Ravenhall Landfill decision confirms the scope of VCAT’s powers to review EPA approvals

In June this year, VCAT made the decision to approve a Works Approval to allow for the expansion of the Ravenhall Landfill, the largest landfill in Victoria in the decision of Melton CC v Landfill Operations Pty Ltd (Red Dot) [2019] VCAT 882. Originally approved by the EPA in 2016, the Works Approval was appealed to the Tribunal under section 33B of the Environment Protection Act 1970 (EP Act) by five objector parties, including the Melton and Brimbank City Councils.

In coming to its decision to approve the Works Approval, the Tribunal considered the scope of third party reviews of environmental approvals. It confirmed that when an appeal comes before the Tribunal under the EP Act, the Tribunal has the same powers as the EPA had when it originally considered the Works Approval, as there is nothing in the legislation which suggests that the Tribunal’s scope for review is any different from other merits reviews in which the Tribunal “stands in the shoes” of the original decision maker.

The current EP Act is soon to be replaced by a new environment protection regime under the Environment Protection Act 2017 and third party grounds to appeal decisions of the EPA will differ under the new regime. The Ravenhall Landfill decision is nevertheless important because the principles relating to the scope of the Tribunal’s power will still be relevant under the new regime.

Proponents of projects requiring environmental approval should note that while third parties only have limited grounds on which they can lodge an appeal, once the matter goes in front of the Tribunal it will have the power to conduct a full merits review of the EPA’s decision, and the same power that the EPA had when determining whether or not to approve it or issue new or amended conditions.

Below we discuss the key takeaways of the Ravenhall Landfill decision.

Background

The Ravenhall landfill is the largest landfill of its type in Victoria, receiving approximately 11 million tonnes of waste each year and predicted to increase to 16.5 million tonnes per year by 2041/42.[1] A Works Approval for an additional 7 cells to the expand the landfill was issued by the EPA in late 2016 in parallel with a Planning Panel Hearing which resulted in the issue of a planning permit by the Minister for Planning in 2017.

Five applications to the Tribunal for review of the EPA’s decision to issue to the Works Approval were made under section 33B(1) of the EP Act, raising various objections relating to odour, landfill gas, litter and other wastes, buffer distances and non-compliance with waste management policies. Ultimately the Tribunal made the decision that a Works Approval should be issued for the landfill, but on amended additional conditions. In coming to its decision, the Tribunal made important findings in relation to the scope and nature of the power of the Tribunal to review decisions of the EPA under the environment protection regime.

Third party reviews under environment protection law

Section 33B(1) provides that “a person whose interests are affected” may apply to the Tribunal for review of a decision to issue a Works Approval.[2]

An appeal can only be lodged by a third party on the grounds that if the works in question are completed and used in accordance with the Works Approval (and subsequent licence) as issued, the use of the works will result in a discharge emission or deposit of waste which will either:

• unreasonably and adversely affect the interests of the third party; or
• be inconsistent with policy.[3]

The rights of review for third parties under the environment protection legislation are therefore more limited than under the planning legislation where any merits ground can be raised in the Application for Review of a Responsible Authority decision.

Scope of the Tribunal’s powers

Due to the limited nature of the grounds on which a third party can lodge an appeal of an approval under the EP Act, the EPA argued that the Tribunal did not have the power to undertake a full merits review of the proposal subject of the Works Approval and that it was limited to a finding of whether the grounds by the objector under s33B of the EP Act were made out or not, and that if they were not made out the Tribunal is required to issue the Works Approval on the grounds issued by the EPA. That is, the EPA argued there is no middle ground by which the Tribunal can decide to issue the Works Approval on different grounds to that which the EPA issued it on before the appeal.[4]

The Tribunal disagreed with the EPA’s position, confirming that while objectors only have limited grounds upon which they can lodge an appeal, the Tribunal’s scope is not limited in this way as it must stand in the shoes of the decision maker and make the correct or preferable decision on the material before it, as is the case in planning and other merits reviews before the Tribunal under the Victorian Civil and Administrative Act 1998 (the VCAT Act). The Tribunal found that it can decide to issue a varied Works Approval by including other conditions that the EPA had originally included. In coming to this conclusion the Tribunal referred to section 37(a) of the EP Act and noted that these powers are very broad and contain no restrictions that specifically apply to applications for review by third parties

The Tribunal also referred to section 51 of the VCAT Act which provides that when reviewing a decision, the Tribunal “has all the functions of the decision-maker…” and sets outs the various decisions that the Tribunal can make. Accordingly, while objectors only have the right to lodge an appeal on the limited grounds under section 33B, the Tribunal, when reviewing the decision, is not limited by the grounds before it. Those grounds do no more than frame the grounds of an applicant, they do not frame the basis of the decision that the Tribunal must make under s20C(2) or (3) standing in the shoes of the EPA.

