Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd

[2020] VSCA 332

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0070

MOUNT ATKINSON HOLDINGS PTY LTD & ANOR	Applicants
v
LANDFILL OPERATIONS PTY LTD & ORS	Respondents

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JUDGES:	McLEISH, EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 November 2020
DATE OF JUDGMENT:	21 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 332
JUDGMENT APPEALED FROM:	[2020] VSC 345 (Garde J)

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PLANNING AND ENVIRONMENT – Waste management – Landfill – Works approval issued pursuant to Environment Protection Act 1970 to extend landfill – Proper construction of EPA policies relating to odour and landfill buffer issues –  Appeal from decision of trial judge on review from Victorian Civil Administrative Tribunal – Whether primary judge should have held Tribunal failed to properly decide issues about consistency with buffer requirement because it considered issues foreclosed by decisions made under the Planning and Environment Act 1987 and consequently misdirected itself and failed to perform its task on review – Proposed ground of appeal in substance a new ground not raised before the primary judge – No prospect of success in any event – Environment Protection Act 1970 ss 1B, 16, 16A, 20C, 33B, 37A, 50C – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Waste Management Policy (Siting, Design and Management of Landfills) – Best Practice Environmental Management (Siting, Design, Operations and Rehabilitation of Landfills) – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr E Nekvapil with Mr D Deller	Rigby Cooke Lawyers
For the First Respondent	Mr S R Morris QC with Ms E C V Porter	Norton Rose Fullbright
For the Second Respondent	Mr J D Pizer QC with Mr G Ayres	Legal Services Unit, Environment Protection Authority

McLEISH JA
EMERTON JA
OSBORN JA:

Introduction

1. In 2016, the first respondent, Landfill Operations Pty Ltd (‘Landfill Operations’), sought a works approval from the Environment Protection Authority (‘EPA’) to extend the Ravenhall Melbourne Regional Landfill (‘MRL’). 

1. The MRL occupies the now exhausted stages of the Deer Park Quarry void, an area of approximately 133 hectares.  The quarry sits within a total site of approximately 1,105 hectares.  The quarry has operated since 1964 and it is expected that quarrying will continue for at least another 60 years.

1. The MRL is the largest landfill in Victoria. It has operated since 1998 and is what is called a ‘Type 2’ landfill accepting waste from municipal councils and commercial operators. It is a ‘scheduled premises’ as defined in s 4(1) of the Environment Protection Act 1970 (‘EP Act’).

1. The MRL provides a waste disposal facility for 16 municipalities and has been identified as a hub of state importance in relevant policies formulated by Sustainability Victoria and the Metropolitan Waste and Resource Recovery Group pursuant to the EP Act.

1. The MRL currently receives an estimated 11 million tonnes of waste each year and this is expected to increase over time. 

1. Landfill Operations proposes to extend the MRL creating seven additional landfill cells utilising space created by the expansion of an existing quarry to its west.  The seven cells would extend the life of the landfill by approximately 13 years from the expected completion of the existing approved landfill cells in 2022/2023, to 2036 based on current projections of demand.  The seven cells would occupy approximately 96 hectares. 

1. On 24 March 2017, the EPA issued a works approval pursuant to the EP Act for the landfill extension subject to detailed conditions.

1. Applications to review the decision to grant a works approval were made by Melton City Council, Brimbank City Council, the applicants in this proceeding (Mount Atkinson Holdings Pty Ltd and Middle Hopkins Investments Pty Ltd, henceforth ‘the land developers’) and Stop The Tip Inc. 

1. In its subsequent reasons for decision, the Victorian Civil and Administrative Tribunal (‘the Tribunal’) summarised the land developers’ case as follows:

In their statements of grounds, the developers say their interests will be unreasonably and adversely affected by the granting of a works approval for the landfill without an ‘internalised’ buffer area because it will result in the discharge, emission or deposit of waste to the environment, and the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment, including:

·Odour emissions beyond the boundary of the landfill as odour management does not meet odour management best practice of SEPP (AQM).^[[1]]

[1]See [14] below for an explanation of relevant acronyms adopted by the Tribunal. 

·Landfill gas migration beyond the boundary of the landfill as landfill gas management does not comply with the BPEM and the WMP.

At the hearing, the developers raised a further issue they say arises from the proposed depth of the landfill and the local groundwater conditions. They claim that:

·The design of the landfill and EPA’s assessment have failed to account for perched groundwater occurring in the basalt formation.

·The design of the landfill and EPA’s assessment have failed to properly establish the long-term regional groundwater levels because of interference from groundwater extraction that supports the past, current and ongoing quarry operations.

The developers assert that these points demonstrate an inconsistency with relevant policies, namely the WMP and SEPP (W). The consequence of these inconsistencies is said to present a risk of failure to the landfill liner systems or, in the alternative, the groundwater drainage mitigation systems now proposed will generate legacy issues beyond the life and licensing of the landfill.[2] 

[2]Melton CC v Landfill Operations Pty Ltd [2019] VCAT 882, 27 [69]–[71] (‘Tribunal’s Reasons’).

1. A wide range of further points were agitated by the other applicants for review. 

1. After a 20 day hearing (held in, and between, July and September 2018) at which it heard both expert and other evidence and received detailed submissions on issues of both law and fact, the Tribunal reserved its decision. 

1. On 17 June 2019, it delivered a 180 page judgment and amended the works approval but otherwise dismissed the applications for review. 

1. The Tribunal’s decision addressed:

·the background to the proceeding;

·the statutory framework governing the works approval process;

·the planning framework governing the site context;

·the relevant strategic waste management framework;

·applicable policies made pursuant to the EP Act;

·odour issues;

·landfill gas management issues;

·the relative merits of mound or area landfills;

·groundwater issues;

·surface water and drainage issues;

·litter issues;

·alternative waste disposal options;

·landfill buffers;

·the nature and scope of the Tribunal’s jurisdiction;  and

·the conditions which should be imposed on the landfill at the works approval stage. 

1. In the course of its decision, the Tribunal considered a number of policies including the following policies, which adopted abbreviations which we shall also utilise:

·‘BPEM’ – Best Practice Environmental Management – Siting, Design, Operation and Rehabilitation of Landfills (Publication 788.3, August 2015);

·‘SEPP (AAQ)’ State Environment Protection Policy (Ambient Air Quality) 9 February 1999;

·‘SEPP (AQM)’ – State Environment Protection Policy (Air Quality Management) 21 December 2001;

·‘SEPP (W)’ – State Environment Protection Policy (Waters);  and

·‘WMP’ – Waste Management Policy (Siting, Design and Management of Landfills) (as amended on 28 June 2018).

1. The land developers then applied for leave to appeal the Tribunal’s decision on 11 questions of law relating to odour and landfill buffer issues and the proper construction of EPA policies relating to these issues. 

1. Ultimately 9 of these questions were pursued.  The primary judge summarised the main contentions advanced by the land developers as follows:

(a)air emissions modelling was obligatory, and must show that the design criterion 1 OU[3] for general odour was attained at the boundary of the landfill and beyond;

(b)because the proponent could not show compliance with the design criterion of 1 OU, the Tribunal was obliged to refuse the works approval application;

(c)the Tribunal did not give effect to the SEPP (AQM), the WMP … or the BPEM;

(d)a health risk assessment was the only ‘get out of gaol card’ if the 1 OU standard was not met, and was not appropriate;

(e)the Tribunal used the expression ‘risk assessment’ inaccurately in its reasons and should have referred to ‘health risk assessment’;

(f)the Tribunal applied the wrong test as to an adverse effect on amenity by requiring that the impact on residential amenity be so great that residents could not live in their own homes;

(g)the Tribunal denied the developers procedural fairness when it did not accept the evidence of the resident witnesses; and

(h)the Tribunal should have required the proponent to provide a 500m buffer.[4] 

[3]Odour Unit.

[4]Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd & Ors [2020] VSC 345, [103] (‘Reasons’).

1. The primary judge’s Reasons demonstrate that the proposed grounds of appeal were in large part directed to the Tribunal’s treatment of State Environment Protection Policies (‘SEPPs’) relating to air quality management (proposed grounds 1, 2, 3, 4, 6 and 7); but also compliance with the odour control objectives and outcomes of the BPEM (proposed grounds 4 and 5); alleged failure to accord natural justice to the land developers (proposed ground 8); and an alleged error in failing to give effect to the provisions of the WMP and BPEM relating to buffers (proposed ground 10). 

1. The primary judge granted leave to appeal on two of the proposed grounds of appeal (grounds 1 and 4) but dismissed the appeal. 

1. The land developers now seek leave to appeal against the primary judge’s decision to refuse leave to appeal with respect to question 10 and proposed ground 10 of the notice of appeal before him: 

Question 10: Did the Tribunal err in failing to give effect to cl 15 of the WMP … which requires that an applicant for a works approval must meet each required outcome of the BPEM, including providing buffers in accordance with Table 5.2 of the BPEM?

Ground 10: The Tribunal erred in law in concluding the proposal was consistent with the WMP … which requires that an applicant for a works approval must meet each required outcome of the BPEM, including providing buffers in accordance with Table 5.2 of the BPEM, when those buffers were not provided.[5] 

[5]Reasons [228].

1. The provision of the BPEM upon which the land developers relied provides that a landfill of the type proposed must provide buffers in accordance with a table requiring a buffer between buildings or structures and the landfill, or ‘where these are unavailable demonstrate that risks are mitigated to the same standard’. 

1. A 500 metre buffer from the proposed landfill would extend over an area currently containing structures including a gas pipeline, an optic fibre cable and a road, but no buildings.  It would also extend approximately 400 metres into the first applicant’s land to the west in an area earmarked for future industrial development and likely to accommodate buildings within the life of the landfill.[6] 

   [6]Quarry buffer controls independently prevented development within 200 metres of the pit within which it is proposed landfill cells will be constructed. 

