C & D Recycling occupies the land where it operates a material recycling business. It was issued a permit in 2016 and since then, a large surplus of waste material was brought to the site with little, if any, being processed. The materials have since accumulated, resulting in the stockpile.
It is believed that there is some contaminated material at the site although no comprehensive survey has been undertaken to determine the content and characteristics of the materials on-site.
The City of Geelong sought both cancellation and enforcement of C & D Recycling's permit and in hearing the case, the Victorian Civil and Administrative Tribunal acknowledged that "there has been a comprehensive non-compliance with permit conditions."
VCAT also noted that "the site is an eyesore and a fire risk, with no easy solution as to how large the stockpiles of waste can now be reduced or removed."
Two separate proceedings were initially held, and the CFA and EPA were active participants in them. However, VCAT considered that it could not finally determine the cancellation proceeding in isolation from the enforcement proceeding. This was particularly the case because the consequences of cancellation of the permit would necessitate the remediation of the site, with disposal of material to landfill, and which could cost up to $100 million.
While VCAT admitted that it had no no confidence in the current occupier ever complying with conditions of the permit, it said the outcome proposed by the Council was "well beyond the means of the occupier, and therefore unlikely to occur, with the remediation costs of a legacy site having to be potentially borne by the public purse."
"It also leads to a poor environmental outcome if all of the material is disposed of to landfill, when much of the material in the stockpiles is still capable of being recycled or processed. Importantly, cancellation of the permit does not actually resolve the current fire safety issues on the site," the tribunal said.
Owner of the land, TASCO, also contested in the proceeding that cancellation of the permit would limit its options to mitigate its potential liability if the current non-complying occupier vacated the site. Its evidence was that a staged enforcement process that facilitated an ongoing materials recycling business would cost significantly less (approximately $45 million), and lead to a better longer-term outcome. This however requires some confidence that TASCO will take an active role in the enforcement process and/or find a new operator for the business, and that the Council will cooperate in this outcome. It also requires some confidence that the relevant parties will take active steps to deal with fire safety issues before the next summer fire season.
At the end of May, VCAT, in considering all these factors, decided that the land on which C & D Recycling was occupying and running its material recycling business was still an appropriate site for its operations.
It considered a staged enforcement process to be the "least worse" option and endorsed the process which involves a sampling program to determine the content and characteristics of the existing stockpile, and the preparation and implementation of fire safety, rehabilitation and development management plans.