Yarra Ranges SC v Australian Native Landscapes Pty Ltd [2009] VCAT 1025 .....(25 June 2009)

SUMMARY

These proceedings have involved the hearing of a considerable amount of evidence about the operations at, and generation of odour from, a green waste composting facility located near Coldstream and Lilydale. Amongst other matters, the proceedings have involved the question of whether or not the Environment Protection Authority (EPA) has the discretion to refuse to issue a licence for the facility in the circumstances of the application made by the facility operator, Australian Native Landscapes Pty Ltd (ANL).

After considering these circumstances and the terms of the Environment Protection Act 1970 (the EP Act), the Tribunal has found that there is no discretion to be exercised by the EPA and a licence is required to be issued. The question of licence conditions that are to be applied have been reserved for further consideration and directions have been made for this to happen. However, the Tribunal has found that such conditions should not be inconsistent with the Works Approval. The Works is considered to remain applicable to the facility when having regard to the requirements of the EP Act. Even with the licence being so granted, the Tribunal notes that there is a variety of steps that the EPA can take under the EP Act to address the nuisance that has been found to occur from this facility.

In respect to the proceedings bought by Yarra Ranges Shire Council, the Tribunal has directed enforcement actions that require ANL to stop receiving green waste materials within four months of the date of the order. This time is to allow for arrangements to be made to divert the waste to other facilities. Remaining waste at the facility is to be processed within three months of the waste diversion commencing.

The Tribunal is conscience of a variety of outcomes that may arise from these decisions and anticipate that there will be further discussions and negotiations between ANL, the EPA and Yarra Ranges SC about this facility. In anticipation of this, we have adjourned the applications bought by the Yarra Ranges SC to cancel the permit and by ANL to amend the permit.

4. In relation to enforcement order application P2788/2006, we find that there has been and is continuing a contravention of condition 14 of planning permit YR-2004/164 issued on 19 July 2004 and we order that, subject to any further order of this tribunal or the consent of the responsible authority the respondent company Australian Native Landscapes Pty Ltd must cease receiving green waste for composting on the land by four months from the date of this document and must process and remove from the land all green waste, composting material and composted material within 3 months thereafter.

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