1. Before the primary judge, the land developers contended that:

(a)a landfill buffer provides a protection zone for landfill gas migration, safety and amenity impacts;

(b)the relevant buffer set out in Tables 5.2 and 8.2 of the BPEM is 500m from building or structures;

(c)the landfill site is large enough to provide a 500m buffer;

(d)if the works approval is granted, a number of buildings and works will be within 500m of the landfill extension;

(e)the Tribunal was in error when it held that the 500m buffer was not mandatory, and that it could undertake its own assessment as to whether the buffer was adequate; and

(f)the Tribunal failed to ‘give effect’ to cl 15(3) of the WMP….[7] 

[7]Reasons [228].

1. Ultimately, his Honour held:

The reasons of the Tribunal do not show any error of law for these reasons:

(a)the Tribunal clearly considered that there was insufficient buffer available if the preferred layout of the landfill site was to proceed;

(b)there is no dispute that if the preferred layout of the landfill site was adopted a 500m buffer from buildings and structures could not be achieved;

(c)the word ‘unavailable’ is an ordinary English word, and its meaning and application are matters of fact. It should be read broadly and flexibly. There is no reason to read the word in a restricted way given the discretion conferred on the Tribunal if risks are mitigated to the same standard;

(d)the Tribunal had a discretion to determine whether risks had been mitigated to the same standard under section 5.1.10 of the BPEM;

(e)the Tribunal was empowered to apply a lesser buffer distance subject to a risk assessment that considered design and operational measures;

(f)the Tribunal considered that the planning scheme controls which regulated and restricted land use in the area surrounding the landfill site provided an adequate buffer to protect sensitive land uses from adverse odour impacts;  and

(g)the Tribunal concluded that the proposal as amended was consistent with the BPEM.[8] 

[8]Reasons [238].

1. Both the terms of question 10 and proposed ground 10 raise the proposition that buffers were required in accordance with Table 5.2 in the BPEM.  It was self-evident that the proposed works did not provide a 500 metre buffer between existing structures and the perimeter of the landfill cells within the MRL.  The critical conclusions of his Honour were that the Tribunal possessed a discretion with respect to the requirements for such buffers and was entitled to make its own assessment with respect to this issue. 

1. As we shall explain below, the BPEM does provide a discretion with respect to the provision of buffers if an equivalent environmental outcome is achieved. 

1. Not surprisingly perhaps, the land developers now seek to agitate a different point from those raised before the primary judge. It is now contended that the Tribunal held that it was foreclosed by decisions made under pt 3 of the Planning and Environment Act 1987 (‘P&E Act’) from making its own decision with respect to the buffer issue. Such decisions related to the implementation of the planning scheme controls in force at the time of the Tribunal’s decision. More particularly, the land developers now put forward the following proposed ground of appeal:

The primary judge should have held that:

2.1the Tribunal:

(a)failed to properly decide issues about consistency with the buffer requirement, or the Applicants’ contentions about them, because it considered those issues were foreclosed by the Pt 3 decisions; and

(b)consequently misdirected itself about, and failed to perform, its task on review;

2.2accordingly, the answer to question 10 in the Amended Notice of Appeal was ’yes’: the Tribunal did ’err in failing to give effect to clause 15 of the WMP which requires that an applicant for a works approval must meet each required outcome of the BPEM, including providing buffers in accordance with Table 5.2 of the BPEM’;  and

2.3 that error was a vitiating error. 

1. For the reasons that follow, leave to appeal should be refused: 

(a)       the proposed ground of appeal is in substance a new ground which should not be entertained;  and

(b)      the proposed ground of appeal, as now articulated, has no prospect of success in any event. 

The Environment Protection Act 1970

1. The works approval regime with which this proceeding is concerned sits within what the Tribunal called:

an extensive and complex regulatory framework for waste management that is embodied in the Environment Protection Act 1970, policies under the Act, best practice and other guidelines, and waste and resource recovery implementation plans.[9]

[9]Tribunal’s Reasons [3].

1. As an analysis of elements of this regulatory framework demonstrates, it is multi-layered and to some extent repetitive and reiterative, with cascading levels of regulation dealing with the same or substantially similar concepts. 

1. Before turning to the relevant aspects of the works approval provisions, it is necessary to address contextual aspects of the EP Act and in particular:

·the purpose and principles to which the EP Act seeks to give effect; and

·other provisions addressing the control of the impact of waste upon the environment. 

1. The EP Act commences by stating its purpose as being to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.[10] The principles of environment protection are set out in ss 1B to 1L and s 1A(3) further states:

It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection. 

[10]Section 1A. 

1. Section 1B sets out principles bearing on integrated decision-making.

(1)Sound environmental practices and procedures should be adopted as a basis for ecologically sustainable development for the benefit of all human beings and the environment.

(2)This requires the effective integration of economic, social and environmental considerations in decision making processes with the need to improve community well-being and the benefit of future generations.

(3)The measures adopted should be cost-effective and in proportion to the significance of the environmental problems being addressed.

1. We shall refer to these principles compendiously as ‘the principles of integrated decision-making’.  More specifically, we shall refer to the first principle as ‘the principle of sustainable development’, the second principle as ‘the principle of integration of considerations’, and the third principle as ‘the principle of reasonable proportionality’. 

1. Section 1C states the precautionary principle and the manner in which decision-making under the Act should be guided.

(1)If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(2)Decision making should be guided by—

(a)a careful evaluation to avoid serious or irreversible damage to the environment wherever practicable; and

(b)an assessment of the risk-weighted consequences of various options.

1. The precautionary principle is amplified by the principle of intergenerational equity and the principle of conservation of biological diversity and ecological integrity stated in ss 1D and 1E. 

1. In turn, the EP Act states further principles of environmental protection relating to:

·improved valuation, pricing and incentive mechanisms;[11]

·shared responsibility;[12]

·product stewardship;[13]

·wastes hierarchy;[14]

·integrated environmental management;[15]

·enforcement;[16]  and

·accountability.[17] 

[11]Section 1F. 

[12]Section 1G. 

[13]Section 1H. 

[14]Section 1I.

[15]Section 1J. 

[16]Section 1K.

[17]Section 1L. 

1. The principle of integrated environmental management is then stated as follows:

If approaches to managing environmental impacts on one segment of the environment have potential impacts on another segment, the best practicable environmental outcome should be sought.

1. In this application, the land developers contend that the Tribunal misapplied the principles of integrated decision-making and, in particular, the principle of integration of considerations. 

1. Before turning to the relevant statutory provisions governing works approvals, it is also necessary to say something about the structure of the EP Act.

1. Section 4 of the EP Act contains the following relevant definitions:

‘beneficial use’ means a use of the environment or any element or segment of the environment which—

(a)is conducive to public benefit, welfare, safety, health or aesthetic enjoyment and which requires protection from the effects of waste discharges, emissions or deposits or of the emission of noise;  or

(b)is declared in State environment protection policy to be a beneficial use;

‘environment’ means the physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odour, tastes, the biological factors of animals and plants and the social factor of aesthetics;

‘industrial waste’ means—

(a)any waste arising from commercial, industrial or trade activities or from laboratories; or

(b)any waste containing substances or materials which are potentially harmful to human beings or equipment;

‘policy’ means a State environment protection policy or a waste management policy;

‘waste’ includes—

(a)any matter whether solid, liquid, gaseous, or radio-active which is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment;

…

(b)       any discarded, rejected, unwanted, surplus or abandoned matter;

…

1. The powers, duties and functions of the EPA are stated in s 13(1) of the EP Act and include:

(a)to administer this Act and any regulations and Orders made thereunder;

(b)to be responsible for and to co-ordinate all activities relating to the discharge of wastes into the environment and the generation, storage, treatment, transport and disposal of industrial waste and the emission of noise and for preventing or controlling pollution and noise and protecting and improving the quality of the environment;

(c)to recommend to the Governor in Council State environment protection policy for the protection of any portion or portions of the environment or any segment or segments of the environment with respect to the uses and values, whether tangible or intangible, to be protected, the quality to be maintained, the extent to which the discharge of wastes may be permitted without detriment to the quality of the environment, long range development uses and planning and any other factors relating to the protection of the environment;

(ca)     to recommend to the Governor in Council waste management policy;

…

(d)by the issue of works approvals, licences, permits, pollution abatement notices, minor works pollution abatement notices, research, development and demonstration approvals and notices under section 28B, to control the environmental impacts of activities which create a state of potential danger to the environment and to control the volume, types, constituents and effects of waste discharges, emissions, deposits, or other sources of pollutants and of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment and the generation, storage, reprocessing, treatment, transport, containment and disposal of waste and to control the volume intensity and quality of noise;

…

(g)to specify standards and criteria for the protection of beneficial uses and the maintenance of the quality of the environment having regard to the ability of the environment to absorb waste without detriment to its quality and other characteristics and having regard to the social and economic development of Victoria;

…

(nc)to evaluate and comment on Regional Waste and Resource Recovery Implementation Plans;

…

(p)to promote, encourage, co-ordinate, and carry out long-range planning in environment management, waste management and pollution control; …

1. It can be seen that these functions relate in part to SEPPs and waste management policy, in part to the issue of works approvals, and in part to regional waste management planning. 

1. As the primary judge recognised, SEPPs have a pivotal role in environmental decision-making.[18] Section 16(1) of the EP Act provides for the declaration of SEPPs ‘to be observed with respect to the environment generally or in any portion or portions of Victoria or with respect to any element or elements or segment or segments of the environment.’

   [18]Reasons [35].

