special council meeting - city of kingston · agenda 20 june 2012 notice is given that a special...

Special Council Meeting

Notice is given that a Special Meeting of the Kingston City Council will be held at 7.00pm at 1230 Nepean Highway, Cheltenham, on Wendesday 20 June 2012. 1 Apologies

2 Disclosure by Councillors, Officers or Contractors of any Conflict of Interest

3 Items of Business

City of Kingston Special Council Meeting

Agenda 20 June 2012

Notice is given that a Special Meeting of the Kingston City Council has been scheduled for 7.00pm at 1230 Nepean Highway Cheltenham on Wednesday 20 June 2012.

Business will be as follows:

1. Apologies

2. Disclosure by Councillors, Officers or Contractors of any Conflict of Interest

3. Items of Business

O 87 VCAT Decision – TPI Application for extension of time O 88 Motion to Consider Notices of Motion O 89 Notice of Motion No. 17/2012 – Cr Brownlees O 90 Notice of Motion No. 18/2012 – Cr Dundas O 91 Notice of Motion No. 19/2012 – Cr Staikos O 92 Confidential Item – Workplace Advice

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20 June 2012

Agenda Item No: O 87

COUNCIL RESPONSE TO VCAT DECISION ON FRASER ROAD LANDFILL Contact Officer: Rachel Hornsby

Purpose of Report

To obtain a decision from Council on a response to the VCAT decision to extend the planning permit for Fraser Road landfill to June 2017.

Disclosure of Officer / Contractor Direct or Indirect Interest

No Council officer/s and/or Contractor/s who have provided advice in relation to this report have declared a Conflict of Interest regarding the matter under consideration.

Recommendation

Officers recommend that Council:

1. Resolves to apply to the Supreme Court for leave to appeal the VCAT decision P1884/2011 and P1889/2011, and

2. Authorises the CEO (or his delegate) to progress action on the Section 87 application, including filing a new application to cancel/amend the permit; and

3. Authorises the CEO (or his delegate) to progress action for an increased focus on enforcement of existing Council planning permit conditions, and Council liaison and support for EPA to enforce EPA licences and notices, for landfills in the Kingston municipality.

1. Executive Summary

The original planning permit for the Fraser Road landfill was issued in 1993. Subsequently a new permit was issued in 1998 altering the hours of operation of the landfill (KP97/289). That permit was due to expire in early 2009. In December 2008, the Council received a one page written request from Transpacific Industries (Transpacific) for an extension of time to the permit (seeking 10 year extension). In May 2011 the Council resolved to refuse the request for an extension of time. In May 2012 the VCAT heard the application. Russell Kennedy represented the Council at that hearing. On 25 May 2012 the VCAT made an order setting the Council’s decision aside and extended planning permit KP97/289/A to 30 June 2017. The decision was not served on the parties until 6 June 2012. In their reasons for the decision Deputy President Gibson and Member Potts rely on the expert evidence lead by Transpacific and the EPA’s support for the continued operation of the landfill. The published VCAT decision states VCAT was satisfied that the EPA had vigorously addressed odour issues and that it was working with Transpacific to manage the landfills operations.

