from pollution or waste; and
(l) to provide for a system of criminal and civil penalties; and
(m) to provide for a system of civil remedies and compensation orders available to the Court; and
(o) to make consequential amendments to the Public Administration Act 2004 and other Acts.
Section 3 of the Act defines ‘activity’, ‘place’, ‘pollution’, ‘premises’ and ‘waste’ as follows:
activity includes—
(a) the storage or possession of waste or any other substance or thing; or
(b) anything prescribed to be an activity;
…
place includes land, waters, a location, an area or a region;
…
pollution includes any emission, discharge, deposit, disturbance or escape of—
(a) a solid, liquid or gas, or a combination of a solid, liquid or gas, including but not limited to smoke, dust, fumes or odour; or
(b) noise; or
(c) heat; or
(d) a thing prescribed for the purposes of this definition—
but does not include a thing prescribed not to be pollution for the purposes of this definition;
…
premises includes a structure, building or vehicle;
…
waste includes any of the following—
(a) matter, including solid, liquid, gaseous or radioactive matter, that is deposited, discharged, emitted or disposed of into the environment in a manner that alters the environment;
(b) a greenhouse gas substance emitted or discharged into the environment;
(c) matter that is discarded, rejected, abandoned, unwanted or surplus, irrespective of any potential use or value;
(d) matter prescribed to be waste;
(e) matter or a greenhouse gas substance referred to in paragraph (a), (b), (c) or (d) that is intended for, or is undergoing, resource recovery;
Sections 4, 5 and 6 define harm in relation to human health or the environment. Sections 4, 5 and 6 respectively state:
4 What is harm?
(1) In this Act, harm, in relation to human health or the environment, means an adverse effect on human health or the environment (of whatever degree or duration) and includes—
(a) an adverse effect on the amenity of a place or premises that unreasonably interferes with or is likely to unreasonably interfere with enjoyment of the place or premises; or
(b) a change to the condition of the environment so as to make it offensive to the senses of human beings; or
(c) anything prescribed to be harm for the purposes of this Act or the regulations.
(2) For the purposes of subsection (1), harm may arise as a result of the cumulative effect of harm arising from an activity combined with harm arising from other activities or factors.
5 What is material harm?
(1) In this Act, material harm, in relation to human health or the environment means harm that is caused by pollution or waste that—
(a) involves an actual adverse effect on human health or the environment that is not negligible; or
(b) involves an actual adverse effect on an area of high conservation value or of special significance; or
(c) results in, or is likely to result in, costs in excess of the threshold amount being incurred in order to take appropriate action to prevent or minimise the harm or to rehabilitate or restore the environment to the state it was in before the harm.
(2) For the purposes of subsection (1), harm may become material harm regardless of the period of time in which the harm occurs and as a result of—
(a) a single occurrence of harm arising from an activity; or
(b) multiple occurrences of harm arising from the same activity; or
(c) the cumulative effect of harm arising from an activity combined with harm arising from other activities or factors.
(3) In this section, threshold amount means $10 000 or a higher amount prescribed by the regulations.
6 The concept of minimising risks of harm to human health and the environment
(1) A duty imposed on a person under this Act to minimise, so far as reasonably practicable, risks of harm to human health and the environment requires the person—
(a) to eliminate risks of harm to human health and the environment so far as reasonably practicable; and
(b) if it is not reasonably practicable to eliminate risks of harm to human health and the environment, to reduce those risks so far as reasonably practicable.
(2) To determine what is (or was at a particular time) reasonably practicable in relation to the minimisation of risks of harm to human health and the environment, regard must be had to the following matters—
(a) the likelihood of those risks eventuating;
(b) the degree of harm that would result if those risks eventuated;
(c) what the person concerned knows, or ought reasonably to know, about the harm or risks of harm and any ways of eliminating or reducing those risks;
(d) the availability and suitability of ways to eliminate or reduce those risks;
(e) the cost of eliminating or reducing those risks.
Chapter 3 of the Act describes the duties relating to environmental protection. Section 25 prescribes the general environmental duty as follows:
25 General environmental duty
(1) A person who is engaging in an activity that may give rise to risks of harm to human health or the environment from pollution or waste must minimise those risks, so far as reasonably practicable.
Notes
See section 6 in relation to the concept of minimising risks of harm to human health and the environment.
Section 314 provides that subsection (1) is a civil penalty provision. The penalty for contravention of this civil penalty provision is set out in the table in section 314. See also section 314(3).
(2) A person commits an offence if the person contravenes subsection (1) in the course of conducting a business or an undertaking.
Penalty: In the case of a natural person, 2000 penalty units;
In the case of a body corporate, 10 000 penalty units.
(3) An offence under subsection (2) is an indictable offence.
Note
This offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).
(4) Without limiting subsection (1), a person who is conducting a business or an undertaking contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking, so far as reasonably practicable—
(a) use and maintain plant, equipment, processes and systems in a manner that minimises risks of harm to human health and the environment from pollution and waste;
(b)use and maintain systems for identification, assessment and control of risks of harm to human health and the environment from pollution and waste that may arise in connection with the activity, and for the evaluation of the effectiveness of controls;
(c) use and maintain adequate systems to ensure that if a risk of harm to human health or the environment from pollution or waste were to eventuate, its harmful effects would be minimised;
(d) ensure that all substances are handled, stored, used or transported in a manner that minimises risks of harm to human health and the environment from pollution and waste;
(e) provide information, instruction, supervision and training to any person engaging in the activity to enable those persons to comply with the duty under subsection (1).
(5) Without limiting subsection (1), a person who is conducting a business or an undertaking and engaging in an activity that involves the design, manufacture, installation or supply of a substance, plant, equipment or structure, contravenes that subsection if the person fails to do any of the following in the course of conducting the business or the undertaking and engaging in the activity, so far as reasonably practicable—
(a) minimise risks of harm to human health and the environment from pollution and waste arising from the design, manufacture, installation or supply of the substance, plant, equipment or structure when the substance, plant, equipment or structure is used for a purpose for which it was designed, manufactured, installed or supplied;
(b) provide information regarding the purpose of the substance, plant, equipment or structure and any conditions necessary to ensure it can be used in a manner that complies with the duty under subsection (1).
Chapter 11 contains provisions relevant to enforcement and civil proceedings.
Section 308 provides:
308 Eligible persons
(1) In this Part—
eligible person, in relation to an application under this Part, means a person—
(a) whose interests are affected by the contravention or non-compliance in relation to which the application is made; or
(b) who has the leave of the Court to make the application.
