Kingston City Council v Transpacific Waste Management Pty Ltd
[2013] VSC 441
•21 August 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. SCI 2012 3555
BETWEEN
| Kingston City Council | Applicant |
| and | |
| Transpacific Waste Management Pty Ltd | Respondent |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2013 | |
DATE OF JUDGMENT: | 21 August 2013 | |
CASE MAY BE CITED AS: | Kingston City Council v Transpacific Waste Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 441 | |
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PLANNING AND ENVIRONMENT – Appeal from VCAT – Application by landfill operator to extend time under a permit for the completion of the development and use of land for tipping operations - Whether the permit imposed a limitation on the air space that could be filled – Whether a representation made by the operator to the responsible authority when seeking approval for amended plans imposed a limitation on the airspace that could be filled – Criteria for the extension of time for the completion of a use and development – Whether the permit contained a valid ‘secondary consent’ power allowing for an extension of time for the completion of the permitted use – Whether VCAT acted in excess of jurisdiction in granting the extension of time - Whether VCAT erred in law in refusing to allow the introduction of evidence during closing submissions –Planning and Environment Act 1987 (Vic) ss 62, 68, 69, 81, 149
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Appadurai | Russell Kennedy |
| For the Respondent | Mr J Gobbo QC Mr D Deller | Norton Rose Australia |
HER HONOUR:
Introduction
The respondent, Transpacific Waste Management Pty Ltd, is the operator of a landfill located in Fraser Road, Clayton South. The landfill deals with putrescible and solid inert waste and has been in operation since 1998 pursuant to a permit issued on 24 February 1998 for the use and development of the subject land for landfill (the ‘permit’).[1] Condition 53 of the permit provides that it will expire if tipping operations are not completed within 11 years of the date of the permit. However, the responsible authority may extend this period if a request is made in writing before the permit expires or within three months afterwards.
[1]Permit Application Number KP97/289/A.
On 18 December 2008, Transpacific applied to the Kingston City Council for an extension of the permit, effectively until 24 February 2019. This date was subsequently revised to 30 June 2017.
On 18 May 2011, Council resolved to refuse the request for an extension. Among the reasons for the Council’s refusal were changes to the planning controls applying to the site that made the use and development non-conforming and the fact that the initial life of the permit was considered to be sufficient to exhaust the capacity of the landfill site.
Transpacific applied to the Victorian Civil and Administrative Tribunal for review of the Council’s decision to refuse to extend the permit. In fact, Transpacific made two applications for review:
(a)an application under s 81(1)(a) of the Planning & Environment Act 1987 (Vic) (the ‘Planning Act’) to review the decision not to extend the time for completion of the development under the permit; and
(b)an application under s 149 of the Planning Act to review the Council’s decision not to extend the use of the site by way of its discretion under the secondary consent provision in Condition 53 of the permit.
On 25 May 2012, the Tribunal extended the time for completion of the use and development of the land as landfill until 30 June 2017, ordering that the period to complete the use and development of the land was extended to 30 June 2017.[2]
[2]The Tribunal made the following order:
(a)In application P1884/2011, the decision of the Responsible Authority is set aside. The time within which the development described in permit number KP97/289/A is to be completed is extended to 30 June 2017; and
(b)In application P1889/2011, the decision of the Responsible Authority is set aside. The time specified in condition 53 of permit number KP97/289/A to complete the use of the land allowed by the permit is extended to 30 June 2017.
In this proceeding, the Council seeks leave to appeal against the order of the Tribunal.[3] The Council’s complaint is, in substance, that the landfill operator has impermissibly created additional air space for filling and so pushed out the date for the completion of filling and rehabilitation, and that the Tribunal failed to consider the scope of the permit when deciding to extend it for the purposes of filling existing voids.
[3]By Order dated 31 August 2012, the Court ordered that the application for leave to appeal and the appeal itself be heard at the same time.
For the reasons that follow, I have concluded that leave to appeal should not be granted as the Tribunal’s decision is not attended by sufficient doubt to warrant the grant of leave.
Background
The land
The landfill site was a former sand quarry. Sand mining ceased in about 2001, that is, some three years after filling began. The exercise of extraction and filling occurred by reference to cells and sub-cells, with the sequences of extraction, filling, capping and rehabilitation of cells overlapping to some extent. Much of the site had already been filled and (partially) rehabilitated by the time Transpacific applied for the extension of the permit in late 2008.
The area of the landfill site that remained to be filled at the time of the hearing in the Tribunal was an area described as ’16 North’ in the north west quadrant of the site, and the voids or cells which remained to be filled (cells 5C-2 and 5C-3) were located in the northern half of 16 North.[4] Transpacific estimated that there was approximately 1.9 million cubic metres of air space left to fill.
