This decision of the Victorian Civil and Administrative Tribunal (“VCAT”) concerned a green waste composting facility near Lilydale in Victoria. The facility was producing an odour which had become a nuisance to neighboring properties.

Two issues were considered;

• Was the EPA required to issue a licence for this facility? - and
• Had the facility complied with the requirements under its planning permit?

The Tribunal found that the facility had breached the requirements of its planning permit.

Australian Native Landscapes Pty Ltd (ANL) were the operators of a green waste composting facility near Lilydale in Victoria. A planning permit, as issued by the Yarra Ranges Shire Council existed for the development and use of the land for the green waste composting and transfer station operation.

The major issue with the green waste facility was the strong odours released from breakdown of green waste, affecting areas in northern Lilydale and Coldstream. Despite the composting facility operating in accordance with the EPA works approval for the site, the odours were severe and the Tribunal discussed their impact on the quality of life of surrounding residents.

Due to the pollution and nuisance issues, ANL had proposed changes to their operations to mitigate the odour. These included placing the stockpiles in enclosed sheds, minimising the turning over of the stockpiles and air filtering. These proposed changes to the existing works approval had been rejected by the EPA.

On the day of the hearing, the two main issues being considered by the Tribunal were:

1. can the EPA refuse to issue a licence where the operator of a scheduled premises is complying with it’s existing works approval; and
2. had the green waste composting facility planning permit conditions been breached ‘to the satisfaction of the responsible authority’.

The works approval was issued by the EPA in 2004 to the Eastern Regional Waste Management Group (ERWMG). The works approval was then transferred to ANL in September 2005, when construction of the green waste facility began.

The green waste facility works approval allowed for the collection of 120,000 tonnes of organic green waste per year. The material was placed in a series of uncovered windrows and was turned over intermittently to aid decomposition.

When the green waste composting began, an EPA works approval was the only requirement to operate the facility. This was because there was an exemption in the Environment Protection regulations for green waste composting. Overtime, the exemption was removed and an EPA licence was required for ongoing operation (once a licence is granted, it now replaces the works approval as the EPA regulatory mechanism over the facility).

Without a EPA licence ANL would not be able to operate the green waste facility.

The question put to the Tribunal regarding the issuing the works approval was whether section 20(7) of the Environment Protection Act 1970 (Vic) could allow the EPA to refuse a licence for works to continue, where ANL had met all the requirements set out in the works approval.

The ANL argued that as they had complied with the works approval in setting up the green waste operation, they must be provided with a licence to allow operations to occur. The EPA argued that issuing the licence was at their discretion.

The Tribunal decided that under section 20(7), it is mandatory for the EPA to issue a licence in the above situation, based on the Applicant’s compliance with the works approval and changes that had been made to it.

The planning permit for the site allowed for the development of a green waste composting facility in accordance with the conditions of the permit. Condition 14 of the permit stated explicitly that odour from the facility was not to cause nuisance to neighbouring properties, to the satisfaction of the responsible authority.

The Tribunal decided that the nuisance odour was so severe that there was no need to consider whether the condition had been breached ‘to the satisfaction of the responsible authority.’

The Tribunal decided that the green waste facility had breached Clause 14 of the Yarra Ranges SC planning permit.

ANL was to cease receiving green waste at the facility within 4 months and would then have 3 further months to remove all composted and composting material from the site.

• The full decision is available on Austlii

• Environment Protection Authority (Victoria)

• Victorian Civil and Administrative Tribunal (VCAT)

• For more information on planning law in Victoria see; Land use and planning in Victoria
• For more information on pollution control and licencing in Victoria see; Pollution control in Victoria