(2) The Court must not give a person leave to make an application for the purposes of subsection (1)(b) unless the Court is satisfied that—
(a) the application would be in the public interest; and
(b) the person has requested in writing that the Authority take enforcement action or compliance action in relation to the contravention or non-compliance; and
(c) the Authority has not, within a reasonable time after receiving that request, taken enforcement action or compliance action.
Sections 309 provides:
309 Court orders
(1) On an application by the Authority or an eligible person, a Court may make an order restraining a person from engaging in specified conduct or requiring a person to take any specific action, in such terms as the Court considers appropriate, if the Court is satisfied that a person—
(a) is not complying or has not complied with a permission issued or granted under this Act; or
(b) is contravening or has contravened any other requirement or duty imposed on the person by or under this Act.
(2) Without limiting subsection (1), an order under that subsection may—
(a) require a person to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise or remedy the contravention or non-compliance; or
(b) require a person to provide a financial assurance as a condition for engaging in specified conduct.
(3) The Authority or an eligible person may apply for an order under subsection (1) whether or not proceedings have been taken for—
(a) an offence against this Act or the regulations; or
(b) a contravention of a civil penalty provision under this Act.
(4) The power of a Court to grant an order under subsection (1) may be exercised whether or not the contravention or non-compliance—
(a) is likely to result in harm to any person or the environment; or
(b) is likely to result in an infringement of the rights of any person.
(5) An application for an order under subsection (1) may be made ex parte.
Operating licence conditions
Condition OL_L5 of Veolia’s operating licence (‘clause 5’) stipulates as follows:
| OL_L5 | You must take all practicable measures to prevent emissions of landfill gas from exceeding the action levels specified in Table 6.4 of Best Practice Environmental Management, Siting, Design, Operation and Rehabilitation of Landfills (EPA Publication 788). |
Landfill licencing guidelines
The EPA publishes landfill licencing guidelines (‘guidelines’) which provide:
guidance to assist landfill operators and environmental auditors with ongoing environmental management of the landfill and with gaining EPA approval for construction of new landfill cells at existing landfills. Guidance on understanding landfill licence conditions is provided in Appendix 1.
Guidance in relation to clause 5 is as follows:
L5 Landfill gas management
You must take all practicable measures to prevent emissions of landfill gas from exceeding the action levels specified in Table 6.4 of Best practice environmental management, siting, design, operation and rehabilitation of landfills’ (EPA Publication 788).
It is a required outcome of the Landfill BPEM to undertake a site-specific landfill gas risk assessment and to take all practicable measures to achieve the landfill gas action levels detailed in Table 6.4 of the Landfill BPEM.
If landfill gas monitoring shows that the action levels have been exceeded you must:
- take action to reduce emissions to within the landfill gas action levels;
- notify EPA of the exceedance within 24 hours (in line with required outcomes and instructions in BPEM and the guidance in the Landfill Gas Fugitive Emissions Monitoring Guideline); and
- provide to EPA, and implement, a landfill gas remediation action plan (as per the required outcomes of BPEM).
Not taking all practicable measures to control and manage landfill gas emissions to within the gas action levels, not notifying EPA within the prescribed timeframe and not providing and implementing a landfill gas remediation action plan are considered to be breaches of this licence condition.
Fugitive landfill gas emissions can present a hazard to people and the environment. Landfill gas also contains many odourous trace gases which can cause significant degradation of amenity values of nearby residential and industrial / commercial land uses. Landfill gas is comprised of 98-99% methane and carbon dioxide. Methane is flammable and explosive between 5-15 % v/v. Both methane and carbon dioxide are asphyxiants and will displace oxygen in enclosed spaces including buildings. Landfill gas can adversely affect vegetation and crops when it moves through soils, it will also change groundwater chemistry if dissolved in aquifer water. Management of landfill gas at landfills is required to reduce the risks of the hazards and amenity impacts presented by landfill gas being realised at human and environmental receptors.
The BPEM gas action levels are reflective of the concentrations at which hazards are presented by landfill gas and are an early warning of when action must be taken to reduce emission. The gas action levels apply at the landfill boundary so that action is triggered before a sensitive receptor is impacted.
You must take all practicable measures to manage landfill gas to meet the BPEM gas action levels. Examples of practicable measures include, but are not limited to:
- installing and running a landfill gas extraction system
- regular balancing of landfill gas extraction wells, a minimum frequency of monthly is required, unless balancing records show longer stability trends at specific wells
- extraction of leachate such that it is managed to a maximum level in the waste which keeps the landfill gas extraction wells unsaturated
- application and maintenance of intermediate cover and final capping layers to allow sufficient vacuum to be applied to landfill gas extraction wells
- progressive installation of the landfill gas extraction system when each completed cell is rehabilitated. In most cases it is observed that intermediate cover is used for a period of 1-2 years before a final cap is installed. Therefore landfill gas extraction systems should be installed immediately after the intermediate cover has been placed
- condensate collection and removal from landfill gas extraction system pipework
- regular inspection and maintenance of landfill gas extraction wells, manifolds, pipework, condensate management infrastructure, blowers, engines and flares
- landfill gas extraction infrastructure future planning to enable expansion of the gas extraction system as required to continually meet the BPEM gas action levels. For example, installing new engines and increasing the electrical interconnection (mains export capacity)
- having flaring capacity which matches the installed engine capacity to maintain gas extraction in the event of interconnection outage
- the use of passive landfill gas extraction and treatment if gas generation volumes are demonstrated to not be able to sustain an active landfill gas extraction system
- undertaking landfill gas extraction pumping trials to more accurately determine gas generation and design, and size an appropriate landfill gas management system.
In addition to mitigating hazards and impacts on humans and the environment landfill gas emissions should be controlled to reduce emissions of greenhouse gases. Methane and carbon dioxide are important greenhouse gases to control due to their radiative forcing impacts on global warming. There are also other potent greenhouses gases within the trace gases in landfill gas. These trace gases are minor by volume but have radiative forcing potential orders of magnitude greater than carbon dioxide and methane.
Best Practice Environmental Management
Objectives of the BPEM include:
1.1 Objectives of the Landfill BPEM
These guidelines aim to provide existing and future operators of landfills, planning authorities and regulating bodies with:
• information on potential impacts of landfills on the environment and how these are to be mitigated
• a clear statement of environmental performance objectives for each segment of the environment
• information on how to avoid or minimise environmental impacts, including suggested measures to meet the objectives.