1. Section 16A further provides specifically for the declaration of waste management policies.

1. Section 17(1) and (2) provides for the specification of requirements in a SEPP or waste management policy for carrying into effect the policy. 

1. Division 2 of pt III of the EP Act covers works approvals. Section 19A relevantly prohibits the occupier of scheduled premises from carrying out works which are inter alia likely to cause an increase or alteration in the waste discharged or emitted from, deposited to, or produced at, the premises ‘except in accordance with a works approval or a licence or a requirement specified in a notice given by the Authority as the case may be unless the act or thing is only in the course of and for the purpose of general maintenance.’[19] 

   [19]Section 19A(1). 

1. Division 3 of pt III of the EP Act provides for the further control of wastes and noise by the licensing of certain premises.

1. Section 20C(2) provides that in considering applications for an authorisation (including a works approval) the EPA must have regard to policy so that the authorisation and any condition in, or relating to, the authorisation is consistent with all applicable policies.

1. Section 20C(3) relevantly provides that the EPA may refuse to issue an authorisation if, in its opinion, the issue would:

(i)       be contrary to, or inconsistent with, any applicable policy;  or

(ii)      be likely to cause, or contribute to, pollution;  or

(iii)     be likely to cause an environmental hazard. 

1. Part IV of the EP Act provides for review by the Tribunal of decisions made by the EPA, including decisions with respect to works approvals.

1. Section 33B(1) enables persons who are affected by the decision to apply for review of the decision. Section 33B(2) provides:

An application for review under subsection (1)(a) is to be based on either or both of the following grounds—

(a)that if the works are completed in accordance with the works approval, the use of the works will result in—

(i)a discharge, emission or deposit of waste to the environment; or

(ii)the reprocessing, treatment, storage, containment, disposal or handling of waste; or

(iii)the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment—

which will unreasonably and adversely affect the interests, whether wholly or partly of that person;

(b)that if the works are completed in accordance with the works approval, the use of the works will result in—

(i)a discharge, emission or deposit of waste to the environment; or

(ii)the reprocessing, treatment, storage, containment, disposal or handling of waste; or

(iii)the reprocessing, treatment, storage, containment, disposal or handling of substances which are a danger or a potential danger to the quality of the environment or any segment of the environment—

in the area which will be inconsistent with any relevant Order declared under section 16, 16A or 17A for the area, or if no relevant Orders have been declared under any of those sections for that area, would cause pollution or an environmental hazard.

1. In the present case, the land developers sought to review the decision to grant a works approval both pursuant to s 33B(2)(a) and (b).

1. Upon review, the Tribunal accepted that it must consider the way in which the proposed works will be used in order to assess the application for review. This follows from the reference to the use of the works in both s 33B(2)(a) and (b).

1. Section 37A further relevantly provides that, in deciding any application for review, the Tribunal must:

(a)take into account any relevant planning scheme; and

…

(c)take account of, and give effect to, any relevant State environment protection policy or waste management policy; …

1. In the present case, the Tribunal was thus required to assess the impact of the proposed works in part by reference to the context of land use controls imposed by the relevant planning scheme.  It was also required to take into account and give effect to a series of policies relating to air quality, waste management and best practice management of landfills. 

1. Two other aspects of the EP Act should be noted. First, the EP Act makes provision for the control of waste independently of the works approval and licence processes. The principal provisions were summarised by the primary judge.[20] 

   [20]Reasons [11]–[13].

1. Next, the EP Act makes detailed provision for the strategic planning of waste disposal by way of State-Wide Waste and Resource Recovery Infrastructure Plans (SWRRIPs) and Regional Waste and Resource Recovery Implementation Plans (RWRRIPs).[21] 

   [21]Divisions 2AC and 2AD of pt IX of the EP Act.

1. The Tribunal addressed the strategic waste management framework provided under the EP Act at [104] and following of its Reasons. It was necessary to do so in order to resolve submissions made to it by two municipal applicants for review (Melton City Council and Brimbank City Council) that the approval of an additional seven landfill cells would be contrary to the wastes hierarchy provided for by s 1I of the EP Act and the consequent policy provision found in cl 9 of the WMP and policy directions in the SWRRIP and relevant RWRRIP. By reason of s 50C of the EP Act, any works approvals or licence must be consistent with both the SWRRIP and relevant RWRRIP.

1. In this regard, VCAT observed:

There is a cascading sequence of relevance to the policies relevant in this proceeding. In our view, at the upper level is the SWRRIP and the MWRRIP^[[22]]. They set the scene and provide the necessary high-level policy endorsement to the expansion of the landfill at Ravenhall by way of its scheduling in the MWRRIP.

Once it is established that the works are consistent with the SWRRIP and the MWRRIP, it is necessary to consider the physical impacts of the works on the environment. In this context other policies become relevant, such as the WMP and the BPEM.[23] 

[22]The MWRRIP is the relevant RWRRIP relating to the metropolitan area. 

[23]Tribunal’s Reasons [132]–[133].

1. The land developers do not contend that the Tribunal made any error in its consideration of the SWRRIP and MWRRIP.  Their focus is upon the WMP and BPEM. 

The Waste Management Policy

1. The WMP is an order made under s 16(1) of the EP Act. The Tribunal was bound by s 37A to take account of, and give effect to, it.

1. The WMP is a generic policy which applies to landfill sites that accept a wide range of wastes.[24]  Clause 7 of the WMP states:

The objectives of this policy are to:

(a)protect the environment, including human health and amenity, from risks that may be posed by the disposal of waste to landfill;

(b)encourage innovation, cleaner production, resource efficiency and waste reduction, including promoting and facilitating the diversion of waste from landfill, in accordance with the wastes hierarchy; and

(c)minimise the development and use of landfills, consistent with the policy principles.

[24]WMP cl 4. 

1. Clause 8 then reiterates the policy principles derived from the EP Act including the principles of integrated decision-making and the precautionary principle.

1. Clause 9 of the WMP contains a statement of policy intent:

The intent of the policy is that:

(1)the siting, design and management standards established for landfills in Victoria provide the highest practicable level of protection for the community and environment, including local amenity and aesthetic enjoyment.

(2)management standards for landfills apply to all phases of a landfill’s operation including construction, operation, rehabilitation and aftercare.

(3)the development and use of landfills for the management of waste in Victoria be minimised, consistent with the policy principles.

(4)wastes shall only be deposited to landfill if there is no other practicable waste management option higher up the wastes hierarchy that does not lead to inferior outcomes in terms of the protection of people and the environment.

(5)the number of landfill sites exempt from licensing be progressively reduced and replaced with a system of resource recovery and waste transfer facilities to service local communities.

(6)while certain parts of the environment will continue to be used for landfilling purposes in the foreseeable future, with consequent limitations on future beneficial uses, the development and use of landfills be cooperatively and strategically planned to minimise the adverse impacts of landfilling wastes.

(7)solid industrial waste management plans, regional waste management plans and municipal strategic statements be consistent with each other particularly with regard to the planning for and siting of landfills.

(8)scientific information, models, research and other knowledge will inform decisions that affect landfill operations made by people, governments and organisations and will be communicated in a manner that meets the needs of stakeholders. 

1. Clause 9(7) specifically envisages that strategic planning pursuant to the EP Act and the P&E Act should be consistent.

1. In turn, cl 10 of the WMP requires that both environmental and planning authorities implement the WMP.  Clause 10(1) provides:

When making decisions and formulating strategies, plans and programs that may affect existing or proposed landfill sites in Victoria, the Authority, EcoRecycle Victoria, regional waste management groups, municipal councils, planning authorities, responsible authorities and other protection agencies will pursue the objectives and apply the principles and intent of the policy. 

1. Clause 11 provides for strategic land use planning. 

1. Clause 12 provides for waste management planning. 

1. Clause 13 provides for landfill site selection having regard amongst other things to buffer distances. 

1. Clause 14 then specifically addresses works approvals:

(1)Applications for works approvals and licences must comply with the provisions of the policy. 

1. Under the heading ‘Landfill Siting, Design and Management’, cl 15 then states a series of ‘general requirements’:  

(1)Where any provision of the BPEM is inconsistent with the policy, the policy shall prevail.

(2)This clause applies to an applicant for or holder of a works approval or licence for a landfill site, unless provided for in Clause 17.

(3)An applicant for or holder of a works approval or licence for a landfill site must:

(a)comply with the policy as well as all other relevant State environment protection policies and waste management policies;

(b)meet the objectives of the BPEM; and

(c)meet each required outcome of the BPEM.

(4)An applicant for or holder of a works approval or licence for a landfill site should use the suggested measures in the BPEM to demonstrate that subclause (3) will be met.

(5)If an applicant for a works approval, licence or licence amendment proposes measures alternative to the suggested measures of the BPEM, the Authority shall not issue the works approval, licence or licence amendment unless the applicant satisfies the Authority that the alternative measures:

(a)meet the requirements of subclause (3); and

(b)provide at least an equivalent environmental outcome to that provided by the suggested measure.

1. The underlying dispute in this application is whether the Tribunal gave effect to cl 15 and, in particular, whether it misdirected itself in considering whether the proposed landfill provided at least an equivalent environmental outcome to that provided for by way of a buffer distance measure contained in the BPEM, having regard to the way in which the required outcome of the BPEM is formulated. 

1. More particularly, the land developers contend that the Tribunal treated the planning scheme controls governing their land as determining whether an adequate buffer had been provided between the proposed landfill and the first applicant’s land.  In so doing, it is said, the Tribunal deferred to the opinion of an independent panel which considered and recommended the planning scheme controls in their current form. 

1. As a result, it is submitted there was a constructive failure to properly and independently resolve the adequacy of the environmental outcome. 