[4]According to the Council, the sequence of ‘excavation’ and filling in 16 North is/was as follows:
The permit
The permit is expressed to allow the following:
To use and develop this land for the purpose of a major utility installation (disposal of putrescible and solid inert waste by sanitary landfill) and to construct buildings and works for such use subject to the following conditions.
Condition 2 provides that prior to the commencement of landfilling, an operating plan to the satisfaction of the responsible authority must be submitted and approved by the responsible authority following consultation with the Department of Infrastructure. The plan must include a landscape plan showing specified matters, a layout plan showing the size and location of all buildings and works, a landfill cell development plan showing the location and sequence of development for each of the proposed cells for putrescible waste and an estimated timetable of completion for each cell development stage and the final level shown on the landscape plan having regard to a number of matters, including the suitability of the land for a golf course after use.[5]
[5]Condition 3 provides that the use and development as shown on the endorsed plan must not be altered without the consent of the responsible authority.
It will be observed that the operating plan is not required to specify volumes to be filled. At best, the estimated timetable for completion for each cell development stage might give an indication of the volume available for fill in a cell, but that would be a matter for inference, which would require further information .
Conditions 5 and 6 are operating conditions and provide that refuse and rubbish deposited at the site shall (to the satisfaction of the responsible authority) consist of putrescible and solid inert waste from domestic, municipal, commercial and industrial sources, but shall not include liquid wastes, night soil or grease trap waste. The use and the development of the site must at all times comply with the requirements of any regulation made or licence granted pursuant to the Environment Protection Act1970 (Vic) or any other relevant Act.
Condition 21 provides that the landfill area shall be progressively formed by cells to achieve the final contours shown on the endorsed plan. Condition 22 makes provision for final cover or capping of the cells.
Condition 52 provides that in the event of any inconsistency between the conditions and requirements of this permit and the conditions of any works approval and licence issued by the Environment Protection Authority under the provisions of the Environment Protection Act1970, the conditions and requirements of such works approval and licence shall prevail.
As discussed, Condition 53 provides that the permit will expire if tipping operations are not completed within 11 years of the date of the permit and that the Council may extend this period if a request is made in writing before the permit expires or within three months afterwards.
The permit otherwise provides for such matters as operations and site management, dust control, odours, access to the site, vermin control, litter, methane gas collection, buffer areas and hours of operation.
The permit says nothing about the capacity of the landfill or permissible filling volumes. The endorsed plans and amended endorsed plans say nothing about capacity or filling volumes.
The 2003 letter
On the fourth day of the Tribunal hearing, it came to the attention of the Council (via the submissions of a respondent, the adjacent golf club) that the previous landfill operator, Pioneer, had written to the Council on 24 June 2003 in support of its application to amend the endorsed plans (the ‘2003 letter’). Pioneer sought the Council’s approval for new contour plans, arguing that the proposed changes to the final contours constituted a minor amendment because, among other reasons, the new final contours resulted in approximately 290,000 cubic metres less air space above natural surface than the original final contours and that the proposal therefore provided for the site to be filled more quickly.
The 2003 letter referred to changes in air space in the following terms:
The volume of air space above natural surface, allowing for the thickness of the final cap, has been calculated by Landair Surveys for Stage 1 to 6 to within 2% of the true value (correspondence attached). Landair calculate that:
·for the southern portion of the site (Stages 1, 2, 3 and 4) the air space for the Endorsed Plan is 867,535m³ and the air space for the proposed amended plan is 811,840m³; and
·for the whole of the site (Stages 1, 2, 3, 4, 5 and 6) the air space for the original endorsed plan is 1,738,825m³ and the air space for the proposed amended plan is 1,449,000m³.
There has been a net loss of air space 290,000m³. Stage 7 and 8 have not changed from the Endorsed Plan.
This advice was given in the context of the submission of rehabilitation plans to include new pre-settlement level contours and changes to the drainage of the rehabilitated site due to Melbourne Water’s requirement to provide a retarding basin.
The Council subsequently approved the amendment to the endorsed plans. It now submits that the air space volumes in the 2003 letter formed part of the permit and imposed a limitation on the amount of air space that could be filled pursuant to the permit.
The 2008 letters
In submissions made on the final day of the Tribunal hearing,[6] Senior Counsel for Transpacific told the Tribunal that the total volume of 16 North would ‘have to have been about 6 million cubic metres’ based on the assessment in the 2003 letter and the size of two of the cells in 16 North.
[6]16 May 2012.
In response to this statement, the Council sought to introduce letters dated 15 August 2008 and 18 December 2008 from Transpacific to the Environment Protection Authority (‘EPA’) (the ‘2008 letters’), which the Council said disproved Transpacific’s statement about the total volume of 16 North and were relevant to its contention that the operators had exceeded the air space allowed to be filled pursuant to the permit.