These guidelines are intended to be used as a default position for landfill siting, design, operation and rehabilitation. Landfill operators must meet the objectives and required outcomes by implementing the relevant best-practice measures, described as suggested measures, contained herein.
Paragraph 6.7.1 of the BPEM considers the ‘best-practice design’ in relation to LFG and provides:
Landfill gas risk assessment
Due to the variable nature of landfill sites, the most appropriate way to evaluate the level of risk posed by landfill gas from an individual site is to conduct a site-specific landfill gas risk assessment (LGRA). Appropriate measures for monitoring and managing landfill gas can subsequently be determined based on the findings of the LGRA. Guidance on how to complete a LGRA is provided in the Landfill Licensing Guidelines (EPA publication 1323).
…
Landfill gas monitoring
Landfill gas monitoring is an integral component in landfill gas management and should be developed and implemented based on the findings of a site-specific LGRA.
…
The action levels for landfill gas at different monitoring locations are set out in Table 6.4. When these action levels are exceeded, the landfill operator must notify EPA within 24 hours. The notification is also to advise what action will be taken to address the matter, what further testing will be done to demonstrate effectiveness of the works, anticipated time frame for the works, or when a detailed landfill gas remediation action plan (LFGRAP) would be prepared and forwarded to EPA.
EPA need not be advised of an excursion above an action level where only an onsite location was affected and the matter is rectified within 24 hours.
Where an action level has been exceeded at an offsite location, or the result indicates that an action level would be exceeded offsite, then the landfill operator must prepare an LFGRAP.
When buildings offsite are or may be impacted by landfill gas, the LFGRAP must be verified by an environmental auditor as taking all practicable measures in the circumstances to reduce the risks from the landfill gas to acceptable levels.
Notwithstanding the requirement for auditor verification, the draft LFGRAP is to be forwarded to the EPA as soon as practicable. Auditor verification of the draft LFGRAP is not required prior to its submission to the EPA
Table 6.4: Landfill gas action levels
Location
Parameter(s)
Action level and unit
Landfill surface final cap
Methane concentration in air*
100 ppm
Within 50mm of penetrations through the final cap
Methane concentration in air**
100 ppm
Landfill surface intermediate cover areas***
Methane concentration in air*
200 ppm
Within 50mm of penetrations through the intermediate cover
Methane concentration in air**
1000 ppm
Biofilters
Methane flux
1.0g/m2/hr
Subsurface geology at the landfill boundary
Methane and Carbon Dioxide concentrations
1% v/v Methane or 1.5% v/v Carbon Dioxide above background
Subsurface services on and adjacent to the landfill site
Methane concentration
10,000 ppm
Building/structures on and adjacent to the landfill site
Methane concentration in air
5000 ppm
Landfill gas flares
Methane and Volatile Organic Compounds
98% Destruction efficiency
* Point of measurement is 50mm above the landfill surface.
** Point of measurement is 50mm from the point of discharge.
*** Intermediate cover areas are those that do not have an engineered landfill cap and are not scheduled to receive waste during the next three months.
Issues for determination
There are five issues for determination:
(i) Do the plaintiffs have standing to claim relief under s 309(1) of the Act?
(ii) Has Veolia breached clause 5 of the licence by failing to take all practicable measures to prevent emissions of LFG from exceeding the BPEM action levels?
(iii) Has Veolia breached the general environmental duty in s 25(1) of the Act.
(iv) Does Veolia’s use of its land for the purposes of waste management and landfill constitute a substantial and unreasonable interference with the plaintiffs’ use and enjoyment of their land and thereby constitute a nuisance?
(v) If Veolia has breached clause 5 of the licence and /or s 25(1) of the Act what relief, if any, should the Court grant?
Before addressing these issues it is necessary to set out in some detail the evidence in relation to the origin of LFG, migration of LFG onto the plaintiffs’ land, and practicable measures to prevent LFG emissions. Warren Pump and Richard Evans were called to give evidence by the plaintiffs, with Anthony Lane called by the defendants (‘LFG experts’). The parties tendered the following expert evidence:
· Expert report of Mr Evans dated 21 March 2023;
· Expert report of Mr Pump dated 21 March 2023;
· Expert report of Mr Lane dated 5 June 2023;
· Expert report of Mr Evans in reply dated 8 August 2023;
· Expert report of Mr Pump in reply dated 10 August 2023;
· Expert report of Messrs Pump, Evans and Lane dated 30 August 2023;
· Further expert report of Mr Evans dated 16 February 2024;
· Further expert report of Mr Pump dated 16 February 2024; and
· Further expert report of Mr Lane dated 16 February 2024.
Expert reports in relation to quantity surveying, land valuation and town planning were also tendered in relation to the costs of potential relief, rectification works and potential development of the plaintiffs’ land. The parties tendered the following reports:
· Expert report of Geoffrey Brown (plaintiffs) dated 21 March 2023;
· Expert report of John Lawlor (plaintiffs) dated 21 March 2023;
· Expert report of Colleen Peterson (defendants) dated 23 May 2023 and subsequent addendum dated 31 October 2023;
· Expert report of Scott Ferguson (defendants) dated 23 May 2023 and supplementary memoranda dated 12 October 2023;
· Expert report of Brian Dudakov (defendants) dated 1 June 2023;
· Expert report of Mr Brown in reply dated 17 August 2023;
· Expert report of Mr Lawlor in reply dated 22 August 2023;
· Expert report of Messrs Brown and Dudakov dated 29 August 2023; and
· Expert report of Messrs Lawlor and Ferguson dated 5 September 2023.
The evidence of Messrs Brown and Dudakov related to the value of the plaintiffs’ land with and without a planning permit for a horticultural development. The evidence of Mr Lawlor related to the cost of construction of a VCS. The claim in relation to diminution in the value of the land was not pressed and the plaintiffs did not press for orders requiring Veolia to design and construct a VCS.