1. In answer, the respondents submit that:

(a)       the ground of attack now advanced is a new one which should not be entertained on appeal;  and

(b)      it is in any event misconceived. 

The Best Practice Environmental Management – Siting, Design and Rehabilitation of Landfills (BPEM)

1. In order to further understand the parties’ contentions, it is necessary to consider the terms of the BPEM which relate to the siting and design of landfills.

1. As we have noted, the objectives and required outcomes of the BPEM are adopted by cl 15 of the WMP.

1. The introduction to the BPEM states that waste management policies in conjunction with SEPPs establish a framework to ensure that landfills are designed to minimise risks to the environment.  It goes on to say:

A critical element of this policy framework is the implementation of best practice. EPA Victoria’s Best Practice Environmental Management publication Siting, design, operation and rehabilitation of landfills (Landfill BPEM) is the source document for best-practice environmental management measures for landfills. It gives direction on the best-practice siting, design, operation, performance and rehabilitation standards for landfills in Victoria, taking into account the risk they pose to the environment, and it provides a guide for the measures required to meet legislative objectives.

1. Part 1.1 of the BPEM then goes on to articulate the concepts of objectives, suggested measures and required outcomes. 

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.

Where a landfill operator believes that, for a particular section of the guidelines, alternative means can achieve the objectives and required outcomes, a risk-based assessment will be required to support the proposed alternative measure. Alternatively, if EPA believes that additional requirements are needed to protect the environment, then this will also be supported by a risk-based assessment.

1. It can be seen that like the WMP, the BPEM contemplates that alternative means may be adopted to achieve required outcomes provided that they are adequately justified. 

1. The BPEM then deals with:

·a waste management framework (pt 2);

·community engagement (pt 3);

·classification of landfills (pt 4);

·best-practice siting considerations (pt 5);

·best-practice design (pt 6);

·best-practice operation (pt 7);  and

·best-practice rehabilitation and aftercare (pt 8). 

1. As the heading of pt 5 of the BPEM indicates, it is concerned in the first instance with the identification and ranking of potential landfill sites for the purpose of regional waste management plans. 

1. For this purpose it postulates a hierarchy of aspects to be considered when screening for potential landfill sites.[25] 

   [25]BPEM cl 5.1. 

1. The concept of buffer distances is introduced at cl 5.1.5:

Appropriate buffer distance must be maintained between the landfill and sensitive land uses (receptors) to protect those receptors from any impacts resulting from a failure of landfill design or management or abnormal weather conditions. These failures might constitute discharge from the site of potentially explosive landfill gas, offensive odours, noise, litter and dust. Features that could be adversely affected by landfilling operations include surface waters, buildings and structures and airports.

Buffer areas are not an alternative to providing appropriate management practices, but provide for contingencies that may arise with typical management practices. 

1. Table 5.2 then summarises ‘Siting buffer distances required for landfill gas mitigation, safety and amenity impacts.’  For a Type 2 landfill, such as the MRL, the buffer distances listed under the heading ‘Part of site selection and during operation’ are as follows:

·     100 metres from surface waters.

·     500 metres from building or structures.

·     1500 metres from an aerodrome for piston-engine propeller-driven aircraft.

·     3000 metres from an aerodrome for jet aircraft. 

1. The critical required buffer in the present case is that of 500 metres from building or structures.  As we have said, in the present case there were existing structures comprising a gas pipeline, a fibre optic cable and a road with services within 500 metres of the proposed landfill cells. 

1. Consistently with the introduction to the BPEM (and the terms of the WMP), cl 5.1.5 goes on to state immediately after the Table:

Subject to an evaluation demonstrating that the environment will be protected and the amenity of the sensitive areas will not be adversely affected, lesser buffer distances may be applied subject to a risk assessment that considers design and operational measures. As part of a risk management approach, additional design or operational measures will be required to ameliorate the risks associated with a reduction of the buffer distances identified in Table 5.2. 

1. It can be seen that the key criteria governing the acceptability of lesser buffer distances than those stated in the Table are protection of the environment and the avoidance of adverse effects upon the ‘amenity of the sensitive areas’. 

1. The concept of buffers to sensitive land uses is then further explained:

Buffer distances are set to reflect the potential impacts from landfilling activities. Generally, the buffers are set to manage:

·     odour, which is of most concern during landfill operation

·     landfill gas impacts, including the risk of explosion and/or asphyxiation. Landfill gas potential risk remain post closure and for at least 30 years post-closure.

While other potential impacts such as fire, litter, noise and safety risks exist, the buffers required for protection from these impacts fall within the buffer required for odour and landfill gas.

Buffers are measured from the sensitive land use to the edge of the closest cell. All cells, including closed cells, need to be considered in calculating buffers. For sites where there is uncertainty in the location of landfill cells, the boundary of the landfill premises is the point of measurement.

Buffer measurement also needs to consider other activities capable of causing a nuisance, such as the leachate ponds, to the nearest sensitive land use. 

1. The rationale for the buffer distance to buildings and structures is also explained:

The buildings and structures buffer distance applies to any building or structure (including subsurface structures such as stormwater drains or service trenches) located near a landfill and is there to provide a protection zone around a landfill for subsurface landfill gas migration.

In the event that a building or structure is located within the recommended buffer, monitoring will be required in accordance with EPA landfill gas risk assessment requirements. An environmental audit is recommended where buildings with enclosed spaces that people will enter are proposed to be constructed within the buffer. 

1. The need for planning authorities to manage the encroachment of development into buffers is also elaborated. 

1. The use of land within buffers for non-sensitive uses is contemplated:

Land within buffer areas may be used for non-sensitive uses provided that the use is not adversely affected by landfilling. Therefore, it is better that this land is owned or at least under the control of the landfill operator, maximising control over the maintenance of an appropriate buffer. Landfill operators should develop contingency plans to show how the landfill could be developed and operated to ensure that the safety and amenity of the affected land would still be preserved, should the buffer be encroached. Encroachment may affect the future development of the landfill. 

1. At the end of pt 5 of the BPEM, a summary appears within a box:

Landfill BPEM requirements to comply with clause 15 (3) and (4) of the Landfill WMP.

SCREENING FOR POTENTIAL LANDFILL SITES

Relevant BPEM objective

To identify and rank those sites that require the fewest engineering and management controls to meet the objectives of all State environment protection policies.

Required outcomes of the BPEM

·     Future landfilling sites must be listed in the landfill schedule in the regional waste management plan.

·     Develop landfill sites in the sequence specified in the relevant regional waste management plan.

·     Ensure that the landfill is sited to protect groundwater, surface waters, and flora and fauna.

·     Ensure that sufficient buffer is available for the life of the landfill and for a minimum of 30 years following closure of the site.

·     Provide buffers in accordance with Table 5.2 and Table 8.2; where these are unavailable, demonstrate that risks are mitigated to the same standard.

·     Consider the most appropriate landfilling type to meet the requirements imposed by local conditions.

·     All new landfills must deposit waste at least two metres above the long-term undisturbed depth to groundwater, unless the operator satisfies EPA Victoria that sufficient additional design and management practices will be implemented and EPA determines that regional circumstances exist that warrant the new landfill.

Suggested measures of the BPEM

·     Consider natural features that will reduce the visual impact of the landfill.

·     Commence the community consultation process early.

·     Avoid valley fill landfills.

·     Provide an unsaturated attenuation layer under the landfill liner. 

1. The summary of the relevant BPEM objectives and the required outcomes is repeated in Appendix C to the BPEM. 

1. The summary at the end of pt 5 of the BPEM specifically refers back to cl 15(3) and (4) of the WMP.  It will be recalled that these provisions are in part expressly directed to ‘an applicant for or holder of a works approval.’  Further, they are subject to the discretionary proviso stated in cl 15(5) which is expressed by reference to ‘alternative measures to  the suggested measures’. 

1. As such, this part of the BPEM is to be read as governing not only siting considerations for the purpose of strategic planning but also best practice for the purpose of works approvals. 

1. Thus, while the objective of the requirements is stated in strategic planning terms, the required outcome relating to buffers is applicable as a best practice requirement at the works approval (and licence) stages of regulation. 

1. In the absence of the relevant buffer of 500 metres, it was incumbent on the applicant for works approval to ‘demonstrate that risks are mitigated to the same standard.’[26] 

   [26]This concept fell to be applied in circumstances where the EPA contended and the Tribunal accepted that the risk of fugitive odour omissions in fact extended more than 500 metres to approximately 1 kilometre west of the site. 

1. This outcome gives effect to the aim of the BPEM to provide for the possibility of alternative means to achieve required outcomes when they can be supported by risk-based assessment.  This in turn reflects the same rationale as the provision for alternative measures to the suggested measures of the BPEM provided for in cl 15(5) of the WMP. 

1. The notion of ‘mitigation to the same standard’ contained in the BPEM should be understood as reflecting the same concept as ‘an equivalent environmental outcome’ in terms of cl 15(5) of the WMP.  Both the discretion provided for in cl 15(5) of the WMP and the discretion provided for in pt 5 of the BPEM with respect to buffer outcomes adopt the same underlying concept in substance. 

1. For completeness, we note that the description of ‘suggested measures’ within the box at the end of pt 5 of the BPEM is not necessarily conclusive of the exclusive meaning of suggested measures within the WMP (which is expressed to prevail over the BPEM).  It is strongly arguable that the buffer distance is also itself a suggested measure for the purposes of the WMP, but it is unnecessary to resolve this issue (which was not addressed by the parties) because the BPEM specifically provides for the approval of alternative outcomes in which risks are mitigated ‘to the same standard’. 

1. The requirement to demonstrate that risks are mitigated to the same standard must be read in context and in a way which does not render otiose the passage set out immediately following Table 5.2. 