Instead, it is open to exercise any of the functions of the original decision-maker as set out in section 51, including to direct that a Works Approval be issued with new or amended conditions. When it made its decision as the original decision maker, the EPA was obliged to take into account the matters listed under section 20C of the EP Act. Under section 20C of the EP Act, the EPA must refuse a Works Approval which would be inconsistent with the relevant policy or if it is likely to cause an environmental hazard and endanger human health.

The Supreme Court had previously commented (in obiter) in Thirteenth Beach Coast Watch Inc v The Environment Protection Authority [2009] VSC 53 that section 20C of the EP Act had “little or no application to the Tribunal in s 33B applications for review” as the scope of the Tribunal’s review is constrained by the grounds of appeal.

However, the Tribunal found that this aspect of the Thirteenth Beach case should be distinguished and that the Tribunal, in standing in the shoes of the EPA in an application for review, is also obliged to exercised its functions under section 20C of the EP Act. This means that the Tribunal (like the EPA) must ensure that it only issues Works Approvals consistent with the relevant applicable policies and must refuse Works Approvals that would be inconsistent. Accordingly, when an application is lodged under s 33B, the Tribunal will consider all the relevant factors before it and make a decision consistent with its powers under section 20C, not just the matters raised by the objector grounds. This can include directing a Works Approval to be issued with new or amended conditions required to ensure that the proposal is consistent with the relevant policies and the grounds of review are not made out.

Ultimately, this is what the Tribunal concluded, that the grounds of review were not made out and that a Works Approval was directed to issue but on amended conditions so as to ensure there will not be any inconsistency with applicable policy or any adverse effect on the interests of the parties. These new conditions largely related to odour management, requirements to ensure daily cover of the tipping face and a new requirement for a litter management plan as well as modifications to conditions relating to groundwater, landfill gas and surface drainage.

One of the objector parties, Mount Atkinson Holdings Pty Ltd, has filed an appeal of the Tribunal’s decision at the Supreme Court so we expect to see some further judicial commentary on the scope of the Tribunal’s power to review EPA approvals once the Supreme Court hands down its decision. Gadens will continue to monitor the appeal and report on any updates to proceeding.

The regime is changing, so does this decision matter?

The environment protection regime is undergoing significant change as a new regime is set to commence under the Environment Protection Act 2017 (the New EP Act) on 1 July 2020 and new regulations and guidelines are imminent.

Under the new regime, development licences will replace the current Works Approvals and third parties whose “interests are affected by the decision” may apply for review of a decision to issue a development licence under section 434 of the New EP Act.

The grounds on which third parties can apply for review are still limited under the New EP Act but have changed from the existing regime, and include the following under section 434(3):

1. the decision unreasonably and adversely affects the financial, physical or personal interests of the applicant;
2. the licence to which the decision relates authorises a licence activity that, if conducted in accordance with the licence, would lead to a contravention of the general environmental duty; the licence authorises a licence activity that, if conduct in accordance with the licence, would pose an unacceptable risk of harm to human health or the environment;
3. any condition of the licence that specifies how a person is to comply with the general environmental duty when engaging in a licence activity is not sufficient to minimise the risks of harm to human health or the environment from pollution or waste to which the condition relates, so far as reasonably practicable.

Arguably, the grounds for appeal under the New EP Act are broader than that of the current regime, through the introduction of the consideration of risk of harm to human health or the environment. Nevertheless, the grounds will still be limited. Additionally, similar to section 20C of the current EP Act, section 69 of the New EP Act sets out matters which the EPA must consider when determining whether to issue a development licence.

While the rights of third parties to apply for review of an EPA decision to issue a development licence will still be limited under the New EP Act, applying the Ravenhall decision, the Tribunal’s merits review of any proposal will not be limited by the third party grounds of review as the Tribunal must exercise the functions of the EPA, as original decision maker, taking into account the relevant factors under section 69 of the New EP Act.

[1] Melton CC v Landfill Operations Pty Ltd (Red Dot) [2019] VCAT 882 [24]

[2] Section 33B also allows for third party reviews of a decision to:

– issue a licence on an application to which section 20(8) applies; or

– amend a licence on an application to which section 20A(6) applies; or

– remove the suspension of a licence.

[3] Section 33B(2).

[4] Melton CC v Landfill Operations Pty Ltd (Red Dot) [2019] VCAT 882 [590]

Authored by:

Meg Lee, Partner

Zina Teoh, Associate