The letter of 15 August 2008 deals with black sand stockpile volumes and rehabilitation of a number of landfills, including the landfill in question. In respect of black sand stockpiles, the letter contains a table with a column headed ‘Estimated available air space at landfill as at 8 June 2008’. For the landfill in question, the estimated available air space is given as 3,020,500 cubic metres. A further table under the heading ‘Rehabilitation of landfills’ refers to the estimated volume of slimes dams present at the site as 600,000 cubic metres.
The letter of 18 December 2008 is a request to amend capping conditions imposed by the EPA. The letter seeks to explain why the existing progressive rehabilitation conditions and timelines have not been met, and requests amendment of certain conditions. The letter records that existing slimes remaining in the north-eastern section of the site are being excavated in order to create air space and prepare the area for future landfill cell construction.
The Council sought to put the 2008 letters in evidence during its reply submissions on the last (5th) day of the Tribunal hearing, after each party had closed its case and filed any additional written submissions pursuant to an earlier ruling. The application was the subject of a further ruling by the Tribunal refusing leave to introduce the 2008 letters into evidence.
The Tribunal’s decision
In reviewing the Council’s decision to refuse to extend the permit, the Tribunal identified two key issues:
(a) Was the continued use and development of the land for a landfill appropriate having regard to planning and environment policy?
(b) Would the proposed continued use and development have unreasonable impacts on the amenity of the area?[7]
[7]Transpacific Waste Management Pty Ltd v Kingston CC & Ors [2012] VCAT 693 (‘Reasons’) [12].
Before answering these questions, the Tribunal considered issues that the Council, in particular, submitted were relevant in determining whether to extend the permit, including the application of the principles identified by the Court in Kantor v Murrindindi Shire Council[8] and whether it was likely that a permit would be granted should a fresh application be made.
[8](1997) 18 AATR 285 (‘Kantor’).
The Tribunal noted that the criteria in Kantor were generally accepted to be relevant in circumstances involving the extension of time to commence use or development, but that it had been consistently held that other criteria might be relevant for applications for extensions of time to complete a development.[9] Noting that none of the criteria were mandatory, the Tribunal said that it was useful to have regard to all the criteria, but on the basis that they were guidelines only.[10]
[9]Reasons [18]–[20] and see Juric v Banyule CC [2002] VCAT 396; Tylden Nominees Pty Ltd v Macedon Ranges SC [2004] VCAT 1655; Australand Holdings Limited v Yarra CC [2005] VCAT 2716.
[10]Reasons [22].
The Tribunal ultimately concluded that applying the criteria to the circumstances of the case supported an extension of time for both the use and development of the site.[11]
[11]Ibid [23].
Other than to submit that the Tribunal was first required to determine the capacity of the landfill under the permit in order to understand what it was being asked to extend, the Council makes no complaint about this analysis.
The Tribunal considered the Council’s submission that an application for a new landfill permit would not be granted today where parts of the landfill did not comply with today’s standards. It rejected the Council’s contention as to what should be considered as the basis for testing whether a fresh permit would be issued. Accepting that Transpacific would face challenges gaining approval if a request for a new landfill permit was made today, the Tribunal said that it was artificial to suggest that it had to assess the likelihood of a fresh permit being granted on the basis of a new landfill as distinct from the completion of an existing landfill.[12] The Tribunal concluded that, should a fresh application be made, based on the zoning of the land (Industrial 1) and compliance with planning and environmental policies, there was a good probability that a permit would be issued for the use of the land as a landfill for putrescible and solid inert waste and the development of cells 5C-2 and 5C-3, plus final rehabilitation works for the land as a whole.[13]
[12]Ibid [28].
[13]Ibid [29].
Again, no specific complaint is made about this analysis.
The Tribunal further observed that the need for additional time to complete the landfill was a product of ‘the dynamic nature of landfill operations’ and that it was impossible to be absolutely precise about the length of time it would take to complete the filling. Although the time limit originally imposed was appropriate based on best calculations at that time, it had been proven to be inadequate through no fault of Transpacific.[14] Among other things, the Tribunal found that a refusal to extend time would create significant and unnecessary environmental problems by leaving substantial voids unfilled and rehabilitation works uncompleted. It noted that the EPA had identified likely problems to include the release of landfill gas from the old landfill, water ponding, landfill gas generation and difficulty with capping and rehabilitating the site. According to the Tribunal, avoiding such problems was a further reason for extending time under the permit. Furthermore, if the permit was not extended to enable the remaining cells to be filled, there would be a loss of available landfilling area for putrescible waste, which represented a loss of a valuable community resource.[15]
[14]Ibid [30]-[31].
[15]Ibid [34]-[36].
Having considered whether the continued use and development of the land for landfill was appropriate having regard to planning and environment policy and whether the proposed continued use and development would have unreasonable impacts on the amenity of the area, the Tribunal turned, finally, to address what it described as ‘a particular issue in the Council’s case’.