Evidence of LFG emissions onto the plaintiffs’ land
Monitoring at the eastern boundary of Veolia’s land
LFG at the Hallam Road landfill is monitored through LFG monitoring bores located across the landfill. There are 9 on-site LFG monitoring bores located on the eastern boundary of Veolia’s land (adjacent to the western boundary of the plaintiffs’ land). From north to south along the boundary, they are numbered LFG 50, LFG 35, LFG 51, LFG 36, LFG 52, LFG 37, LFG 53, LFG 38 and LFG 54. Bores LFG 36, 52, 37, 53, 54 and 38 are all placed adjacent to a landfill boundary cell (see Figure 3). In accordance with Appendix B section B7.1 of the BPEM, some of these bores were installed at a distance of 20 metres from the landfill cell boundary where there was sufficient space between the cell boundary and the boundary of Veolia’s land. If no such space was available the bores were placed at a closer distance to the landfill cell boundary than that recommended within the BPEM.
Figure 3: Taken from CB20322, Letter from Bayden Darmody and Prue Rice (Resolve) to Lachlan James (Veolia) dated 30 March 2023, Appendix A, Figure 2: Site Features Plan.
Readings and recordings of methane, carbon dioxide, oxygen, atmospheric pressure, differential pressure, and gas flow are taken from these monitoring bores by Veolia on a monthly basis. Readings are also taken by an independent environmental consultant on behalf of the defendants every six months. The results of these readings are publicly available through EPA environmental audit reports of the landfill.
On 31 May and 1 June 2022 a further five dual-purpose bores were installed on the plaintiffs’ land, referred to as B01 to B05. B02 to B05 were installed along the western boundary of the plaintiffs’ land, with B01 located on the eastern boundary of the plaintiffs’ land. These bores were installed to assess the possibility that LFG could be migrating from adjacent landfill cells onto the plaintiffs’ land. Readings of landfill gas within these bores was undertaken by Mr Evans between 31 May 2022 and 21 June 2022.
Background carbon dioxide and methane levels on Veolia’s land
The BPEM states that methane cannot exceed 1% v/v above background and carbon dioxide cannot exceed 1.5% v/v above background i.e., naturally occurring and not attributable to Veolia’s activity of waste management and storage. Before evidence with regard to LFG exceedances can be considered, it is necessary to establish what the background levels of carbon dioxide and methane are on both the plaintiffs’ land and Veolia’s land.
There is no evidence of background tests on the eastern boundary of the landfill as to the background levels of carbon dioxide and methane prior to the commencement of landfill operations on Veolia’s land in 1997. However, Mackenzie Environmental were engaged by Veolia sometime in 2016 until August 2017 to establish background carbon dioxide concentrations. At this time, cell filling had commenced in landfill cells 1 through to 11A as well as cell 14A, but had not commenced in the remainder of the landfill cells. Due to the variation in carbon dioxide levels between monitoring bores, the final Mackenzie Environmental report with regard to background carbon dioxide levels dated August 2017 recommended a ‘zoned’ approach in which Veolia adopt different background levels across the landfill site.
The Mackenzie Environmental report recommended that Veolia adopt a background carbon dioxide level of 10.8% v/v for the north, east and south boundary of the property. This recommended background level was not adopted by Veolia. No explanation was provided to the Court for this decision. As at 2021, no background level of carbon dioxide had been firmly established or adopted by Veolia for the north, east, and south boundary. The background level of carbon dioxide on the east boundary of Veolia’s land was the subject of expert evidence in the proceeding.
The experts agreed that the background levels of methane in the soil of the plaintiffs’ land was likely to be 0% v/v.
There was disagreement among the experts as to what the background levels of carbon dioxide were on the border of Veolia’s and the plaintiffs’ land. That disagreement is assessed below.
Mr Lane gave evidence that in his opinion the background levels of carbon dioxide were approximately 7% v/v on the border shared by the plaintiffs and Veolia. This opinion was based on:
(a) The topography of the plaintiffs’ land, which in the opinion of Mr Lane is ‘low-lying and a former swamp’. Elevated background carbon dioxide levels are ‘typical of areas with shallow geological units and soil with high organic carbon which produces CO2’.
(b) The 2016 and 2017 reports prepared by Mackenzie Environmental which in turn were based on data gathered from bores LFG 33, LGF 34, LFG 35, LFG 36 and LFG 37, and ‘median and average statistics to characterise the expected background at the eastern boundary.’ However, Mr Lane did note that only some of the monitoring points used in this Mackenzie Environmental report may have the ‘“12 data sets representative of a 12-month period” as recommended in the UK Environment Agency guidelines’ required to establish background carbon dioxide levels with certainty.
Mr Pump gave evidence that the method for determining the naturally occurring carbon dioxide or methane within a given area is to take a sample from a monitoring bore that is in a location where there is no artificial or anthropogenic source of gas of any kind. Mr Evans undertook to do so by installing B01, a monitoring bore nearby the eastern boundary of the plaintiffs’ land (the boundary furthest from the landfill) and monitoring the results of this bore between 31 May 2022 and 21 June 2022.
The results of Mr Evans’ assessment of the data from B01 was that ‘the soil on the Site is not a likely source of methane above 0% or of carbon dioxide above 2.7% v/v.’ Mr Pump agreed with Mr Evans’ assessment.
Mr Pump did not agree that elevated background carbon dioxide levels of 10.8% v/v would represent background carbon dioxide on the boundary with the plaintiffs’ land (as was concluded in the Mackenzie Environmental report). In Mr Pump’s opinion, that figure is likely to be elevated above background levels as ‘there is a possibility that there are, for example, leakages from the piping of the landfill gas extraction system that may cause pathways that are yet to be discovered, through to gas bore 35’ being one of the gas bores on the boundary with the plaintiffs’ land from which the Mackenzie background figure was based.
Mr Evans stated that the background level of carbon dioxide was likely to be approximately 2.7% v/v and there was not enough information to conclude that the background level of carbon dioxide of 10.8% v/v recommended by the Mackenzie report was an accurate assessment of the background carbon dioxide levels in the land surrounding that area. Mr Evans formed this opinion based on the fact that, despite the bores in question being partially geographically removed from the active landfill cells by being located closer to landfill cells that were empty at the time of the Mackenzie Environmental report, the monitoring bores used to form Mackenzie Environmental’s recommendation were on the boundary of the landfill.
I prefer the evidence of Messrs Pump and Evans that the background levels of carbon dioxide on the boundary of the plaintiffs’ land was 2.7%. Ultimately, little turns on the differing opinion of Mr Lane that the background level of carbon dioxide is 7%. All experts agree that the background level of methane gas was 0%. As set out later in this judgment the question of whether Veolia has breached clause 5 of the licence and s 25(1) primarily involves consideration of methane gas emissions in excess of the BPEM action levels, rather than carbon dioxide emissions.