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The Council has 28 days from the day after the order is made to make an application for leave to appeal to the Trial Division of the Supreme Court of Victoria. The deadline to make an application for leave to appeal is 4pm on Friday, 22 June 2012. If Council is granted leave to appeal, a date for a Supreme Court hearing is likely to be set down for early 2013. In the meantime, Transpacific will be able to keep operating under the existing permit. An appeal to the Supreme Court comes with significant costs. Overall the financial costs to Council of an appeal and (any subsequent VCAT hearing) is likely to be between $150,000 and $280,000. While the financial cost is significant, an appeal to the Supreme Court would reinforce to landfill operators and the community that the Council’s resolve to ensure that landfill sites in Kingston do not continue to cause a negative impact on residents. Another option is to pursue a Section 87 application to have the permit cancelled or amended to update the conditions. A VCAT hearing on a Section 87 application is likely to include legal and expert costs of approximately $50,000. This approach would reflect Council’s commitment to this landfill operator complying with best practice management practices. Updated conditions would also re-enforce that the primary legislative responsibility for the regulation of odour is the responsibility of the EPA. It would enable the Council to ensure the planning permit conditions focus on the amenity issues it has control over like landscaping, litter, final contour levels and hours of operation. The Council has been undertaking ongoing monitoring and compliance activities for the Fraser Road landfill. Now a decision has been made by the VCAT, the Council may wish to increase the focus on enforcement of the existing planning permit, in particular to address the significant impact of odour on the community since late 2010. Enforcement action at VCAT and/or the Magistrates Court would likely take between 12 months and two years. The costs associated with an enforcement hearing would likely be approximately $30,000. However, the Council may achieve some good compliance outcomes without the matter having to proceed to a full hearing. In that case, the costs would be less, and the benefit would be an increasingly compliant landfill operation. It would also provide a clear indication to the community and landfill operators that Council can and does follow through on the amenity issues within its control. In conjunction with an appeal to the Supreme Court, there would also be benefit in pursuing Transpacific’s existing Section 87 application or filling a new application, which also increases the focus on compliance and enforcement of the existing conditions. It is recommended that the Council decide to apply for leave to appeal to the Supreme Court and to authorise the CEO (or his delegate) to progress action on the Section 87 application and a focus on enforcement of landfills in the Kingston municipality.

2. Background

The original planning permit for the Fraser Road landfill was issued in 1993. A new planning permit was issued at the direction of the Administrative Appeals Tribunal in 1998 (predecessor to the VCAT) extending the operation hours of the landfill. That permit was due to expire in 2008 with the period in which an application may be made to extend the permit expiring in early 2009. In December 2008, the Council received a one page written request from Transpacific for an extension of time to the permit. In May 2011 the Council resolved to refuse the request for an extension of time. Transpacific then sought a merits review of that decision in the VCAT. Russell Kennedy appeared on behalf of the Council at the mediation and hearing of those proceeding.

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In December 2011 Transpacific Industries filed a further application to the VCAT seeking to amend the permit to allow the continued operation of the landfill until 2018 (ten year extension from date of initial request) and to update conditions. The application to amend conditions is known as a Section 87 application. In May 2012 the VCAT heard the application for an extension of time to the permit. Russell Kennedy represented the Council at that hearing. The key issues in dispute are discussed below. Council’s position was that the extension of time for the permit related to the whole of the landfill, not just the remaining cells. As the filled parts of the landfill do not meet current environmental standards and the whole of the landfill had caused the contamination of regional groundwater, the subsurface migration of landfill gas and the emission of odour impacting on the community the Council argued that there should not be an extension of time to the permit. Council also noted that the development and use was in contravention of the endorsed plans by excavating a further 25m of depth from the base of the former extractive industry floor. Since 2003, when the Council endorsed the plans under the permit, the EPA has approved a series of new landfill cells that do not comply with the endorsed plans and permit. . It is estimated that the available airspace since 2003 has gone from approximate 1.449 million m3 to over 4 million m3 and, as such, further time is required to fill the hole Transpacific argued that the application for the extension of time applied only to the three landfill cells that were not yet finished. They conceded that the existing cells would not be granted a permit if an application was made under today’s requirements. Transpacific denied that it had undertaken excavation for the purpose of creating extra airspace. They confirmed that they were seeking an extension of time to 30 June 2017. At the hearing the EPA submitted that they wanted landfilling to continue until February 2017. They also submitted that they are the lead agency for the regulation of all aspects of a landfill. In particular landfill gas and odour and leachate. During cross-examination the EPA’s in-house landfill expert also gave evidence that EPA is the lead agency for the compliance and enforcement of all aspects of the landfills operation. On 25 May 2012 the VCAT made an order setting the Council’s decision aside and extending planning permit KP97/289/A to 30 June 2017. The decision was not served on the parties until 6 June 2012. In the reasons for the decision Deputy President Gibson and Member Potts rely on the expert evidence lead by Transpacific and the EPA’s support for the continued operation of the landfill despite the known impact of leachate contamination on the groundwater and the migration of landfill gas and the history of odour problems. The Council’s interpretation of the endorsed plans and the accompanying letter from Pioneer (the former owners and operators) was rejected. In relation to the concerns raised relating to the impacts of the landfill on the environment, the published VCAT decision states VCAT was satisfied that the EPA had vigorously addressed odour issues and that it was working with Transpacific to manage the landfills operations. The VCAT sets out its reasons at paragraph 93 of the decision (Appendix 1):