The particular issue in the Council’s case was that by removing slimes from the northern portion of the site, the operators, past and present, had created additional air space for filling (or ‘voids’) and so pushed beyond the anticipated closure date.[16] According to the Council, sufficient time was initially given to the landfill operator to complete filling of the site.[17]
[16]Ibid [112].
[17]Ibid [111].
Dealing with this submission, the Tribunal said:
We question the relevance of such a position and more so the veracity of such a complaint. It is evident to us from the previous decisions, submitted plans and licensing approvals that the removal of slimes from the northern area was always intended, as was filling of the void to an agreed final surface level. The filling was approved on the basis of a cell by cell operation, with inert solid waste in the north-east corner closest to residential properties and putrescible waste over the remaining northern area.
In our view, nothing has changed with respect to this mode of final filling and closure of the site.[18]
[18]Ibid [113]-[114].
The Tribunal rejected the proposition that amendment of the plans of final contours following the 2003 letter was only approved by the Council on the basis of the revised air space calculations contained in the 2003 letter and that the understanding as to the volume of air space to be filled formed part of the permit. It expressed itself not to be persuaded that the exchange between Pioneer and the Council in 2003 about available air space should be construed as in any way limiting the available air space or the site’s final completion with putrescible waste.
On the question of available air space and the Council’s submission that the permission granted limited the air space for filling, the Tribunal concluded:
…we consider that this argument is spurious as to why the permit should not be extended… The real value in understanding the volume of air space that has been filled and that remains to be filled is to assist us in determining how much longer the landfill may operate and therefore the length of extension of time necessary for the permit.[19]
[19]Ibid [126].
Having dealt with the issues raised by the Council, the Tribunal returned to the two key issues identified as critical to its decision whether to extend the permit and concluded as follows:
We have concluded that the continued use and development of the land for a putrescible and solid inert waste landfill is appropriate having regard to planning and environmental policy. We do not consider that the continued use and development of the land for this purpose will have unreasonable impacts on the amenity of the area or unacceptable levels of risk to the environment. Having regard to the other criteria, which are relevant in assessing applications to extend time for completion of use and development allowed under a permit, we consider there are no reasons why time should not be extended.
We therefore determine to extend time for completion of the development under the permit pursuant to section 81(1)(a) of the Planning and Environment Act 1987 and extend time for completion of the use allowed by the permit by way of secondary consent pursuant to section 149 of the Act. The extension of time in each case will be until 30 June 2017.[20]
[20]Ibid [132]-[133].
Grounds of appeal
The proposed notice of appeal sets out the Council’s grounds of appeal as follows:
1. The Tribunal erred in law in interpreting the scope of the permission allowed under the permit in that it failed to properly give effect to the plans endorsed under the permit and the limitations consequent upon the endorsement of those plans described in the 2003 letter,[21] in circumstances in which:
[21]From Pioneer Australia Waste Management Pty Ltd of 24 June 2003 to the Council.
(a) the limitations imposed by the applicant for that permission ought properly be considered to circumscribe the permission subsequently granted upon endorsement of the plans; and
(b) that task of interpreting the scope of that permission could not be limited to the words of the permit alone.
2. The additional words contained in the second sentence in condition 53 of the permit did not confer any ‘secondary consent’ power, whether for the permit as a whole or limited only to the use aspect of the permit, in the circumstances that the:
(a) only source of any power to extend time under the permit was contained in s 69 of the Planning and Environment Act 1987 (Vic); and
(b) summary repetition of that power in that sentence could not create any additional power whether by ‘secondary consent’ or otherwise.
3. The Tribunal erred in law in refusing to allow the introduction of the 2008 letters, and failed to take into account relevant considerations, in the circumstance in which:
(a) the content of those letters amounted to clear contradiction of the evidence and submissions put forward on behalf of the first respondent [Transpacific] before the Tribunal; and
(b) that information was relevant material which the first respondent [Transpacific] was, in any event, obliged to produce before the Tribunal but failed so to do.
In submissions, the Council raised two additional grounds, which are closely related to Ground 1, in that they concern the alleged creation of additional voids by the landfill operator:
4. The permit, properly construed, did not authorise the creation of voids which did not exist at the time of the grant of the permit, in circumstances in which:
(a) the permit itself does not include express provision for the creation of any such new voids;
(b) notwithstanding the ‘dynamic nature of land fill operations’, the original time to complete allowed under the permit of 11 years could not have been based upon considerations other than what was then known about the air space in the voids then remaining as a result of the past sand-mining operations; and
(c) the terms of condition 52 of the permit, properly construed, could not be relied upon to allow the creation of new voids (whether in accordance with approvals granted by the Environment Protection Authority or otherwise) which would have the effect of altering the scope of the substantive permission granted under the permit.
5. By its decision to extend the permit to allow time for the completion of land fill operations, the Tribunal acted in excess of its jurisdiction under 69(2) of the Planning and Environment Act, in that it authorised the filling of voids created after the grant of the permit and upon terms other than upon which the permit had been granted.
