Skye Environmental Services Pty Ltd v Environment Protection Authority

[2005] VSC 477

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5774 of 2004

SKYE ENVIRONMENTAL SERVICES PTY LTD	Applicant
v
ENVIRONMENT PROTECTION AUTHORITY AND FRANKSTON CITY COUNCIL	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 DECEMBER 2005
DATE OF JUDGMENT:	9 DECEMBER 2005
CASE MAY BE CITED AS:	SKYE ENVIRONMENTAL SERVICES PTY LTD v ENVIRONMENT PROTECTION AUTHORITY & ANOR
MEDIUM NEUTRAL CITATION:	[2005] VSC 477

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Application pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal – Proposed solid inert waste landfill –Requirement for works approval and planning permit – Combined decision - No arguable question of law capable of vitiating the decision – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. Canavan QC with Mr C. Townshend	Deacons
For the First Respondent	Mr B. Dennis	EPA Solicitor's Office

HIS HONOUR:

1. This is an application pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal from orders of the Victorian Civil and Administrative Tribunal ("the Tribunal") of 6 April 2004 with respect to related applications for review ("appeals"). Both appeals concerned a proposed solid inert waste landfill and associated waste transfer station on land in Harold and Ballarto Roads, Skye. The Tribunal determined that no works approval should issue for the proposed landfill pursuant to the provisions of the Environment Protection Act 1970 ("EP Act") and that no planning permit should issue pursuant to the provisions of the Planning and Environment Act 1987 ("P&E Act"). 

1. In order to justify leave to appeal the applicant must identify a question of law which is relevant to the granting of the relief sought on appeal.  The importance of the question of law either generally, or to the would-be appellant in particular, is a relevant factor.  The applicant must show that there was a real or significant argument to be put on the question of law at least to this extent:  that there is sufficient doubt about it to justify the grant of leave.  Moreover, it may have to be shown that to allow the alleged error to go uncorrected would impose substantial injustice.[1]

   [1]Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331

1. The applicant contends that the Tribunal erred in law by dealing jointly in its decision with the issues arising on the works approval appeal and the planning appeal.

1. In particular it contends that the defined meaning of "policy" under the EP Act is narrower than the notion of policy relevant to planning considerations. Section 4 of the EP Act defines policy as "a State environment protection policy or a waste management policy."  Both types of policy are specifically provided for under the EP Act. 

1. It is further submitted that the sense in which "policy" is referred to as a potential basis for refusal of a works approval application under s.20C of the EP Act is the narrow defined sense and not the potentially broader sense in which the word is used under the P&E Act.

1. Whilst for present purposes it is sufficient to say that this framework of analysis might give rise to an arguable question of law, the critical question in the present case remains whether it did in fact do so.

1. The Tribunal stated the issues in both appeals to be:

"•       Is the proposal supported by policy?

·Does the proposal represent a risk of contamination of the groundwater aquifer?

·Can the risk be addressed in design and engineering details?

·Is the level of risk mitigated by the need and the advantages associated with the rehabilitation of the site?"[2]

[2]Skye Environmental Services Pty Ltd v Frankston CC [2004] VCAT 682 (6 April 2004) at [83]

1. In the course of its reasons with respect to policy, the Tribunal first identified potentially relevant policies and then specifically addressed the policies which bore directly on the proposals before it.  It accepted that there was a significant amount of policy support for the ultimate use of the appeal site for landfill purposes and in particular that the Frankston Planning Scheme supported the view that planning policy favoured the proposed use of the site. 

1. If despite the terms of s.37A of the EP Act such planning policies were to be regarded as irrelevant to the works approval (which I doubt) they favoured the plaintiff and could not be said to vitiate the Tribunal's decision against the plaintiff. 

1. The Tribunal then addressed relevant State environment protection policies relating to landfills and groundwater.  It further addressed a document comprising a draft November 2003 Waste Management State Environment Protection Policy.  Ultimately it concluded as follows:

"In conclusion the Tribunal is of the view that it is inappropriate at this time to permit the use of the site for the disposal of solid and inert wastes. The Tribunal finds that the proposal would constitute a risk endangering a good quality potable groundwater aquifer which has current significant use and on which in future there will most likely be increased demands. The engineering and management measures advanced for the protection of the aquifer are familiar to the Tribunal and have been used in other areas, but the groundwater was of a lower quality. Without recourse to draft policy, existing policy strongly supports the protection of potable groundwater sources. We find the advantages associated with rehabilitation of the site are insufficient to justify the grant of the applications. In the face of weak evidence as to need, and having regard to the precautionary principle incorporated in existing policy we find the uncertainty as to risk and the strong policy for protection of groundwater warrants the refusal of the applications."[3]

[3]Above at [113]

1. On its face this conclusion involved the exercise of discretion by reference to relevant considerations on the basis of findings of fact open on the evidence.