“The EPA is the lead agency for the detailed management of the landfill. This is by way of its licensing and approval functions under the EP Act and by way of condition 52 of the permit. To us it would seem that of recent times the EPA has discharged its duties appropriately and is working in conjunction with TWM to bring this site to final closure in the most expeditious and appropriate manner.”

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The Council has 28 days from the day after the order is made to make an application for leave to appeal to the Trial Division of the Supreme Court of Victoria. The deadline to make an application for leave to appeal is 4pm on Friday, 22 June 2012. There has been no indication from Transpacific on whether it will continue to pursue its Section 87 application (to amend the conditions of the permit) now that an extension of time has been granted.

3. Discussion – Issues and Options

3.1. Response to VCAT decision

The Council has a very small window of time to decide whether it wants to apply for leave to appeal to the Supreme Court. Any appeal must be based on errors of law. If Council applies for leave to appeal to the Supreme Court we will either be granted leave to appeal (in which case the matter will be listed for hearing) or we will be refused leave to appeal (which means Council can not proceed with the appeal). If Council is granted leave to appeal, a date for a Supreme Court hearing is likely to be set down in early 2013. In the meantime, Transpacific will be able to keep operating under the existing permit. An appeal to the Supreme Court comes with significant costs. Council’s legal and expert costs are likely to be in the order of $150 000. If Council wins the case it could have some costs awarded to it (maybe $50 000 to $80 000). The case would then be sent back to VCAT for a substantive decision, having had the point of law clarified by the Supreme Court. Costs in VCAT would be in the order of $80 000 and there would be no opportunity to recover costs through that process. If Council was granted leave to appeal and lost the appeal in the Supreme Court, it could have costs awarded against it. Those costs could be in the order of $80 000 to $130 000). Overall the financial costs to Council of an appeal and (any subsequent VCAT hearing) is likely to be between $150 000 and $280 000. The total process is likely to take between 12 months and three years. There is also the potential that the VCAT would require any Section 87 application or enforcement action (see points below) to be placed on hold until the Supreme Court hearing and following VCAT hearing is completed. While the financial cost is significant, an appeal to the Supreme Court would reinforce to landfill operators and the community that the Council is resolved to ensure that landfill sites in Kingston do not continue to cause a negative impact on residents.

3.2. Section 87 application There has been no indication from Transpacific on whether or not it will continue to pursue its Section 87 application (to amend the conditions of the permit) now that an extension of time has been granted. If Transpacific withdraws their Section 87 application, the Council could lodge a Section 87 application to seek a review of the existing conditions of the planning permit. Reviewing the conditions will provide an opportunity to ensure the conditions reflect current best practice management requirements.

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A VCAT hearing on a Section 87 application (either lodged by Transpacific or the Council) is likely to include legal costs of approximately $50 000. Pursuing a Section 87 application would reflect Council’s commitment to this landfill operator complying with best practice management of landfills. Updated conditions would also further reinforce that the primary legislative responsibility for the regulation of odour lies with the EPA. Council would focus on the amenity issues it has control over like landscaping, final land contours, litter, and hours of operation.

3.3. Enforcement of the existing planning permit

The Council has been undertaking ongoing monitoring and compliance activities for the Fraser Road landfill. At the same time there has been a focus on preparing for the VCAT hearing to support Council’s decision to refuse an extension of time to the planning permit. Now a decision has been made by the VCAT, the Council may wish to increase the focus on enforcement of the existing planning permit. If enforcement proceedings were found to be warranted, enforcement action at VCAT and/or the Magistrates Court would likely take between 12 months and two years. The costs associated with an enforcement hearing would likely be approximately $50,000. However, the Council may achieve some good compliance outcomes without the matter having to proceed to a full hearing. In that case, the costs would be less, and the benefit would be an increasingly compliant landfill operation. It would also provide a clear indication to the community and landfill operators that, even though the Council is not the lead agency in relation to the operation of landfills it can and does follow through on the amenity issues within its control.