Grounds relating to the scope of the permit – Grounds 1, 4 and 5
In oral submissions, the Council’s central complaint about the inquiry conducted by the Tribunal was summarised as follows:
Fundamentally it’s an issue about the proper approach to determining an extension application...one can’t make a decision either on the Kantor criteria or any other criteria, [about] whether to extend the permit until one is clear about what that permit actually allowed.[22]
[22]Transcript of Proceedings, Kingston City Council v Transpacific Waste Management Pty Ltd (Supreme Court of Victoria, S CI 2012 3555, Emerton J, 12 March 2013) 4.
The Council submits that the Tribunal failed to have regard to what the permit actually allowed before deciding to extend time. It contends that the Tribunal erred in interpreting what was allowed by the permit by, inter alia, failing to take into account the limitations on air space to be filled set out in the 2003 letter. According to the Council, the purpose of the application to extend time was to allow sufficient time to complete the use originally permitted. However, what was permitted by the Tribunal was an extension of time to allow for the filling of spaces or voids that were not part of the original permit. The Council contends that a larger volume of air space has been created, that the permit does not allow for that and that the extension therefore purports to permit an expansion of the operation beyond the limits of the permit.
According to the Council, the 2003 letter informed the Council that the total air space remaining to be filled in 16 North and 16 South was then 1,449,000 cubic metres. At that stage, the southern portion of the landfill site represented 811,840 cubic metres that had been filled, which left just over 637,000 cubic metres of air space remaining to be filled as at June 2003.
By contrast, so the Council says, Transpacific’s position before the Tribunal was that even after the filling of parts of the northern section since 2003, there remained 1.9 million cubic metres to be filled. The Council argues that there is a ‘disconnect’ between what the permit allowed and what Transpacific gave as the reason for requiring more time to complete the use and development of the landfill, namely the need to fill 1.9 million cubic metres of space.
The Council’s case is therefore premised on there having been the excavation of voids not permitted by the permit. It relies on BDL Cable & Electrical Company Pty Ltd v the City of Brighton[23] for the proposition that the Tribunal was entitled to have regard to the 2003 letter and use it as an aid to the construction of the permit in circumstances where the permit itself did not expressly deal with volumes of air space to be filled. The 2008 letters are also said to be relevant to this exercise, in that they cast doubt on Transpacific’s submission that the volumes referred to in the 2003 letter did not reflect the total volumes filled or remaining to be filled.
[23](1990) 72 LGERA 227 (‘BDL Cable’).
The Council submits that nothing in the permit constituted approval for the creation of voids not already in existence as a result of sand mining operations, save for the incidental excavation and associated works ordinarily required to prepare existing voids for the purposes of filling. [24] The terms of the permit neither contemplated nor allowed the creation of substantial (more than double) volumes of air space without specific permission under the permit or, more properly, a new permit. The Council contends that while the Tribunal purported to deal with the question of the construction of the permit, it simply failed to determine the scope of the landfill operations allowed under the permit. Instead, it proceeded upon an assumption that excavation (subject to relevant approved rules by the EPA) could be carried out notwithstanding the terms of the permit. However, the permit, properly construed, did not extend to the open-ended scope and operation favoured by the Tribunal, given its concern to accommodate the ‘dynamic nature of landfill operation’.
[24]According to the Council, the fact that the permit does not permit the excavation of additional voids is supported by the purpose described in the permit. It is an not an excavation permit but an extraction permit. Moreover, the main item of plant contemplated by the permit, a compactor and dozer, would not enable the digging of a large void.
According to the Council, insofar as the Tribunal granted an extension of time in the form that it did, which authorised the substantial void created in 16 North, the Tribunal exceeded its jurisdiction. This is because the extension of a permit under s 69 of the Act is limited to extending the permit in the terms in which it was at the time the application was made to extend it.
I do not accept that that the Tribunal made an error of law in relation to the scope of the permission allowed under the permit, that it failed to give effect to the plans endorsed under the permit and the limitations consequent upon the endorsement of those plans described in the 2003 letter or that it exceeded its jurisdiction in granting the extension of the permit.
The permit contains no express limitation on volumes of air space that may be filled. There is a time limit, and that time limit was extended having regard to planning and environmental considerations. Furthermore, there is no ambiguity or lack of clarity in Condition 53 or any other part of the permit that required recourse to the 2003 letter or other extraneous material in order to construe the permit. The 2003 letter is, in my view, not relevant to the scope of the permit or to the Tribunal’s consideration as to whether an extension of time should be granted.