Landfill gas monitoring results
The relevant monthly data reflecting LFG emissions in excess of the BPEM action levels for each relevant bore along the eastern boundary is annexed to this judgment. Both parties accepted the accuracy of this data. The monitoring results that were the subject of most consideration during the evidence of the experts were the BPEM action level exceedances at LFG 36, LFG 52, LFG 37, LFG 38, LFG 53 and LFG 54. These boreholes are adjacent to landfill cells 11, 12 and 13.
These boreholes were the subject of a series of BPEM methane action level exceedances.
(a) LFG 36 experienced its first BPEM action level exceedance of methane on 14 April 2023 with a reading of 3.1% v/v. A second exceedance of 10.7% v/v was recorded on 19 July 2023. The readings for the period June 2022 to October 2023 are as follows:
Bore LFG36 Date Reading 20 June 2022 0.0% v/v 21 July 2022 0.0% v/v 30 August 2022 0.0% v/v 27 September 2022 0.0% v/v 26 October 2022 0.0% v/v 22 November 2022 0.0% v/v 19 December 2022 0.0% v/v 16 January 2023 0.0% v/v 7 February 2023 0.0% v/v 9 March 2023 0.0% v/v 14 April 2023 3.1% v/v 12 May 2023 0.0% v/v 22 June 2023 0.0% v/v 19 July 2023 10.7% v/v 25 August 2023 7.4% v/v 4 September 2023 23.6% v/v 23 October 2023 18.6% v/v
(b) LFG 52 experienced its first BPEM action level exceedance of methane on 25 July 2022 with a reading of 6.3% v/v. A series of higher methane readings all 32.0% v/v or higher were recorded between 9 March 2023 and 23 October 2023, with the highest reading of 83.2% v/v recorded on 4 September 2023.
Bore LFG52 Date Reading 20 June 2022 0.0% v/v 25 July 2022 6.3% v/v 30 August 2022 5.3% v/v 27 September 2022 13.0% v/v 26 October 2022 5.2% v/v 22 November 2022 6.1% v/v 19 December 2022 10.5% v/v 16 January 2023 4.2% v/v 7 February 2023 0.6% v/v 9 March 2023 32.1% v/v 14 April 2023 55.6% v/v 15 May 2023 77.3% v/v 29 June 2023 No reading recorded 19 July 2023 72.6% v/v 25 August 2023 43.5% v/v 4 September 2023 83.2% v/v 23 October 2023 69.0% v/v
(c) LFG 37 experienced its first BPEM action level exceedance of methane on 25 July 2022 with a reading of 4.1% v/v. A series of higher methane readings all 26.0% v/v or higher were recorded between 9 March 2023 and 23 October 2023, with the highest reading of 48.2% v/v recorded on 4 September 2023.
Bore LFG37 Date Reading 20 June 2022 1.2% v/v 25 July 2022 4.1% v/v 30 August 2022 4.3% v/v 27 September 2022 17.3% v/v 26 October 2022 0.0% v/v 22 November 2022 3.8% v/v 19 December 2022 5.9% v/v 16 January 2023 16.0% v/v 7 February 2023 14.0% v/v 9 March 2023 26.5% v/v 14 April 2023 39.0% v/v 18 May 2023 No reading recorded 22 June 2023 35.3% v/v 19 July 2023 No reading recorded 25 August 2023 43.8% v/v 4 September 2023 48.2% v/v 23 October 2023 38.4% v/v
(d) LFG 53 experienced its first BPEM action level exceedance of methane on 30 August 2022 with a reading of 1.5% v/v, with the highest exceedance recorded on 4 September 2023 at a reading of 40.9% v/v.
Bore LFG53 Date Reading 20 June 2022 0.0% v/v 25 July 2022 0.4% v/v 30 August 2022 1.5% v/v 27 September 2022 4.8% v/v 26 October 2022 9.4% v/v 22 November 2022 0.0% v/v 19 December 2022 0.0% v/v 16 January 2023 1.7% v/v 7 February 2023 0.5% v/v 9 March 2023 0.0% v/v 18 April 2023 0.0% v/v 12 May 2023 1.8% v/v 22 June 2023 17.4% v/v 19 July 2023 24.6% v/v 25 August 2023 19.9% v/v 4 September 2023 40.9% v/v 23 October 2023 0.0% v/v
In the course of his final submissions the plaintiffs’ counsel submitted that an assessment of the feasibility of a VCS would cost approximately $1.5 million. I infer that the cost of providing the information sought by City of Casey would be significantly more than the $400,000 to $600,000 which was identified by Mr Anderson as being the cost of a full environmental audit which he was not prepared to spend for the purposes of obtaining a planning permit. In addition to the cost of engaging an environmental auditor in order to comply with the requirements of the City of Casey the plaintiffs would have been required to engage a consultant to design both a VCS and gas mitigation measures for the proposed 34 green houses.
As acknowledged by the plaintiffs’ town planning consultant, the City of Casey’s request for additional information was consistent with the cautious approach recommended by the EPA in respect of development proposals falling within a landfill buffer. The requirement for additional information was imposed on the plaintiffs in August 2021 prior to there being any evidence that LFG had migrated onto their land. The AEA report concluded that the risk to the plaintiffs’ land from subsurface migration of LFG was moderate to high. That conclusion is not surprising given the proximity of the plaintiffs’ land to the landfill site.
The fact that the Council required further information as a condition for the grant of a planning permit does not support a finding that Veolia’s use of its land as a landfill site prevented the development and use of the plaintiffs’ land in accordance with the planning permit application. Veolia was lawfully entitled to conduct a landfill operation pursuant to a statutory licence granted under the Act. The further information required by the Council was due to the operation of a landfill site which entailed the risk of subsurface migration of LFG to adjoining properties, including the plaintiffs’ land.
If the plaintiffs’ planning permit application had been granted it would still have been necessary for the plaintiffs to finance a very expensive development. The plaintiffs have failed to establish that they had the financial resources necessary to proceed with the proposed horticultural development. The planning permit application rejected by the City of Casey on 8 February 2022 involved the construction of 304 greenhouses together with associated vehicle access areas and a staff car park, a warehouse and administrative building. An initial, larger version of the proposed horticultural development was costed at $68 million. However, the plaintiffs did not obtain revised costings for the smaller proposed development which was the subject of the planning permit application rejected on 8 February 2022. The plaintiffs were in discussions with potential investors, including Rabo Bank, but no agreement for the provision of finance had been concluded prior to the rejection of the planning permit application. The plaintiffs’ accountant, Mr Davies, was not able to state that the project, which was the subject of the planning permit application, was commercially viable. He had been involved in high level and preliminary discussions with representatives of Rabo Bank but these had not resulted in an agreement to provide finance.
