1. VPELA RED DOT DECISIONS
25 October 2018
Serena Armstrong
Barrister
Isaacs Chambers

2. Cases considered
Greater Geelong CC v C&D Recycling Pty Ltd (Red Dot) [2018] VCAT 831 (31 May 2018)
National Property Group Pty Ltd v Manningham CC (Red Dot) [2018] VCAT 313 (9 March 2018)
Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2018] VCAT 1570 (16 October 2018)

3. Greater Geelong CC v C&D Recycling Pty Ltd (Red Dot) [2018] VCAT 831
Application by Council for cancellation and enforcement of permit
Permit had been issued at the direction of VCAT for a materials recycling facility at Lara
Large quantity (350,000 cubic metres) of building and demolition waste brought onto the land by the operator with little (if any) recycled
Council, EPA and CFA considered it a serious fire risk with health and environmental safety concerns

4. Cancellation for “substantial failure” to comply with conditions
VCAT has discretion to cancel or amend a permit in one of six circumstances, including under s 87(1)(b) if it considers there has been “any substantial failure to comply with the conditions of the permit”
This requires “more than just a breach of conditions” – it is for VCAT to decide what it considers to be “substantial” in the circumstances of the particular case
Substantial failure can mean the failure was significant in relation to a particular condition and that the condition itself was of importance
Substantial failure can also mean there was a collective and persistent failure to comply with numerous permit conditions

5. Common Principles
A substantial failure to comply with permit conditions is not the direct equivalent of a breach of permit conditions
Normally, an enforcement order or a prosecution would be seen as the more appropriate step to remedy a breach of conditions
An application to cancel a permit might be unlikely to succeed where other means of enforcement have not been tried

6. Common Principles
To justify the cancellation, there would generally need to be evidence:
of intentional, continuous and/or manifestly clear breaches of the permit conditions; and/or
that a failure to comply with important conditions has been persisted in; or
an indication that the use has become untenable or that it has become impossible to comply with the conditions

7. Tribunal’s findings
Collectively there was systematic and ongoing non-compliance with 18 of the 37 conditions
Individually there were many conditions where the breach was substantial
Particular concern noted with respect to fire safety and human health risks
There was a sufficient basis for VCAT to exercise its discretion to cancel the permit should it wish to do so

8. Tribunal’s findings However, it also found:
the use of the land for materials recycling had not become wholly untenable;
the conditions had not become impossible to comply with; and
alternative means of enforcement had not been fully progressed to completion

9. Cancellation v Enforcement
Disposal into landfill if permit cancelled and the waste materials not recycled estimated:
to cost up to $100 Million
to take months
result in poor environmental outcomes
If the materials recycling was allowed to continue by way of a staged enforcement order:
the clean up cost would be approximately $45 million;
a new operator would be sought
potential for at least some of the waste to be recycled and diverted from landfill

10. Further considerations
VCAT had no confidence the operator would comply with any enforcement order – history of ongoing non-compliance and insufficient funds to comply with the conditions
Landowner opposed cancellation – VCAT willing to place reliance upon continuing involvement and input of the landowner or a new operator appointed by the landowner
Recognition landowner would likely inherit the problem
The money and willingness to address the risks and management issues would most likely come through an ongoing business

11. The dilemma
“It will be apparent that we are faced with a dilemma in deciding the cancellation proceeding and enforcement proceeding, in essentially seeking to determine the ‘least worst’ option for the Land … it will become apparent that we consider the cancellation of the Permit is a more limiting option, which will not address the ongoing fire risks, nor facilitate a clear pathway to a longer-term solution for the use and management of the Land.” [77]

12. “The ultimate aim of any enforcement order (as opposed to prosecution) is to attempt to fix the planning mischief that has been created by the contravention of the permit … it will be apparent …that we consider a staged approach towards compliance is the preferable option at this time and … provides the best opportunity to address the significant planning issues that now confront this site over the medium to longer term.” [85]