The Tribunal carefully considered the content of the 2003 letter and made findings as to its content that did not support the Council’s contentions about the volume of air space that remained to be filled or that was permitted to be filled by the permit. The Tribunal found that the 2003 letter did not limit the available air space as contended by the Council. This was because, having regard to the references in the letter to the ‘volume of air space above natural surface’ and to the calculations of volumes of material ‘above Original Natural Surface’ in the Landair advice, the 2003 letter did not contain an estimate of volumes for the whole of the landfill but only for that portion of the air space above natural surface level. This was a finding of fact by the Tribunal that is not amenable to challenge under s 148 of the VCAT Act. In any event, it was a finding that was clearly open having regard to the content of the 2003 letter and the attached Landair advice.
The Tribunal’s reasons record that the 2003 letter explained that changes to final contours arose from the overfilling of the southern portion of the site by the then operator. The main concern of the Council and the golf club at the time was the height of the final contours arising from the overfill. The evidence was that agreement was reached to adjust the final pre-settlement and post-settlement contours of the landfill to balance the overfill. The Tribunal also had regard to the advice provided by Landair. The reasons also record that Landair performed calculations of the approved and modified final, pre-settlement contours against the ‘original natural surface’ to calculate the volumes of materials ‘above original natural surface’ that would occur under each plan. The Tribunal therefore concluded that the estimate of volumes was not for the whole of the landfill as was submitted by Council, but related only to that portion of air space above natural surface level.
The Tribunal also considered and rejected Council’s submission that the plans endorsed in 2003 necessarily limited the depth of the final cells to the top of what was the slimes dam area. The Tribunal said as follows:
As we have said, the earliest permissions clearly indicate to us that this area was intended to be excavated to remove slimes for use within the site, whether for sidewall liners or daily cover. This operation has been ongoing unabated by any enforcement action to cease by the EPA or the Council. Indeed, by way of approving the cell designs, the EPA has approved the works. Mr Green’s evidence is that the slimes would have to be removed in order to form a proper base for the landfill cell liners. Such approval is consistent with the initial works approval we have noted earlier, which limited excavation to form cells to not below 18 metres AHD.
Whichever way one looks at this complaint, an expectation that there would be no excavation of slimes in the forming of final cells with a depth comparable to the preceding cells has no foundation in the endorsed plans, permit or licence conditions.[25]
[25]Reasons [124]-[125].
In my view, it was open to the Tribunal to reject the submission that the endorsed plans necessarily limited the depth of the final cells to the top of what was the slimes dam area and to conclude that there was no foundation in the endorsed plans or the permit for the expectation that there would be no excavation of slimes in the in the formation of final cells. Again, this involved findings of fact.
As a result, the Tribunal made no error in interpreting the scope of the permission allowed under the permit and it did not fail to properly give effect to the plans endorsed under the permit. Ground 1 is not made out.
As to Ground 4, to the extent that the Council’s argument is based on allegations of unlawful/unauthorised deeper excavation, the Tribunal found these allegations to be unfounded. The alleged creation of additional voids by the landfill operator was found by the Tribunal not to be substantiated.
The Tribunal did not, in my view, rely upon the terms of Condition 52 to allow the creation of voids which were otherwise not authorised or not already in existence. It did not authorise the filling of voids created after the grant of the permit and upon terms other than upon which the permit had been granted.
Grounds 4 and 5 are not made out.
Ground 2 – secondary consent
Ground 2 is that, properly construed, Condition 53 of the permit does not make provision for any exercise of discretion by the Council (or the Tribunal) to extend the permit to allow for the later completion of the use of the land.
Condition 53 provides that the permit will expire if ‘tipping operations’ are not completed within eleven years of the date of the permit. However, it also provides for the Council to extend the period ‘if a request is made in writing before the permit expires or within three months afterwards’. This purports to be a ‘secondary consent’ mechanism allowing the Council (and the Tribunal on review) to approve changes to the permit. Secondary consent conditions commonly allow for minor amendments to be made to permits without the need for recourse to the permit amendment process in Division 1A of Part 4 of the Planning Act.
The Council submits that while it is not uncommon to include a secondary consent condition in a planning permit, such a condition is only available where there is a primary power to support it and there is no express or implied provision in the Planning Act to support the inclusion of a condition which paraphrases the terms of s 69 of the Planning Act. The Council distinguished Condition 53 from the usual permit condition that departure from endorsed plans may be carried out with the prior approval of the Council on the basis that the latter is founded upon s 62(2)(a) of the Planning Act, which provides that a condition may be imposed requiring specified things to be done to the satisfaction of the responsible authority. According to the Council, the secondary consent in Condition 53 is defective in that it enjoys no such statutory underpinning.
In argument before the Court, very little was made of this ground. Indeed, the Council had to be prompted to say anything about it at all. In response to prompting from the bench, counsel for the Council described it as a ‘secondary matter’ and dealt with it very briefly.
The validity of the secondary consent mechanism in Condition 53 was not raised in the Tribunal. However, if , as a matter of law, there was no power under Condition 53 to extend the time for the completion of the use allowed by the permit, the Tribunal may have made an order that was beyond its power to make. The Court should therefore consider and determine whether the ground of appeal is made out.