1. The first question of law raised by the plaintiff is whether it was proper for the Tribunal to have regard to the draft November 2003 policy. 

1. In my view this question cannot be said to raise an arguably vitiating question of law, because ultimately the Tribunal made clear that it did not rely on draft policy in reaching its conclusions.

1. Likewise, although questions might arise as to what weight hypothetically should be given to the document entitled Towards Zero Waste, the Tribunal made clear that it had regard to it only as a source of statistical data.  This course was open to it on the evidence before it.

1. It is next submitted by the plaintiff that the Tribunal "erred in law in finding that there was weak evidence as to need" and misdirected itself as to the relevance of need. 

1. The Tribunal relevantly concluded:

"… that there is a requirement for landfill sites to be available now and in the future but there is no pressing urgency for the development of this site at this time."[4]

[4]Above at [100]

1. This conclusion was open to the Tribunal on the basis of the evidence to which it referred in its decision and in particular that of Ms Pickles and Mr Henshall. 

1. The policy support for the proposed use contained in the planning scheme did not compel a particular view as to the present need for its implementation.

1. The Southeast Regional Waste Management Plan ranked the proposed site for a landfill as No. 12.  It likewise did not compel the view that there was a need to develop the site in the short term.  Indeed, it supported the Tribunal's conclusion. 

1. Likewise the evidence of Mr Aylward did not compel a contrary conclusion and the Tribunal's reasons demonstrate that it had regard to such evidence. 

1. Insofar as need was had regard to by the Tribunal, it was treated as a factor potentially favouring the applicant.  If no regard should have been had to the question of need save insofar as that consideration was reflected in documentation prepared under an approved waste management plan pursuant to the EP Act, then that potential error could not vitiate a decision against the plaintiff.

1. It is only if the Tribunal's conclusion as to the degree of need was not open to it that it might be said to have erred in a way which prejudiced the plaintiff in relation to the question of need.  It is clear that there was evidence upon which the Tribunal could find as it did.

1. Further, the Tribunal's decision did not foreclose a further application for permission for a landfill upon the appeal site.  It specifically accepted that there may well be an argument of greater need with respect to the site at a future time and implicitly accepted that such an argument might alter the weight of the evidence favouring the grant of an approval.  The Court was advised that the plaintiff has in fact made an alternative application for approval of a revised design upon the appeal site.  Further the relevant State environment protection policy has changed.  It is difficult to see that it would be an appropriate exercise of the Court's discretion to now grant leave to appeal.  The reality is that there is a clear basis on which it can now be argued before the Tribunal on any future appeal that circumstances have changed since the decision of 6 April 2004.  Further, those changes bear directly on the issues which it is principally sought to agitate in this Court.

1. It was further contended the Tribunal misdirected itself as to the meaning and application of the precautionary principle as that term is defined in the EP Act and cl.5 of the State Environment Protection Policy Groundwater of Victoria, 17 December 1997 ("the Groundwater SEPP").

1. The Tribunal set out the relevant principles stated in the Groundwater SEPP at [46] and [89] of its decision.

1. In my view it was open to the Tribunal to regard the precautionary principle as counting against the proposal in the terms that it ultimately did:

"… having regard to the precautionary principle incorporated in existing policy we find the uncertainty as to risk and the strong policy for protection of groundwater warrants the refusal of the applications."[5]

[5]Above at [113]

1. In my view it is beyond argument that the application of that principle to circumstances in which a risk of serious or irreversible damage to the environment is identified may lead to the refusal of a works approval.

1. Further, it is clear that it was open to the Tribunal to find that in the event of the grant of approval:

(a)the groundwater and aquifers would not be protected to the greatest extent practicable from serious or irreversible damage arising from human activity;  and

(b)the groundwater was potable or potentially potable.

1. The Tribunal's decision was in substance relevantly one to the effect that the proposed landfill did constitute an unacceptable risk of serious damage to the environment.

1. For the above reasons the applications for leave to appeal should be refused.  The questions of law put forward on behalf of the plaintiff are not sufficiently arguable to lead me to accept that the Tribunal's decision is attended by any material doubt.

1. When analysed the questions are concerned either with matters which could not vitiate the Tribunal's decision or with questions of fact turning on the weight of the evidence.

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