1. The ‘same standard’ and an ‘equivalent environmental outcome’ will not be achieved unless the requirements elaborated in greater detail immediately below Table 5.2 are satisfied.  These require demonstration that the environment will be protected and the amenity of sensitive areas will not be adversely affected.  This is to be achieved by an assessment of risks but no quantitative criteria are stated. 

1. The concepts of sensitive areas or sensitive land uses adopted in pt 5.1 of the BPEM are not defined.  Some guidance as to their meaning in respect of odour impacts (which is consistent with their ordinary meaning) is found in pt 6.7 of the BPEM relating to air quality.  This states with respect to odour at pt 6.7.3:

Landfill odour is a key consideration in landfill siting. Landfill odours have two main sources; odour from the aerobic decomposition of freshly deposited wastes and odour from landfill gas generated by the anaerobic decomposition of wastes. Leachate ponds can also be a source of offensive odours. Good operation and adequate buffers are essential in odour management. These buffers are set to account for upset conditions and are not a substitute for best-practice management at the landfill or for normal operating conditions.

At all times, a landfill must be managed to prevent offensive odours beyond the boundary of the premises. For existing landfills this will be assessed by community complaints that are verified by EPA officers. In particular, where surrounding land uses include residential, educational, health care or other sensitive uses, the highest degree of care must be taken to protect these areas from landfill odours.

The provision of buffers in accordance with requirements outlined in section 5.1.5 will minimise impacts of odour on surrounding areas.

While the major constituents of landfill gas, methane and carbon dioxide, are odourless, other minor constituents of landfill gases including organosulfur compounds can be very odorous. The key means of managing landfill gas odour is to manage the landfill gas in general by oxidising it through some of the measures discussed in section 6.7.1. Odour from aerobic waste deposition is managed by minimising the exposure of these wastes to the atmosphere.[27] 

[27]Emphasis added. 

1. At one point the land developers submitted to this Court that the specification of buildings and structures as the trigger for the relevant buffer implies that any land use accommodated within buildings is to be regarded as odour ‘sensitive’.  We reject this submission.  As the BPEM itself makes clear, the specification of buildings and structures as a trigger is in the first instance directed by sub-surface landfill gas migration considerations.  Insofar as sensitivity to odour is concerned, a building may accommodate a sensitive land use such as those identified in pt 6.7.3 of the BPEM or it may accommodate a use which is not odour sensitive such as a meat rendering plant or paper mill.  A structure may accommodate sensitive recreational use such as an adventure playground or it may be inert like a high voltage power line, or accommodate uses which are not sensitive such as sewage treatment. 

1. In the present case, it was a question of fact for the Tribunal to determine whether, despite the provision of a lesser buffer than 500 metres, the amenity of sensitive areas would not be adversely affected during the life of the landfill and thereafter. 

1. The provisions of the planning scheme were potentially relevant to this question because they control future land use within the areas in issue.  As such, they seek to give effect to the objectives of planning in Victoria which include:

to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;[28]

[28]P&E Act s 4(1)(c).

1. In turn, as we have said, the Tribunal was specifically required to take the planning scheme into account. 

1. The application of the concept of the amenity of sensitive uses is also informed by the principle of reasonable proportionality which required the EPA and the Tribunal on review to adopt means which are cost-effective and in proportion to the significance of the environmental problems to be addressed. 

1. In the course of argument it was conceded by the land developers at various points that the planning scheme provisions went to the ‘reasonableness’ of a reduced buffer.  In our view, this concession was correctly made, because the planning scheme necessarily informed the assessment of the ongoing amenity of the affected land and the potential sensitivity of the uses which might occur on it. 

1. It follows that the Tribunal did not have regard to an irrelevant consideration by considering the planning scheme.  The central proposition now advanced on behalf of the land developers is that the Tribunal failed to independently assess the amenity issue on which the planning scheme bore. 

1. Again for completeness, before turning to the Tribunal’s Reasons we note that both before the Tribunal and the primary judge it was specifically submitted on behalf of the applicants that a 500 metre buffer to the proposed landfill was ‘available’ in terms of the requirements of the BPEM because a 500 metre buffer could be provided internally to the site if the proposed landfill was drastically reduced in scale and application for a proposal for different works was sought. 

1. The primary judge rejected this submission and held that a 500 metre buffer was not available to the proposed landfill as a matter of fact. 

1. No ground of appeal before us is directed to this conclusion.  Moreover, in our view it was open to the judge to so conclude.  His application of the ordinary meaning of the words of the BPEM to the facts of the case was also supported by the accepted principles of construction with respect to subordinate instruments like the BPEM.  In this regard, the primary judge drew attention to the observations of Lord Reid in Gill v Donald Humberstone & Company Ltd:[29]

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence…. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament… Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.[30]  

[29]Reasons [33] (citations in original).

[30][1963] 1 WLR 929, 933–4 (emphasis added). See also Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528, 531 (Murphy J); Meade v Nillumbik Australia Pty Ltd & Anor (Ruling) [2019] VSC 786, [43] (Cavanough J).

The Tribunal’s Reasons

1. In summarising the Tribunal’s Reasons we shall focus upon those aspects which bear upon its decision with respect to buffer distances.  It is however necessary to say something about the context in which that issue was resolved. 

1. The Tribunal first described the site and the proposed works.  The works included:

·Composite, low permeability cell floor and wall linings.

·A leachate collection system that will direct leachate to a central leachate storage/evaporation pond.

·A landfill gas collection system, including intermediate, horizontal trenches and pipes that will direct landfill gas to a central gas-to-energy plant that currently operates on the site.

·A capacity for up to two years of waste disposal in each cell; and

·A composite clay and soil cap with final (pre-settlement) heights not exceeding 40m above the surrounding natural surface level.[31]

[31]Tribunal’s Reasons [13] (citation omitted). 

1. The Tribunal summarised the proposed operation of the works as follows:

Prior to construction of each cell the detailed design is reviewed and approved by an independent Auditor and submitted to EPA for approval to construct. A quality assurance and quality control program are also developed and approved by an independent Auditor; the purpose of which is to ensure the integrity of the liner systems.

The Auditor subsequently monitors and approves the construction of the cell and its readiness to receive waste. Following approval and the issue of a licence by EPA, the cell can be used for the deposition of waste.

Waste is received at the MRL on a 24-hour basis with a reduced throughput during the night.

All wastes arriving at the site pass over a weighbridge and inspection station located near the existing entrance. Vehicles are directed to the tipping face and the waste is tipped at both the top and bottom of the tipping face. A combination of bulldozers and compactors spread the waste over the inclined tipping face and compact the waste into a stable form. As additional wastes are tipped, the tipping face progresses across the cell and the compacted waste is progressively covered with a clay-rich soil cover. As each lift is completed, the tipping face is established on top of the previous lift and waste deposition continues until the approved pre-consolidation waste level for the cell is reached.

As the landfill rises, a series of near horizontal gas collection pipes are progressively installed to allow for the progressive collection of landfill gas generated as the cell is being filled. The landfill gas is directed to an onsite landfill gas burning power generation facility.

Any leachate generated during and post filling of the cell is collected by a series of collection pipes situated above the lined base of the cell and pumped to an onsite leachate treatment facility.

Once filled, the cell is capped in accordance with the EPA approved capping design. The construction of the cap is monitored and subject to the approval of the independent Auditor.[32]

[32]Tribunal’s Reasons [39]–[45]. 

1. The Tribunal summarised the procedural background to the applications before it. 

1. It then turned to the statutory framework within which it was required to make a decision and in so doing stated as follows:

In addition to the regulatory regime under the Environment Protection Act 1970, regard must be had to the planning context of the site. Previous decisions of the Tribunal have highlighted how decision making under the Planning and Environment Act 1987 and the Environment Protection Act 1970 must work in an integrated way.[33] Planning decisions under the Planning and Environment Act 1987 and planning schemes focus on planning matters, whilst decisions under the Environment Protection Act 1970 focus on pollution control. Nevertheless, decisions under each Act must have regard to issues arising under the jurisdiction of the other Act[34] and resolve land use conflicts.[35]

[33]For example, see SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156.

[34]For example, under the Planning and Environment Act 1987, section 60(1A)(f) requires the responsible authority and section 84B(2)(e) requires the Tribunal to take account of and give effect to any relevant State environment protection policy declared in any Order made by the Governor in Council under section 16 of the Environment Protection Act 1970. Section 37A(a) of the Environment Protection Act 1970 requires the Tribunal considering an application for review or a declaration to take into account any relevant planning scheme.

[35]Tribunal’s Reasons [82] (citations in original). 

1. A footnote to this passage refers specifically to s 37A(a) of the EP Act.

1. We interpolate that no error has been shown in this passage. It recognised the independent focus of decisions made under the EP Act but recognised the statutory requirement that the Tribunal have regard to the relevant planning scheme.

1. The Tribunal then went on to deal with the relevant planning framework under the sub-heading ‘Context of the site’.  It described the land developers’ land as follows:

The Mt Atkinson and Tarneit Plains PSP^[[36]] has been completed and incorporated into the Melton Planning Scheme (Amendment C162). The future urban structure for the PSP is included in figure 8.

This PSP indicates that the land immediately to the west of the landfill site will comprise a mix of industrial and retail uses. A large area of the industrial land will be given over to the proposed Truganina terminal station. Drainage reserves, which incorporate the head waters of Skeleton Creek, are proposed that will include shared recreational pathways. A high-pressure gas pipeline easement is shown along Hopkins Road along with the present easement and pipeline along Middle Road. Business and residential uses and a town centre are planned to the north-west of the proposed landfill cells, along with up to four possible school sites. Extension of the arterial road network along Middle Road is shown.