Even if, contrary to the findings set out above, the plaintiffs had established that Veolia’s use of its land as a landfill site had prevented the plaintiffs from developing their land for horticultural purposes, this would not constitute an actionable nuisance. An activity on a defendant’s land which does not interfere with an existing use but which might interfere with a future potential use of land does not constitute an actionable nuisance. In Fearn v The Board of Trustees of the Tate Gallery Lord Leggatt (with whom Lord Reed and Lord Lloyd-Jones agreed) said:
One alternative approach would be to treat an activity as an actionable nuisance even though it is not interfering with any actual use of the claimant’s property if it impairs a potential use. Such an approach would have allowed Dr Sturges (or his predecessor in title) to bring an action to stop the use of Mr Bridgman’s pestles and mortars before the consulting room was built even though that use was then causing no material inconvenience, on the basis that the noise and vibrations would prevent the ordinary use of any new room that his neighbour might wish to build against the party wall. There are good reason why the law does not permit such a claim. First, requiring actual interference to be shown allows someone in Mr Bridgman’s position to make use of his land, at least for the time being, in a way that benefits him and is not inconveniencing his neighbour. Second, the potential conflict of use might never actually arise. For example, Mr Bridgman’s neighbour might never have chosen to build a new room on the other side of the party wall or Mr Bridgman might have installed new kitchen equipment which did not cause the same noise and vibrations, or his premises might have been converted to a different use. It is not desirable to have litigation about possible future conflicts that may never actually occur.
The migration of subsurface LFG from Veolia’s land on to the plaintiffs’ land does not interfere with the existing low level agricultural use of the plaintiffs’ land. However, the migration of LFG from Veolia’s land to the plaintiffs’ land does interfere with the potential use of the land for horticultural purposes because the green houses which would be constructed as part of any horticultural development are potential receptors for subsurface gas migrating on to the plaintiffs’ land. The interference with this potential use of the plaintiffs’ land is not an actionable nuisance.
The reasoning in Fearn set out above is directly on point. Any interference with the potential use of the plaintiffs’ land for horticultural purposes might not occur. The plaintiffs might not obtain a planning permit because they cannot satisfy the requirements of the City of Casey for additional information regarding the feasibility, design and construction of a VCS. Alternatively, the plaintiffs may not have the financial resources to be able to proceed with the proposed horticultural development. As Lord Leggatt observed it is not desirable to have litigation about possible future conflicts that may never actually occur.
The plaintiffs’ claim for damages for nuisance must be dismissed. However, the plaintiffs have succeeded in establishing an entitlement to relief under s 309 of the Act based on a breach of clause 5 of the licence and s 25(1) of the Act.
Remedy
Veolia has not complied with clause 5 of the licence and has breached s 25(1) of the Act. Section 309(1) of the Act confers power on the Court to restrain a person from engaging in specified conduct or requiring a person to take such action as the Court considers appropriate. Section 309(2)(a) provides that an order under s 309(1) may require a person to do a specified act or thing that the Court considers necessary to prevent, minimise or remedy the contravention or non-compliance. The power conferred on the Court by s 309(1) is a broad discretionary power. However, the discretion is not unqualified. Section 309(2) provides that an order under s 309(1) may require a person to do a specified act or thing which the Court considers reasonably necessary to prevent, minimise or remedy the contravention or non-compliance.
On 15 March 2024 during the course of Veolia’s final closing submissions, counsel for Veolia proffered an undertaking to the Court in the following terms:
Regardless of the outcome of this proceeding, the defendants by their counsel undertake to the Court to:
1.Conduct a Landfill Gas Risk Assessment (LGRA) to evaluate the performance of the landfill gas extraction system in relation to cells 11, 12 and 13 at the Hallam Road Landfill, such evaluation to be verified by the environmental auditor appointed by the Environment Protection Authority Victoria (EPA), and to implement any recommendations in relation to the extraction system which arise from the LGRA; and
2.Provide the EPA with a final cap design for cells 12 and 13 at the Hallam Road Landfill by 30 June 2024, and to use reasonable endeavours to progress the construction of the final cap following approval of the cap design by the EPA.
The undertaking proffered by Veolia raises the question of whether any orders are reasonably necessary. However, before addressing this question, a threshold question arises as to whether the Court can accept an undertaking for the purpose of the final disposition of the proceeding if the Court does not otherwise have power to make orders in the terms of the undertaking. This threshold issue arises because of the opening words of the undertaking: ‘Regardless of the outcome of this proceeding, the defendants by their counsel undertake to the Court’. Counsel for Veolia confirmed that the undertaking was proffered on the basis that it would operate even if the Court concluded that Veolia had not breached clause 5 of the licence and s 25 of the Act.
The basis upon which the undertaking was proffered is misconceived. The Court can only accept an undertaking if it has power to make an order in the terms of the undertaking. The Court only has such power if it is satisfied that there has been a breach of clause 5 of the licence and/or s 25 of the Act. Veolia proffered the undertaking for the final disposition of the proceeding irrespective of whether the Court made a finding that it had breached clause 5 of the licence and/or the GED. As the basis upon which the undertaking was proffered is misconceived it is not appropriate to accept the undertaking.
The judgment of the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission is authority for the proposition that a court cannot accept an undertaking for the purpose of final disposition of a proceeding if the court does not otherwise have power to make orders in the terms of the undertaking. In Thomson the plurality stated:
Limitations which affect the court’s jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction. The court cannot escape such limitations by the expedient of accepting an undertaking in lieu of an injunction. The court cannot put itself in the position of enforcing conduct which it has no capacity to command or compel. No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation, as Deane and Fisher JJ observed, even though it is not in a form which falls within s 80. But, with great respect to their Honours, this does not justify the conclusion that the Court has power to accept an undertaking by way of final disposition of the case when the Court lacks power to make a formal order in that form and the effect of the undertaking is to restrain conduct which the Court has no power to restrain.
