Dorro Downs has unsuccessfully appealed to transfer an Environment Protection Agency, EPA, notice to Mitchell Shire Council.
The company sought a review from the Victorian Civil and Administrative Tribunal, VCAT, for an amended environmental action notice regarding land at Wallders Road, Kilmore, which operated as an ‘unlined gully’ landfill until 2005.
Rehabilitation works were completed at the property in July 2007.
The EPA issued a notice in March requiring Dorro Downs to minimise the risk to human health and the environment from leachate generated at the property and provide a report specifying it had complied.
The notice was amended to include details described by EPA as a guide to meeting requirements in the original notice.
The hearing took place July 4, 5 and 6, and October 24 and 25 before senior tribunal member Geoffery Cole and member Peter Cole.
The tribunal members said the amended ‘support to comply’ provisions did not relate to the requirements they intended to vary and to retain them would be confusing deleting the provisions from the notice.
The members disagreed with Dorro Downs’ submission to make Mitchell Shire Council the notice recipient, noting it would be unlawful and out of their jurisdiction.
“We agree with the [EPA] that the proper question for the tribunal to ensure it is acting within jurisdiction is not to ask ‘should the notice be issued to the council’ but to ask ‘should the notice be issued to Dorro Downs’”, they said.
“Even if we are wrong about the lawfulness of changing the recipient of the amended notice to the council, there is insufficient merit in doing so.
“To vary the amended notice so the recipient is the council would require us to find the council caused or permitted the relevant circumstances and was the occupier of the land at the time the relevant circumstances first came into being.
“The tribunal could not and would not make that finding and make orders binding on a person who was not a party to the proceeding. We would be acting contrary to the rules of natural justice, and therefore making an error of law if we were to do so.
“Dorro is managing or controlling the site as the owner or occupier of the site and therefore Dorro has the duty to minimise the relevant risks of harm.”
Dorro Downs also claimed the EPA made material failures in relation to the site and in its decision to issue the amended notice, acting inconsistently with other closed landfills.
The tribunal members said the claims were outside of their authority.
“Put simply, the tribunal does not have the authority to review the authority’s past conduct in some sort of commission of inquiry,” they said.
The amended notice remains applicable to Dorro Downs however the tribunal altered conditions for less stringent reporting requirement than those originally imposed by EPA.