Development has commenced in the Mt Atkinson and Tarneit Plains PSP, some 2km from the western boundary of the proposed landfill site. Residential development has commenced to the south in the Truganina PSP some 3km to the south of the landfill site.

…

Figure 9 shows that urban development is proposed immediately to the west of the landfill, which is in the Urban Growth Zone Schedule 9 (UGZ9). To the south is a portion of land zoned Farming (FZ) approximately 500m wide, beyond which is the continuation of the UGZ. Land to the east is in part Public Conservation and Resource Zone (PCRZ), FZ and Special Use Zone Schedule 8 – Prisons Precinct (SUZ8), which contains the Dame Phyllis Frost Centre, Ravenhall Prison and Metropolitan Remand Centre. North of the present-day landfill is the remaining area of SUZ1 (the quarry land) and beyond is a stretch of FZ land and IN3Z land. To the north of this is the Western Freeway and the largely residential land of Caroline Springs.

Apart from the land use planning that has and is occurring around the site, the Mt Atkinson and Tarneit Plains PSP anticipates and has responded to buffer requirements for the high-pressure gas pipeline along Hopkins Rd and the blast and amenity buffers for future quarry operations. These are shown in figure 10. We note in particular that there is a 500m ‘quarry sensitive use buffer’ nominated in this plan. There is no translation of this buffer into the Melton Planning Scheme.

Further, we note that no buffer is shown for the proposed landfill operations. This is to be controlled by way of DDO4, which has been included in the Melton Planning Scheme under Amendment C162. The extent of DDO4 is shown in figure 11. It applies to land 500m from the proposed landfill cells. It is not described as, nor we do we ascribe the purpose of this DDO to be, a land use buffer (i.e. to control or regulate land use). DDO4 seeks only to regulate how development may occur.[37]  

[36]Precinct Structure Plan. 

[37]Tribunal’s Reasons [85]–[87], [89]–[91]. 

1. The Tribunal then set out extrinsic materials relating to amendments C162 to the Melton Planning Scheme, which introduced a Design and Development Overlay — Schedule 4 (‘DDO4’) to respond to the risk of landfill gas migrating from the landfill into the adjoining area.  The DDO4 applies to the precinct within 500 metres of the proposed landfill cells and requires a permit for buildings, works and subdivisions.  It further requires permit applications to be supported by information relating to mitigation of the risk from landfill gas migration. 

1. In addition to the DDO4, land use potentially affected by the landfill extension is governed by a range of provisions under the Urban Growth Zone Schedule 9 (‘UGZ9’) providing a detailed set of permit controls and land use prohibitions which limit use within areas designated for light industrial use. 

1. After detailing these controls,[38] and noting further controls including a quarry blast buffer surrounding the quarry site, the Tribunal observed as follows:

The development and use of the land along the interface with the quarry and hence with the landfill are not unfettered. Apart from DDO4, a range of other matters are to be taken into consideration and planning controls apply under the UGZ9.[39] 

[38]Tribunal’s Reasons [95].

[39]Tribunal’s Reasons [99].

1. The Tribunal then responded to what we shall call a ‘reverse amenity’ submission made on behalf of the land developers in the course of the Tribunal hearing.  The gravamen of this submission was that if the environmental measures proposed for the MRL were as satisfactory as Landfill Operations contended, then the planning scheme controls were draconian and unduly onerous.  At one point counsel for the land developers had put it this way: 

We have found ourselves subject to - well, it’s effectively, I guess, the off-site buffer. Because although we own the land and have the capacity to develop the land, only in the Industrial 1 zone, where, subject to DDO4, which is effectively saying that our land can only be developed if we can do the sort of work that Landfill Operations ought to be doing to demonstrate that that risk is not problematic beyond 100 metres, either in LFG^[[40]] or odour terms.

If the outcome of this case is that the tribunal finds that the 100 metre buffer is sufficient to fully comply with the BPEM and the SEPP in terms of LFG and odour impacts on the land to the west then we would want you to say that in the clearest possible terms, so we can then go to the City of Melton or the department or whoever’s in control and say, ‘Take DDO4 off our land.’ It’s an unnecessary burden because the tribunal has found as a fact or facts that there’s no need for it.

[40]Landfill Gas.

1. The Tribunal said:

We find the complaints of the developers about the onerous nature of DDO4 difficult to reconcile when regard is had to the range of other planning controls applied under UGZ9 (and the PSP). We observe that in planning land uses to the west of the MRL and quarry, a range of constraints have been identified. The PSP, through the auspices of the UGZ9 and DDO4, has sought to manage and integrate the development and use of this land with those constraints.

In our view, the arguments about landfill gas and odour impacts put to us by the developers were tantamount to the developers seeking to run a case against the planning controls that have been put in place.

In our jurisdiction under the Environment Protection Act 1970, we are required to consider the planning scheme.[41] We have done this and conclude that the scheme seeks to integrate the development of future land uses with the present and future development of the quarry and the MRL. It is not our role in the context of this proceeding to critique or review these planning controls. Rather, we consider that the proposal and the works approval provide for development consistent with the planning scheme.

We also note that this was the conclusion broadly reached by the Minister in determining to grant the planning permit for the proposal.[42] 

[41]Section 37A(a) of the Environment Protection Act 1970.

[42]Tribunal’s Reasons [100]–[103] (citation in original). 

1. We interpolate that in our view no error has been demonstrated in these observations either. They simply reflect and express the fact that the Tribunal was bound by s 37A to have regard to the existing planning scheme.

1. The Tribunal then dealt with the strategic waste management framework before turning to relevant policies under the EP Act.

1. After referring to the WMP and BPEM, the Tribunal introduced its discussion of the issue of odour as follows:

Protection of amenity and air quality

The preamble of the WMP and the policy framework objectives establish that the intent of the WMP is to protect people and the environment, including local amenity, from inherent risks arising from the disposal of waste to landfills. It is not contested that the generation of odours and dust are inherent risks to local air quality arising from landfill operations.

In this section we focus on the matter of odour. Whilst dust is another possible risk to air quality, the grounds of the various applicants did not pursue the matter of dust emissions. To be clear and for the sake of completeness, we recognise that dust emissions can potentially impact local air quality, however the management of dust is subject to well established practices that can be applied to this operation. Given this and the fact that no grounds were pursued about dust impacts, our focus on air quality is on odour emissions as pursued by Melton, the developers and Stop the Tip.

Parties’ positions and evidence

Odour was the single most contentious issue associated with the proposal raised by Melton, the developers and Stop the Tip. They say that residents near the existing landfill already experience adverse odour impacts. They assert that the impacts will be exacerbated by the additional landfill cells. The works and conditions will not sufficiently manage odour impacts. As a result, the emission of odour will be inconsistent with the SEPP (AQM) and the WMP through adverse effect on local amenity.

Five expert witnesses gave evidence about odour over many days, none of whom agreed with one another. As well, many lay witnesses were called by Stop the Tip who gave evidence about their experiences of odour, which they said emanated from the existing landfill operations at the MRL. The following experts gave evidence on behalf of the following parties:

·Mr Todoroski on behalf of Landfill Operations.

·Mr Welchman on behalf of Melton.

·Mr Graham on behalf of the developers.

·Dr Bellair and Dr Ross on behalf of Stop the Tip.

The key issue about odour

We accept that evidence and survey results tabled in the course of the hearing about odour migration beyond the boundary of the site demonstrate that landfill operations in the past have failed to achieve the outcome sought by the WMP of protecting local amenity from risks arising from the disposal of waste to landfills. The key question we must determine is whether we are satisfied that the operational procedures proposed by Landfill Operations in respect of the new works will adequately manage those risks and prevent loss of amenity through the emission of offensive odour offsite.[43] 

[43]Tribunal’s Reasons [145]–[149] (citations omitted). 

1. The Tribunal went on to address the adequacy of the proposed odour management regime in order to protect the local amenity to the appropriate standard, putting aside the issue of landfill buffers. 

1. The Tribunal addressed in turn the requirements of the WMP, the BPEM and SEPP (AQM). 

1. It recognised that the objective of the relevant controls was to ensure that there was no loss of local amenity in the area surrounding the landfill.[44]  It concluded:

Thus, in the absence of dispersion modelling, we are left to qualitatively assess whether the amenity of the air environment will remain suitable for the intended use of land within the surrounding land use context in order to ascertain whether the proposal will be consistent with the SEPP (AQM).

However, the test of whether the management of odours is consistent with policy is not limited to the effects of the odour emissions. To be consistent with the SEPP (AQM), the WMP and the BPEM, the management of odour and its sources also needs to demonstrate best practice.[45]

[44]Tribunal’s Reasons [206].

[45]Tribunal’s Reasons [211]–[212]. 

1. The Tribunal further concluded that the legitimate interests of the land developers must be considered contextually and in part by reference to the reasonable expectation of amenity within areas allocated for industrial land use.[46] 

   [46]Tribunal’s Reasons [213]–[216]. 

1. The Tribunal then explained in detail why it found the odour modelling evidence before it to be less than conclusive.[47]  It dealt further with the history of complaints about odour from the MRL[48] and the results of odour surveys.[49] 

   [47]Tribunal’s Reasons [219]ff. 

   [48]Tribunal’s Reasons [261]ff. 

   [49]Tribunal’s Reasons [281]ff. 

1. The Tribunal expressed the following conclusions with respect to offensive odour beyond the boundary of the proposed landfill which, we note, were explicitly contextual:

As we have concluded, the appropriate test under the SEPP (AQM) is whether there will be offensive odours emitted beyond the boundary. We conclude from the monitoring evidence of past activities that odours will be emitted at and beyond the boundary. Whether the odours will be offensive however, requires an assessment of FIDOL factors – frequency, intensity, duration, offensiveness and location. In this respect, we must treat the historical information with some caution.