I have concluded that Veolia has breached clause 5 of the licence and s 25(1) of the Act. Although the Court has power to make an order in the terms of the undertaking, the form of the undertaking is fundamentally flawed because it purports to operate irrespective of whether the Court makes the findings necessary to enliven the power conferred by s 309(1) and (2) of the Act. However, even if the form of the undertaking was not deficient, I would not make orders in the terms of paragraphs 1 and 2 of the undertaking because I consider the relief contained therein to be inappropriate.
Paragraph 1 of the undertaking has the potential to improve the efficiency of the LFG extraction system which in turn has the potential to reduce the amount of LFG which is being emitted from cells 11, 12 and 13. Notwithstanding this beneficial effect of the undertaking, paragraph 1 is deficient. First, it does not prescribe a timeframe for the evaluation of the performance of the LFG extraction system in relation to cells 11, 12 and 13. Second, the terms of the undertaking are too narrow because the evaluation of the performance of the LFG extraction system is confined to the existing infrastructure connected to cells 11, 12 and 13. I accept that it is appropriate that there be an evaluation of the performance of the LFG extraction system in relation to cells 11, 12 and 13. This evaluation should form part of the RAP, the preparation and implementation of which I propose to order. Enhancements to the LFG extraction system should not be confined to the existing infrastructure connected to cells 11, 12 and 13. I propose to order that as part of a RAP an environmental auditor will be required to consider and make recommendations for the installation of additional LFG extraction wells along the eastern boundary of Veolia’s land adjacent to cells 11, 12 and 13. Mr Lane agreed that it is possible to augment the existing LFG extraction system infrastructure by installing additional LFG extraction wells adjacent to cells 11, 12 and 13 and to connect the wells to the existing infrastructure connected to cells 11, 12 and 13. Mr Lane described this option as a ‘variant to the vent curtain system proposed by the plaintiffs’. He described this as a ‘remedial option that is there to be assessed’.
The auditor will also be required to consider and make recommendations in relation to sinking additional extraction wells in cells 11, 12 and 13. By letter dated 21 April 2023 Veolia’s environment auditor, Tonkin and Taylor, provided comments on the draft March 2023 risk management and monitoring program prepared by Resolve Environmental Pty Ltd. Commenting on section 5.2.1 of the RMMP Tonkin and Taylor stated:
Suggest that comment could be made on the intent to target early control of LFG within the cell, aimed at minimising the risk of low level fugitive waste odours and LFG odour during cell filling. I note that the well spacing is determined by LMS. As discussed on other occasions, this is a potential weakness as the extraction well layout is optimised for commercial LFG extraction, not odour control. Operators responsible for both aspects of the design tend to use closer well spacing (perhaps a 25m grid and certainly no more than 30m typically).
The auditor will also be required to consider whether improvements can be made to the design of the extraction wells to reduce LFG leaks. This was recommended by Tonkin and Taylor in their draft Operations Audit Report dated 12 January 2024 as set out above.
The existing LFG extraction system is optimised for commercial LFG extraction. LMS as the operator of the plant has a commercial incentive to maximise its revenue from the operation of the plant. LMS is not necessarily focussed on environmental issues such as minimising LFG concentrations outside of the cells and the risk of subsurface LFG migration on to the plaintiff’s land. An environmental auditor conducting a review of the current LFG extraction system will be required to consider whether it is appropriate to enhance the existing infrastructure with a view to reducing concentration of LFG along the eastern boundary of Veolia’s land adjacent to cells 11, 12 and 13.
Veolia did not submit that the terms of its contract with LMS constrained the Court from making any orders which will result in an enhancement of the LFG extraction system. The undertaking which it proffered to the Court included an undertaking to implement any recommendations arising out of the evaluation of the performance of the LFG extraction system, in relation to cells 11, 12 and 13. Further, Veolia cannot avoid the consequences of finding that it has breached its licence obligations and the GED by recourse to the terms of a contract with LMS.
Paragraph 2 of the undertaking has two components. First, a commitment to provide the EPA with a final cap design for cells 12 and 13 by 30 June 2024. Second, a commitment to use ‘reasonable endeavours’ to progress the construction of the final cap following approval of the cap designed by the EPA. I infer that Veolia would not have proffered an undertaking to provide the EPA with the final cap design for cells 12 and 13 by 30 June 2024 if the design was not yet finalised or nearly finalised. I propose to order Veolia to forthwith provide the EPA with a final cap design for cells 12 and 13. I propose to order Veolia to forthwith with the construction of the final cap following approval of the cap design.
The undertaking proffered by Veolia is subject to its using ‘reasonable endeavours’ to progress the construction of the final cap. Veolia’s obligation to comply with the Court’s orders should not be qualified by using reasonable endeavours to progress the construction of the final cap. Contractual obligations framed in terms of reasonable endeavours are ordinarily inserted into commercial contracts between parties at arms-length who have their own independent business interests. The qualification of reasonableness is directed to situations of conflict between the obligation to undertake an agreed task and the independent interests of the contracting party who is contractually bound to undertake a particular task. These considerations are not relevant to Veolia’s obligation to comply with a court order. In particular, if compliance with the Court’s orders would conflict with Veolia’s commercial interests this would not provide any justification for Veolia not to comply with the order. Further, if compliance with the Court’s orders is subject to Veolia’s reasonable endeavours there is potential for debate as to whether Veolia has used reasonable endeavours to progress construction of the final cap following approval of the cap designed by the EPA.
I do not consider Veolia to be prejudiced by an order in unqualified terms requiring it to forthwith progress construction of the final cap of cell 12 and 13 following approval of the cap designed by the EPA. Veolia will comply with the order if it acts promptly to engage third party contractors to construct the final cap following EPA approval of the design.
Earlier in this judgment I have concluded that Veolia has not breached clause 5 of the licence by reason of its failure to assess the feasibility of the construction of a vent curtain system. For the reasons which underpin that conclusion I do not propose to make orders as set out in [8] of the plaintiffs’ proposed orders requiring Veolia to instruct an auditor to determine the feasibility of a 600 metre VCS along the eastern boundary of Veolia’s land. I am not satisfied that this order is reasonably necessary to prevent, minimise or remedy Veolia’s breach of clause 5 of the licence and s 25 of the Act. The order sought by the plaintiffs would do no more than allow for an assessment of the feasibility of a VCS. If such an order was made it would still be necessary for the VCS to be designed and approved by the EPA and the City of Casey.