4. Conclusion

There is a very limited window of opportunity for the Council to apply for leave to appeal to the Supreme Court. While an appeal to the Supreme Court would be costly, there would be benefit to the Council in applying for leave to appeal. In conjunction with this, there would also be benefit in pursuing the Section 87 application to update the permit conditions and also increasing the focus on compliance and enforcement of the existing conditions. It is recommended that the Council decide to apply for leave to appeal to the Supreme Court and authorise the CEO (or his delegate) to progress action on the Section 87 application and a focus on enforcement of landfills in the Kingston municipality. 4.1. Environmental Implications

The significant environmental issues associated with landfills (odour, dust, and leachate) are controlled by the EPA through their licensing and works approval process. Whichever course of action the Council decides to take, those responsibilities will remain with the EPA. Council can continue to support and liaise with the EPA on the environmental implications.

4.2. Social Implications

The impact on Kingston residents from landfill operations has been acknowledged by the Council. All courses of action proposed through this report seek to minimise or prevent those negative impacts.

4.3. Resource Implications

There are significant costs associated with an appeal to the Supreme Court. There are also costs associated with a Section 87 application and undertaking enforcement action. The costs are in legal and expert witnesses and also in staff time. However these costs can be viewed as an investment in actions directed to achieving improved community outcomes.

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4.4. Legal / Risk Implications If Council does not make a decision on whether or not to apply for leave to appeal it will miss the opportunity to do so and he existing permit will remain unchanged allowing the landfill to continue operation until 30 June 2017.

5. Appendices

5.1. Appendix 1 – VCAT decision on Fraser Road Landfill extension of permit (12/61355)

5.2. Appendix 2 – Confidential legal advice

Author/s: Rachel Hornsby General Manager Environmental Sustainability

Reviewed and Approved By: John Nevins, Chief Executive Officer


20 June 2012


NOTICE OF MOTION NO. 17/2012 – CR BROWNLEES I move: That the decision related to Item 74 adopted at the Council Meeting of 28 May 2012, Contract 12/23 Carrum Life Saving Club and Coastal Resource Centre Building Project Tender Acceptance – Part 3, be rescinded and listed for discussion at the next Ordinary Council Meeting scheduled for Monday 25th June 2012. Cr Ron Brownlees


20 June 2012


NOTICE OF MOTION NO. 18/2012 – CR DUNDAS I move: That the decision related to item 074 adopted at Council meeting of 28 May 2012 Contract 12/23 Carrum Life Saving Club and Coastal Resort Centre Building Project Tender Acceptance- Part 1 and 2 be rescinded, and listed for further discussion at the next Ordinary Council Meeting scheduled for Monday 25th June 2012. For Further Discussion Allocated of Tender $1,613,240 Additional Heating and Cooling $101 ,730 Contingency Allowance $25,000 Total Project Allowance $1,739,970 Additional allowance for associated cafe (no castings provided to present - report by officers) Tabling of proposed or executed Lease Documents. Tabling of maintenance responsibilities agreed between Kingston Council and Carrum Life Saving Club especially with regard to lift and air conditioning maintenance. - short, medium, long term responsibilities, and capital replacement responsibilities. Tabling of Carrum Life Saving Club certified current membership. Tabling of Project Drawings, as tendered. Consideration by Council for a standard agreement between Council and Council Lessees with regard to capital and maintenance financial responsibilities. Incorporation of public use change rooms and associated facilities in balance with LSC usage and public usage. Cr Lewis Dundas


20 June 2012


NOTICE OF MOTION NO. 19/2012 – CR STAIKOS I move that Council: Authorise ward funds expenditure for councillors West and Shewan’s Ward Meetings that took place in February 2012 to a maximum of $2,000 per Councillor. Any additional costs in excess of $2,000 are to be covered by the individual Councillor in question. Cr Steve Staikos