We have little doubt that in the past, given our findings above, persistent and sufficiently frequent odours of a strength and character to be offensive are likely to have persisted at the Ravenhall Remand Centre and prison complex, as attested to in the evidence of Mr Selisky. This would have been likely for a number of reasons: the proximity of the stage 2 cell complex to this facility (being less than 1km); the prevailing light winds often pushing odours in this direction with limited dispersion; the operation of the Pinegro facility, which had a demonstrable ability to generate distinct odours to a distance of 4kms; and the fact that inmates would have been subject to long term exposure not unlike a residential situation.

However, the new cells, which form the basis of this works approval application, are to be located further to the west of this facility; indeed, well over 2kms. The monitoring data indicates that at this distance, waste odours detected even during worst case scenarios dissipate to a level that is described as weak to very weak, if at all discernible. At a much lower level of intensity, we consider that when the deposition of waste is properly managed in accordance with the BPEM to minimise the emission of odours, waste odour emissions will not be offensive to the workers and inmates at the prison complex.

Similarly, the distance to residential areas to the north and west of the landfill site will be further from the active filling cells. Again, we consider that no offensive odours will migrate to these locations if the deposition of the waste is properly managed.

The new cells will be approximately 1.5km from the residential areas nominated under the Mt Atkinson and Tarneit Plains PSP and related UGZ9. The evidence from the odour experts is that migration of odours in the north-west direction is less frequent than other directions, as was demonstrated in all the numerical models. While we have discounted the modelling, we accept that this was one point of consistency which had an underlying logical basis. In short, stable atmospheric conditions conducive to low dispersion of migrating odour plumes in this direction were considered to be infrequent.

We find that the combination of distance from sensitive land uses and the low frequency of poor dispersion conditions means there will be a lesser risk of odours of sufficient character and strength to be offensive impacting these areas to the north-west.

Closer to the north-west and west boundary, future land uses are indicated to be less sensitive, being commercial and industrial. Whilst being closer to the cells, particularly cells 4 through to 7, again the evidence is that, as in other directions, distinct and offensive odours persisting beyond the boundary are infrequent and, when present, are intermittent. Coupled with the infrequent occurrences of odour migration in these directions, we are not persuaded that even distinct odours will occur often enough to be of an offensive nature in these less sensitive areas.

It is land to the south of the landfill site that is of most concern to us. Currently, the land immediately to the south is zoned Farming and beyond is Urban Growth zoned land. Impacts on farming land are not our main concern here. Such land is open grazing land and, as such, is infrequently visited by workers and land owners. The potential for frequent and distinct odour being experienced by such people is very low.

Further to the south, we are told that although there is no final determination, this land is likely to be developed for industrial and/or commercial uses. That this may occur within 1.5 km of the early proposed cells (cells 1 to 3) is of some concern notwithstanding the lower sensitivity of these land uses.

The odour surveys and the evidence of the odour experts consistently indicates one of the prevalent directions of odour emissions in poor dispersion conditions is to the south. The evidence of the experts confirms that this is to be expected having regard to a conceptual understanding of the frequency of light winds and stable atmospheric conditions.

However, although we hold these concerns, none of the applicants have demonstrated to a reasonable level of certainty that such a preferred migration direction will translate to offensive odours in these areas. The areas are of low sensitivity; therefore it will be necessary to demonstrate that frequent, strong odours would impinge on the amenity of such areas for them to be considered offensive. At best, the surveying and monitoring events indicate that southward migrating odours may be distinct for a distance of 1km to 2kms, but they will be intermittent and infrequent by this distance. We consider it is difficult to conclude on such evidence that these areas will be affected by odours that will adversely impact the amenity of industrial or commercial areas.

We have also concluded that the risk of offensive odour impacting on surrounding land uses is likely to vary with direction.[75] 

[75]Tribunal Reasons [575]–[576]. 

1. In respect of the land to the west of the landfill, which is the focus of the land developers’ case, the Tribunal concluded:

The evidence indicates that poor dispersion of odours to the west would be infrequent and odours are unlikely to migrate beyond 1km. Thus, we find that the industrial and commercial land uses nominated to occur within 1.5km of the western boundary form a suitable buffer to more sensitive land uses beyond. As we have discussed elsewhere, the present planning scheme prevents the establishment of possible sensitive land uses, such as childcare and some educational facilities, within these zones. We are therefore satisfied that the planning scheme controls effectively serve as an acceptable buffer, which meets the purpose of the BPEM requirements for buffer distances with respect to odour.[76] 

[76]Tribunal Reasons [577].

1. It can be observed, first, that the Tribunal founded this conclusion upon the relevant planning scheme controls and, secondly, that its conclusion was one of fact.  The Tribunal went on to find:

Overall, we are satisfied that the need for appropriate buffer distances to be maintained between the landfill and sensitive receptors, as required by the BPEM, have been provided by way of the planning scheme controls that apply to land surrounding the MRL and the proposed works.[77] 

[77]Tribunal Reasons [581].

1. It then returned to the reverse amenity argument advanced on behalf of the land developers. 

We do not consider that the developers, in particular, or Melton can use this proceeding to agitate for a different outcome in land use or development terms to that adopted by Amendment C162 in the guise of seeking to ensure that a 500m buffer is provided from the edge of the nearest cell to the boundary so that the buffer recommended by the BPEM is wholly contained within land owned or controlled by Landfill Operations.

We consider this ignores the evidence and the provision of section 37A of the Environment Protection Act 1970 that in determining an application for review of a works approval, the Tribunal must take into account any relevant planning scheme.[78] 

[78]Tribunal Reasons [582]–[583]. 

1. The Tribunal then expressed its final conclusion concerning the land developers’ interests. 

Therefore, we do not find that the interests of any of the applicants will be unreasonably and adversely affected by completion of the works in accordance with the works approval in terms of the location of the cells and the buffers between the landfill and surrounding land.[79] 

[79]Tribunal Reasons [584].

1. The Tribunal went on to analyse the nature and scope of the Tribunal’s jurisdiction and, in particular, its powers to modify the conditions of the works approval imposed by the EPA.  The Tribunal’s view on these matters was not contested before us. 

1. Finally, the Tribunal expressed its conclusion on the case overall in terms which emphasised the relevance of reasonable proportionality as an element of integrated decision-making. 

The principle of integration of economic, social and environmental considerations therefore requires an integrated approach to decision-making. In practice, it means that a balance is required where there may be some negative economic, societal or environmental outcomes versus other positive economic, societal and environmental outcomes. Proportional responses to environmental hazards are a particularly important aspect of such a balancing exercise.

The policy principle for integrated decision making is particularly relevant to the substantive issue of odour in this proceeding. This is not to dismiss the other various issues raised about the landfill cells being proposed. However, it will be evident from our reasons that, save for the issue of odour, we are satisfied that other aspects of the design and use of the landfill cells deliver acceptable outcomes when tested against the range of requirements under the statutory framework. In respect to odour, the application of the principle of integrated decision making requires us to consider what is the real and substantive effect of the odour emissions and what is the appropriate, proportionate and cost-effective approach to adopt while recognising other positive waste management outcomes that the ongoing operation of this landfill can deliver.

It will be apparent from our consideration of the odour issues that from time to time odour will be emitted beyond the boundary of the landfill site. It may be that sometimes the strength of the odour may be offensive to some of the population. However, we have also been satisfied that the conditions of the works approval (subsequently to be incorporated into a licence) achieve best practice management of the landfill to minimise the risk of these emissions occurring. This is an outcome that is consistent with relevant policy and, as a proportionate response to the harm being caused, is an appropriate balance of integrated decision-making given the other societal, environmental and economic outcomes achieved through the continued operation of the MRL.[80]

[80]Tribunal’s Reasons [671] (emphasis added). 

1. As the primary judge noted, no party took issue before him with this aspect of the Tribunal’s reference to the principle of integrated decision-making.[81]

   [81]Reasons [27].

1. The Tribunal expressed its overall conclusion that a works approval should be granted stating in part:

Having regard to our findings about the nature and scope of the Tribunal’s jurisdiction, and the principle of integrated decision-making, we have concluded that a works approval should be issued, but on amended and additional conditions. These conditions have been framed to ensure that there will not be any inconsistency with any applicable policy, and that the risks of any discharge, emission or deposit of waste to the environment that could unreasonably and adversely affect the interests of any of the parties will be properly and appropriately managed. On this basis, we do not find that any of the grounds of review have been established.[82]

[82]Tribunal’s Reasons [671].

Analysis

1. We accept that the construction of questions of law and grounds of appeal in applications for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 is not to be undertaken unduly technically but rather with a view to exposing the real legal issues which are intended to be raised.[83] 

   [83]Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); Anderson v Stonnington City Council [2020] VSCA 229, [52]–[55]; McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [31]–[38].

1. The power to amend notices of appeal from tribunals[84] will also often be used by a judge at first instance to clarify the issues in the proceeding. 

   [84]Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, r 4.06(3).

1. Nonetheless, the foreclosure argument now advanced by way of attack upon the Tribunal’s reasoning in the present case goes beyond the plain meaning of both question 10 and proposed ground 10 in the proposed notice of appeal below. 

1. Question 10 is directed to the conclusion reached by the Tribunal and postulates a requirement to provide a specified buffer (with no reference to the alternative of an equivalent environmental outcome).  The new submissions made on behalf of the land developers seek to impugn the Tribunal’s reasoning with regard to an alternative environmental outcome. 