Prior to the commencement of the proceeding the plaintiffs could have undertaken their own assessment of the feasibility of a VCS and engaged an appropriately qualified environmental auditor to design a VCS. The AEA report provided to the plaintiffs in July 2021 recommended this course of action. The plaintiffs could have come to Court seeking orders requiring Veolia to construct a VCS in accordance with an approved design. By analogy, this is what occurred in Gales Holdings Pty Ltd v Tweed Shire Council (‘Gales’). The judgment of the Court of Appeal summarises the orders made at first instance as follows:
[7] On 13 March 2012, for reasons published on 21 September 2011, the Chief Judge in Equity:
·declared that, on and from 4 May 2004, the Council had been and continued to be guilty of nuisance by discharging untreated stormwater from its drains onto the Land and preventing stormwater from flowing away from the Land;
·ordered the Council to pay damages of $600,000 to Gales;
·ordered that if Gales be required to maintain a habitat for the Wallum froglet, the Council pay to Gales 30% of Gales’ costs of treating the stormwater runoff to make it suitable for the Wallum froglet habitat up to the date of completion of either its drainage works on the Land or of the Blue Jay Circuit Scheme, whichever be the earlier;
·ordered the Council to pay to Gales damages in the sum of $150,000 for the costs of expert advice and assistance in respect of the table drain installed on the Land in 2004 and the costs of and associated with its construction;
·ordered the Council to undertake works at its own cost on the Quigan Street drainage outlets in accordance with a concept plan and specifications identified in the order; and
·ordered the Council to pay 75% of Gales’ costs of the proceedings.
The order requiring the Council to undertake works at its own costs on the Quigan Street drainage outlets in accordance with the concept plan and specification identified in the primary judges’ order was not challenged on appeal.
In Gales the Court made an order which specified the particular works which the defendant was required to undertake. Neither party referred me to any authority where a court has made an order of the type sought in [8] of the plaintiffs’ proposed order. My own research has not disclosed any precedent for the Court to make such an order.
I propose to make the following orders:
1. The Court declares that:
(i) The second defendant failed to comply with the requirements of condition OL–L5 of licence OL00069939 between 1 July 2022 and 30 October 2023 by failing to take all practicable measures to prevent emissions of landfill gas from exceeding the action levels prescribed in table 6.4 of the Best Practice Environment Management, Siting, Design, Operation, and Rehabilitation of Landfills (Environment Protection Authority Publication 788);
(ii) The second defendant contravened s 25(1) of the Environment Protection Act 2017 between 1 July 2022 and 30 October 2023 by failing so far as reasonably practicable to minimise the risk that its storage and possession of waste may give rise to a risk of human harm as a result of the migration of methane gas and carbon dioxide onto the plaintiffs’ land:
(a) by failing to use and maintain its gas extraction system in a manner that minimised risk of harm to human health and the environment from pollution and waste; and
(b) by failing to prepare and implement a remediation action plan.
(iii) The second defendant contravened s 25(1) of the Environment Protection Act 2017 between 1 July 2022 and 30 October 2023 by failing so far as reasonably practicable to minimise the risk that its storage and possession of waste may give rise to a risk of an adverse effect on vegetation on the plaintiffs’ land:
(a) by failing to use and maintain its gas extraction system in a manner that minimised risk of harm to human health and the environment from pollution and waste; and
(b) by failing to prepare and implement a remediation action plan.
(iv) The second defendant contravened s 25(1) of the Environment Protection Act 2017 between 1 July 2022 and 30 October 2023 by failing to so far as reasonably practicable to minimise the risks that its storage and possession of waste may give rise to a risk of an adverse effect on the amenity of the plaintiffs’ premises that unreasonably interferes with the plaintiffs’ enjoyment of their premises:
(a) by failing to use and maintain its gas extraction system in a manner that minimised risk of harm to human health and the environment from pollution and waste; and
(b) by failing to prepare and implement a remediation action plan.
2.The second defendant must forthwith engage an environmental auditor to prepare a landfill gas remediation action plan identifying practicable measures to reduce emissions of landfill gas at the landfill boundary. The measures to be considered by the environmental auditor are to include measures to enhance the efficiency of the gas extraction system including but not limited to:
(i) increasing the existing number of pumps, turbines and flares which comprise part of the system;
(ii) sinking additional gas extraction wells in the area of land adjacent to cells 11, 12 and 13 and the landfill boundary and connecting these wells to the existing gas extraction system infrastructure.
(iii) sinking additional wells into cells 11, 12 and 13.
(iv) reviewing the design of gas extraction wells to identify and recommend improvements to reduce leakage of landfill gas from the extraction wells.
3.The landfill gas remediation action plan must be verified by an environmental auditor as taking all practicable measures to reduce emissions of landfill gas at the landfill boundary.
4.The second defendant must forthwith implement any measures identified in the landfill gas remediation action plan as verified by the environmental auditor.
5.The second defendant must forthwith provide the Environment Protection Authority with the final cap design for cells 12 and 13 at the Hallam Road landfill and following approval of the cap design by the Environment Protection Authority must forthwith progress construction of the final cap.
There is some uncertainty attending the orders I propose to make. In particular, there is uncertainty as to the measures identified by an environmental auditor and the timeframe for the implementation of the measures. Given this uncertainty it is not appropriate to make final orders disposing of the proceeding. Rather, I shall stay the operation of the mandatory injunctions requiring implementation of the measures identified by the environmental auditor until 26 August 2024. I shall direct Veolia to file and serve an affidavit by 4:00pm on 15 August 2024 which annexes the environmental auditor’s remediation action plan. The proceeding will be listed for further hearing on 19 August 2024. On 19 August 2024 I shall hear submissions as to the form of order to give effect to the measures identified by the environmental auditor.
The plaintiffs are to file and serve submissions on the costs of the proceeding not exceeding 10 pages in length by 4:00pm on 25 July 2024. The defendants are to file and serve submissions not exceeding 10 pages in length by 4:00pm on 1 August 2024. I shall determine the question of costs on the papers and will make orders as to costs following the hearing on 19 August 2024.
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SCHEDULE OF PARTIES
| FLORENCE WINSOME ANDERSON, LINDSAY CLIFTON ANDERSON, IAN RICHARD ANDERSON AND ROBERT GREGORY ANDERSON | Plaintiffs |
| AND | |
| PWM (LYNDHURST) PTY LTD (ACN 005 470 584) | First Defendant |
| AND | |
| SUEZ RECYCLING & RECOVERY PTY LTD (ACN 002 902 650) | Second Defendant |
Annexure A: Extracts of Master LFG Borehole Spreadsheet
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