The question of law framed by the Council is, in effect, whether the only source of power to extend time under the permit was to be found in s 69 of the Planning Act. Section 69 makes specific provision for the extension of permits as follows:
(1) Before the permit expires or within three months afterwards, the owner or occupier of the land to which it applies may ask the responsible authority for an extension of time.
(2) The responsible authority may extend the time within which the use or development or any stage of it is to be started or the development or any stage of it is to be completed or within which a plan under the Sub-Division Act 1988 is to be certified.
(3) If the time is extended after the permit has lapsed the extension operates from the day the permit expired.
It will be observed that s 69(2) only provides for an extension of time to be granted in respect of the commencement of a use or development and in respect of the completion of a development. It does not provide for an extension of time for the completion of a use. In the circumstances of this case, therefore, Transpacific was required to rely on Condition 53 to seek an extension of time for its tipping operations at the landfill insofar as they constituted a use.[26]
[26]Ibid [15]; [16].
Section 69 is not alone in being silent on the legal effect of the non-completion of a use under a permit. Section 68 of the Planning Act makes provision for the expiry of a permit for use and development if there has been a failure to commence the use or development within a specified period or if there has been a failure to complete a development within the specified period. It makes no provision for the expiry of a permit for use and development if a use has not been completed within a specified period. In the absence of a fixed term, once the use has commenced, the permit will only expire on the grounds of use if the use is discontinued for a period of two years.[27]
[27]Section 68(3)(d) of the Planning Act.
It would seem, therefore, that the permit in this case would only have expired by reason of the operation of s 68(3) of the Planning Act if no extension of time was obtained to complete the development or if the use had been discontinued for a period of two years. The fact that the statute does not provide for a permit to expire by reason of non-completion of a use may explain why s 69 only provides for an extension of time within which the use or development is to be commenced or the development is to be completed. As the non-completion of a use does not result in the expiry of a permit by virtue of s 68 of the Planning Act, there is arguably no need for a statutory provision providing for the extension of the permit for this purpose.
Having regard to this statutory scheme, I have concluded that s 69 of the Planning Act is not the only source of power to extend time under the permit. It cannot have been the intention of the legislature to thwart the extension of a permit for use and development because, while there is a statutory provision for the extension of time for completion of the development, there is no statutory equivalent for the extension of time for completion of the use. The lack of a statutory provision to extend the time for completion of the use cannot mean that the permit for use is not able to be extended notwithstanding the extension of the permit to develop.
In these circumstances, it was appropriate for the period of time for the completion of the use of the land for tipping operations to be regulated via a permit condition providing for the extension of the permit. Section 62(2) of the Planning Act provides that when deciding to grant a permit, the responsible authority may include ‘any other condition it thinks fit’. The underlying test of validity of a permit condition by reference to purpose is whether the condition is reasonably capable of being related to the implementation of planning policy when the scope of such policy is ascertained from the relevant planning legislation and the relevant planning scheme.[28] In my view, Condition 53 is reasonably capable of being related to the implementation of planning policy. Because the permit contains a condition requiring the tipping operations to be completed within a defined period, the condition was also capable of providing for an extension of that period and is a valid condition.
[28]Roads Corporation v McCarthy (2004) 137 LGERA 433, 448.
Ground 2 is not made out.
Ground 3 – the 2008 letters
The 2008 letters contain representations by Transpacific to the EPA as to estimated available air space at the landfill as at 8 June 2008 (3,020,500 cubic metres) and the estimated volume of slimes dams present at the site (600,000 cubic metres). The Council contends that these representations were relevant to rebut a statement made from the bar table as to the total air space available for filling operations in the relevant part of the site, which in turn went to whether the 2003 letter limited the amount of available air space under the permit.
The Council sought to introduce the 2008 letters in its reply on the last day of a five day hearing, notwithstanding that it had been in possession of the letters since before the commencement of the hearing. The Tribunal ruled that it would not accept the 2008 letters in evidence. Referring to the evidence about the removal of slimes given by Transpacific’s expert, the Tribunal said:
We're not prepared to accept this additional material at this stage. We don't believe it's something new that has arisen in Mr Gobbo’s closing submissions. Mr Green gave evidence on 3 May about creating more space and that slimes had been excavated from the site to be used for cover and packing. …[29]
[29]Transcript of Proceedings, Transpacific Waste Management Pty Ltdv Kingston CC & Ors (Victorian Civil and Administrative Tribunal, P1884/2011 & P1889/2011, Gibson DP and Potts M, 16 May 2012) 227.
The Tribunal stated that the Council and that it had been given an opportunity to file supplementary material to support its case about the creation of additional voids and said:
.. now is not the time to be putting additional material in. We've closed the evidence off and you should have been putting material like this, if it was relevant to your case, to the witness as part of cross-examination. So that is my ruling and I'm handing that [the 2008 letters] back.[30]
[30]Ibid 228.