1. Whilst it is true that the land developers’ submissions before the primary judge went beyond the stated ground of appeal, no further question of law was identified.  Furthermore, the submissions below were in part directly contrary to the argument now advanced insofar as it was submitted that the Tribunal erred in undertaking its own assessment of an acceptable buffer by:

a.misunderstanding that the Buffer Required Outcome mandates the prescribed 500m buffer if ‘available’;

b.going ‘behind’ the prescribed Buffer Required Outcome to assess whether the planning scheme controls on the PSP land provide an ‘acceptable buffer’;

c.substituting its own assessment that the planning scheme controls on the PSP land provide an ‘acceptable buffer’; and

d.misinterpreting the Buffer Required Outcome as 500m between the landfill and ‘sensitive land uses’ only (see [575], [579] and [581] of the reasons) when on a proper construction of the Buffer Required Outcome the prescribed buffer is 500m between the landfill and any building or structures.[85] 

[85]Written Submissions of the Land Developers dated 15 October 2019, [98] (footnote omitted). See also the Written Reply Submissions of the Land Developers dated 19 February 2020, [65]–[73]. At the hearing before the primary judge, then senior counsel for the land developers said the content of the questions of law was not ’circumscribed … by the questions exclusively’ but was also to be identified by having regard to the land developers’ ‘comprehensive submissions delivered in advance of the hearing’.

1. The argument that the Tribunal wrongly held that issues as to the adequacy of the buffer requirement were ‘foreclosed’ by the ‘part 3 decisions’ was not put forward as the basis for leave. 

1. In oral argument before the primary judge, two questions were agitated, namely:

·Was a 500 metre buffer available at all relevant times?

·Did the Tribunal fail to have proper regard for the prospect of there being numerous buildings on the first applicant’s land within the buffer when deciding whether the use of that land would be a sensitive use? 

1. The latter argument was summarised by counsel for the land developers as follows:

And although the tribunal did proceed on the basis that there would be less sensitive uses on the Mount Atkinson land because the, as we described yesterday, the residential and other mixed uses were further to the north and this was more an industrial precinct, we say that the proper analysis was not that it was an industrial precinct but rather that the policy framework treats it as sensitive and that is what drives the location of the buffer. We say the tribunal just simply didn’t come to grips with that issue. 

1. In our view, no arguable error has been identified bearing on the refusal of leave by the primary judge.  He responded to the question of law and the relevant ground of appeal before him. 

1. Footnote 37 of the land developers’ written case in this Court implicitly acknowledges that the submissions now made agitate a new argument:

To the extent that the error here asserted is differently formulated from ground 10 as put below, the interests of justice warrant permitting the Landowners to rely on it: see Haritos v FCT (2015) 233 FCR 315, [63]–[83]; cf Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 306 ALR 125, [19]. Even if the primary judge’s characterisation of the Tribunal’s reasons is correct, its express refusal to consider the buffer contentions[86] was a fundamental error of law, sufficiently connected to question 10 below to warrant this Court granting leave and allowing the appeal. 

[86]The buffer contentions were defined as being that the use of the proposed works would be inconsistent with the buffer requirement because: (a) the new cells would be within 500 metres of existing structures and future buildings and structures contemplated by the Precinct Structure Plan (PSP); and (b) a 500 metre buffer was ‘available’ on the quarry land by reducing the size of cells 4–7.

1. This Court should not permit a party on an appeal of this type to raise what is in substance a new question of law unless there are circumstances that make it expedient in the interests of justice to do so.[87] 

   [87]See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438, quoting Connecticut Fire Insurance Co v Kavanagh [1892] AC 473, 480 (Lord Watson). This principle has been applied in Green v Sommerville (1979) 141 CLR 594, 608; O'Brien v Komesaroff (1982) 150 CLR 310, 319;  Coulton v Holcombe (1986) 162 CLR 1, 7–8; Water Board v Moustakas (1988) 180 CLR 491, 497; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, 284; Whisprun v Dixon (2003) 200 ALR 447, 461 [51]; Botsman v Bolitho (2018) 57 VR 68, 105 [167]; Commissioner of State Revenue v Mondous (2018) 55 VR 643, 661–2 [77]–[79].

1. In the present case, a series of factors support the conclusion that the interests of justice do not justify the acceptance of what is in substance a new ground: 

·The purpose of s 148 of the Victorian Civil and Administrative Tribunal Act 1998 in cases such as the present is to provide a right of further appeal on limited grounds from a process of review of the decision of the primary decision-maker. 

·The identification of a question of law is the foundation of the right to appeal. 

·The right to appeal is conditioned by a requirement for leave which is informed by the requirements of the rules of the Supreme Court requiring specification in a notice of appeal of the relevant question of law and concise statement of the grounds or proposed grounds of appeal.[88] 

[88]Supreme Court (Miscellaneous Proceedings) Rules 2018, r 4.06(1)(v) and (vi). 

·The failure to adequately specify the proposed question of law and concisely state the proposed grounds of appeal in the present case occurred after a 20 day hearing on the merits and the receipt of very detailed reasons from the Tribunal, and despite the opportunity for three days of argument before the primary judge. 

·No explanation has been given for the delay in raising the new point. 

·The underlying dispute is one which involves issues of the public interest, namely the provision of waste disposal infrastructure endorsed by strategic waste disposal planning as a hub of state importance. 

·Delay and cost due to a protracted appeal process has the potential to cause Landfill Operations to suffer economic loss.

·The failure to properly identify the point now relied on thus has the real capacity to cause prejudice to both the public interest and the interests of Landfill Operations.[89]   

·There is also a public interest in the proper use of the resources of this Court which requires that the real point (if any) of a proceeding of this kind be identified and addressed before the primary judge. 

·In appeals of this kind the Court should not ordinarily be deprived of the assistance of the views of the primary judge on the real issues in the case. 

·The Court should give effect to the overarching purpose stated in s 7(1) of the Civil Procedure Act 2010 which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[90] 

·The late grant of leave to appeal on a new ground would lessen public confidence in the works approval and judicial system. 

·For the above reasons, it would be contrary to the interests of justice to allow objectors to a works approval to raise a plethora of other (ultimately unsuccessful) points, only to unveil a new point in the Court of Appeal. 

[89]The proceeding in the Trial Division was granted a speedy hearing on the basis of affidavits amplifying these risks. 

[90]See CFMEU v Australian Building and Construction Commissioner [2017] FCAFC 77; (2017) 251 FCR 258, 533 [26], regarding legislation to like effect.

1. The proposed ground of appeal does not raise a question of statutory construction or an issue fundamental to the Tribunal’s jurisdiction.[91]  It is not a point of general importance but one that is specific to the Tribunal’s process of reasoning in this case.  Nor is the point one which it is convenient to deal with in the context of a case in which the grant of leave to appeal is otherwise justified.  The new point is the only point now in issue.  In our view, the Court should not entertain it.  There are no special circumstances which outweigh the factors to which we have referred supporting the conclusion that it is not in the interests of justice to allow the point to be belatedly put forward. 

   [91]Anderson v Stonnington City Council [2020] VSCA 229, [52]–[55]; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315, 342 [63], 386 [207], 395 [256]–[257].

1. This said, we do not regard the ground of appeal advanced before us as having any prospect of success in any event. 

1. It was ultimately submitted that deference to the planning decision-makers led the Tribunal to fail to consider whether a 500 metre buffer was available and to fail to consider whether the same environmental outcome could be achieved if the 500 metre buffer was unavailable. 

1. The premise of the submission made to this Court is that the Tribunal regarded the adequacy of the proposed buffer as ‘foreclosed’ by the outcome of processes under the P&E Act resulting in the relevant planning scheme provisions.

1. We have set out the Tribunal’s Reasons in some detail because we do not accept that this premise can be made out.  A careful reading of the Tribunal’s decision as a whole shows that:

(a)       it did not regard the planning scheme measures adopted to address the anticipated impacts of landfill gas as adequate and required additional works to address this issue;

(b)      it had regard to the provisions of the planning scheme as contextually relevant to its consideration of the question whether the amenity of sensitive uses would be affected by odour generated by the use of the proposed landfill;[92]

[92]See Tribunal’s Reasons [102], [554], [582]–[583]. 

(c)       it had regard to the question whether future development of the industrial area would create an area accommodating sensitive uses;

(d)      in the course of dealing with this question it responded to the reverse amenity argument advanced on behalf of the land developers, namely that the Tribunal should itself evaluate the need for, and appropriateness of, the planning scheme controls, having regard to the best practice management measures proposed at the landfill;[93]  and

(e)       in considering the amenity issue and, in particular, the odour issue, the Tribunal ultimately emphasised that it had given substantial weight to the principle of reasonable proportionality. 

[93]See Tribunal’s Reasons [101]–[102], [555]–­[556]. 

1. There was no error in the Tribunal proceeding by reference to the planning scheme provisions, nor in having regard to the principle of reasonable proportionality. 

1. Contrary to the land developers’ submissions, the Tribunal did not:

(a) treat the making of decisions under the P&E Act as foreclosing or relieving it from making its own decision as to the adequacy of the buffer proposed for the works proposed, assessed in the context of the site; or

(b)      rely on the principle of integrated decision-making in its reasoning as requiring deference to other decision-makers or relieving it from the need to make an independent decision as to the adequacy of the proposed buffer. 

1. A fair reading of the Tribunal’s decision demonstrates that it did not engage in ‘top down reasoning’ as the land developers submit.  The Tribunal did not take planning decisions to have finally determined the buffer issue.  It simply had regard to the planning scheme as establishing the land use context in which the buffer outcome had to be determined. 

1. Further, the land developers’ submissions entirely misread the purpose for which the Tribunal referred to the principle of integrated decision-making in its ultimate conclusions.  This was explicitly to emphasise the importance of reasonable proportionality and not to give overriding importance to the notion of integrated considerations. 

Conclusion

1. The application for leave to appeal will be refused. 

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