13. Exercise of discretion under s87(1)(b)
Just because a permit can be cancelled does not mean it should be cancelled
The Tribunal must consider a range of matters, including:
the relevant planning scheme provisions, objectives and policies, as well as any relevant SEPP
any significant planning, environmental, economic and social consequences of the cancellation

14. Tribunal found the use of the Land for a recycling facility continued to be appropriate
Considered the environmental and economic considerations: high cost of disposal to landfill and disappointing environmental outcome
Found operator could not afford the landfill costs if permit was cancelled and that it, and possibly the landowner, would “simply become insolvent and walk away from the problem, and the ultimate cost of clean-up and disposal would be left to the public purse”

15. National Property Group Pty Ltd v Manningham CC (Red Dot) [2018] VCAT 313
Section 79 Application for review of the failure of the responsible authority to grant the permit within the prescribed time
Council elected to give notice of the permit application, rather than requiring the permit applicant to do so
Question arose as to whether the ‘clock stopped’ during the giving of notice by Council (as opposed to the permit applicant) for the purposes of calculating whether the 60 days had elapsed

16. Member Whitney: time had not been halted during giving of notice by Council
Looked closely at regulation 32 of the Planning and Environment Regulations 2015
Regulation 32(1) prescribes the period of time for the purposes of s79 of the Planning and Environment Act 1987 and regulation 32(3) addresses how that time is to be calculated

17. Regulation 32(3)(a) Planning and Environment Regulations 2015
(3) The prescribed time for the purposes of section 79 of the Act does not run—
(a) if the responsible authority requires the applicant to give notice under section 52(1) or (1AA) of the Act, for the time between the making of that requirement and the giving of the last required notice; and

18. “In the present circumstances, the Council did not require the Applicant to give notice. Rather, the Council undertook public notification itself. Section 52(1) envisages that a responsible authority might itself give public notice of an application, and indeed, this often occurs. However, for the purposes of calculating the elapsed days for a section 79 application, where a responsible authority elects to give public notice rather than requiring a permit applicant to do so, the halt on time running that is contained in regulation 32(3)(a) does not apply.” [24]

19. VCAT Four Step Table Step 3 – The giving of notice
For the purposes of counting the days that elapsed giving notice:-
The date a requirement to give notice of a permit application is made is the date the written requirement is despatched to the permit applicant by the Responsible Authority.
The date the last notice was given is usually the most recent of the following dates:
(a) The date the last notice was posted, or;
(b) The date the last notice was erected upon the land, or;
(c) The last date a notice was published in a newspaper.

23. Grebe Investments Pty Ltd v Bass Coast SC (Red Dot) [2018] VCAT 1570
Important reminder of the need for a CHMP to encompass the entire activity area
An application had been commenced under s79 for Council’s failure to decide the permit application for subdivision within the prescribed 60 day period
The Aboriginal Heritage Act 2006 provides that if Council is required to decide a permit application within a specified period and if a CHMP is required the period does not start until the Council receives a copy of the approved CHMP
The question arose as to whether there was an approved CHMP for the activity

24. Background
Permit application to subdivide land on the outskirts of Wonthaggi into 83 lots
The land was in two parts – a large part of approximately 22.7 ha and a smaller part of 3.6 ha
Two weeks before the hearing commenced, the Applicant wrote to VCAT advising it had become aware the activity area identified in the approved CHMP did not include part of the subject land (being the smaller 3.6 ha lot of the proposed 26 ha subdivision)

25. Findings
VCAT found there was an approved CHMP for only part of the activity and that this had the same legal effect as there being no approved CHMP for the activity (ie the CHMP was required for the whole of the activity)
VCAT concluded time had not commenced for the purposes of the section 79 failure review and thus VCAT had no jurisdiction

26. Supported Stanley Pastoral
VCAT declined to distinguish Stanley Pastoral Pty Ltd v Indigo SC [2015] VCAT 36 and upheld the reasoning in that case
It supported the important distinction made in Stanley Pastoral between time not having begun to run for the prescribed period in a failure review and time having began to run but the prescribed period having not expired
Read [43]