The Council submits that as the Tribunal did not determine that the 2008 letters were neither relevant nor probative, it made a vitiating error of law in refusing to allow them to be introduced in evidence. According to the Council, the Tribunal had an obligation to consider all material before it and to make its determination with a view to arriving at the ‘correct or preferable’ decision. That being so, when presented with relevant and probative evidence, the Tribunal ought not to have refused to receive it simply because of the lateness of its tender or because it would prejudice Transpacific’s case.
Contrary to the Council’s submission, it is not the case that the Tribunal is bound to accept any ‘relevant and probative’ evidence presented to it, regardless of the form of the evidence or the stage at which it is sought to be adduced. The Tribunal had already made an order for additional submissions to be filed by the Council in support of its case and had expressed an expectation that that would be the end of the Council’s belated pursuit of its ‘particular issue’. In my view, it was entitled to refuse the Council any further indulgence, particularly having regard to the merits of the argument sought to be put.
The 2008 letters were not, as the Council submitted before the Court, ‘relevant considerations which the tribunal was required to take into account’ in accordance with the principle laid down in Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[31] At best, the 2008 letters were evidence that might have been relevant to assessing the reliability of Transpacific’s evidence as to the air space remaining to be filled pursuant to the permit.
[31](1986) 162 CLR 24 (‘Peko-Wallsend’).
In Peko-Wallsend, Mason J stated that the factors that a decision-maker is bound to consider in making a decision is determined by the construction of the statute conferring the discretion. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the statute.[32] The Tribunal considered the ‘scope of the permit’ argument made by the Council. It did so, I assume, on the basis that whether the operators had impermissibly created additional voids contrary to (alleged) restrictions in the permit may have been a relevant consideration in deciding whether to extend time for the completion of the development and use of the land for tipping operations. However, the Tribunal was not bound to consider as a relevant consideration any particular document said to support that argument. Nor was this a case where the Tribunal could be said to have ignored a central issue in the case where no argument was put on the issue as was the case in TAC v Bausch.[33] The argument was put, it was considered and it was rejected.
[32]Ibid, 39-40.
[33]TAC v Bausch [1998] 4 VR 249.
The 2008 letters were said to be relevant to the matters before the Tribunal relating to the ‘scope of the permit’ and the alleged creation of additional unauthorised voids by the operators. The Council had had every opportunity to develop this part of its case. However, it was, as the Tribunal’s reasons make clear, an argument that found little favour with the Tribunal. The Tribunal found, as a matter of fact, that the 2003 letter did not have the effect contended for as it did not refer to the total air space available for filling at the site, and that the 2003 letter was not to be construed as placing any limit on the volume of air space available to be filled pursuant to the permit. The 2008 letters, while referring to the size of a then existing ‘slimes dam’ do not, on their face, shed light on whether there was an excavation of slimes as contemplated by the permit or the impermissible creation of additional voids not authorised by the permit. To the contrary, in the absence of further evidence elucidating their contents, the 2008 letters would muddy rather than clarify the situation.
In Australian Broadcasting Tribunal v Bond,[34] Mason CJ held that a decision does not ‘involve’ an error of law unless ‘the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different’.[35] Toohey and Gaudron JJ also held that the error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. According to their Honours, it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.[36]
[34](1990) 170 CLR 321.
[35]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353.
[36]Ibid 384.
I am not persuaded, on the basis of the Council’s explanation of the relevance of the 2008 letters, that their admission could have made a difference to the Tribunal’s decision. The Tribunal described this part of the Council’s case as ‘spurious’ and questioned the ‘veracity’ of the complaint. It did so having regard to the 2003 letter, the evidence before it about the operation of the landfill and the expert evidence as to available air space. The 2008 letters contain limited technical information which could not, without further significant elucidation, advance the Council’s case.
In my view, any error made by the Tribunal in respect to the non-admission of the 2008 letters was not a vitiating error.
Ground 3 is not made out.
Conclusion
The Council’s grounds are not made out. Although the Court ordered that the application for leave to appeal and the appeal itself be heard together, it is sufficient to refuse leave to appeal. Leave to appeal is refused as the Tribunal’s decision is not attended by sufficient doubt to warrant the grant of leave.
· Cell 5A-1: Construction commenced in late 2006 and filling completed in August 2007;
· Cell 5B-2: Construction commenced in September 2006 and filling completed in December 2007;
· Cell 5B-3: Constructed during 2007 and filled until June 2008;
· Cell 5B-4: Constructed during 2009 and filling completed in January 2011;
· Cell 5C-1: Construction approved in 2009 and filling commenced in January 2010 and continuing at the time of the hearing;
· Cell 5C-2: Construction completed in 2012 and filling had commenced at the time of the hearing and was continuing; and
· Cell 5C-3: Excavation had been completed but filling had not commenced at the time of the hearing.
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