The Victorian Civil and Administrative Tribunal, VCAT, has refused to order a final hearing between the landowner of the former Kilmore East tip and the Environmental Protection Authority, EPA.
VCAT deputy president Teresa Biscucci presided over a preliminary hearing last month after the landowner Dorro Downs sought to substitute Mitchell Shire Council, former owner of the land, as the recipient of an amended environmental action notice, EAN, issued by the Environment Protection Authority, EPA.
The notice was addressed to the property owner to install an interim control to prevent leachate from discharging from the Wallders Road property into an unnamed nearby creek.
The EPA also ordered the land owner to engage a suitably qualified person to develop a leachate management plan and hydrogeological assessment to minimise the risk to human health and the environment; as well as report compliance updates to the authority.
Leachate is contaminated liquid generated from water percolating through a solid waste disposal site, accumulating contaminants and moving into subsurface areas.
Ms Biscucci said VCAT did not have jurisdiction to make the council the recipient of the notice instead of Dorro Downs.
She said the decision under review was whether the notice was correctly issued to Dorro Downs, not whether it was the right recipient.
“Arguably the tribunal does not embark on its own investigation to determine the correct recipient of a notice. Rather it relies upon the evidence before it to establish the fact,” she said.
“On the material before me at present, it does not follow that the tribunal cannot substitute the name of the recipient in this hearing.”
The property owner also sought three VCAT delcarations to make additional declarations that council be responsible for actions to satisfy the amended EAN and any other requirements under the Environmental Protection Act 2017 (Vic) relevant to the leachate.
“As presently drafted declarations two, three and four are hypothetical, that is, they are contingent on establishing that council caused or permitted the relevant circumstances to occur or is responsible for causing or contributing to the contamination of the land,” Ms Buscucci said.
Because Ms Buscucci found VCAT did not have the jurisdiction to substitute the council as the recipient of the amended EAN, she dismissed the hearing, which resulted in a refusal to order a final hearing of the complaint and struck out the developer’s claim.
Mitchell Shire Council chief executive Brett Luxford said as the matter was before the tribunal it would be ‘inappropriate for council to comment’.
