This alert is relevant to licence holders declaring Annual Performance Statements.
What has happened?
EPA Victoria provided its contemporary interpretation of the required standard of prohibiting offensive odours beyond the boundary of a licenced premises to the Victorian Civil and Administrative Tribunal (VCAT) in proceedings hearing the proposed expansion of the Melbourne Regional Landfill.
Since the early 1980s when the EPA took over licencing responsibility from the delegated agencies under the Environment Protection Act 1970, a standard condition imposed in licences, has been the requirement to prevent the discharge of offensive odours beyond the boundary of the premises. This requirement has remained unchanged despite recent changes to the standard licence conditions.
The legislation, including the Environment Protection Amendment Act 2018 does not define ‘offensive odour’.
The statutory defence that a licence holder is not liable for any penalty where an offensive odour is discharged beyond the boundary, unless the offensive odour is observed in a residential area or public open space adjacent to a residential area and the licence holder complies with the licence, informs the interpretation of the condition. The statutory defence sits awkwardly with condition LI_A1, which appears to apply the standard at and beyond the premises boundary.
Over 5 weeks in July, August and September 2018, the VCAT considered the merits of granting a works approval for the expansion of the Melbourne Regional Landfill, Victoria’s largest landfill. The proceeding consisted of multiple third-party applications for review and heard evidence from 5 independent experts addressing odour emissions from the existing landfill.
In its reply submission the EPA Victoria provided a clear, unambiguous, contemporary statement of its interpretation and application of the requirement for no offensive odour beyond the boundary of the premises. The authoritative statement was measured and considered.
EPA Victoria submitted that the required standard of no offensive odour beyond the boundary of the premises must be construed having regard to the intensity and frequency of odours detected in a residential area or public open space adjacent to a residential area, where the residential area is identified by the underlying land zoning within the Victorian Planning Provisions.
A residential use within a non-residential zone is not considered relevant.
In the proceedings, EPA Victoria submitted the prison population of the remand facilities (including the Dame Phyllis Frost Facility located within the Special Use Zone) was not a ‘residential area’ for the purposes of the licence condition.
In the proceedings
EPA Victoria rejected plume dispersion modelling, instead relying on odour survey data compiled by trained personnel. Analysis of that data compiled over a 4 month period identified 19 instances of odour detected in a residential area with the likely source identified as the existing landfill. The residential areas for the purpose of the survey were located 3km or greater from the existing landfill.
EPA Victoria analysed the data and submitted to the Tribunal that 19 instances over a 4 month period of detectable odour of a landfill characteristic in residential areas 3km or greater from the licenced source was not odour of an intensity or frequency that the EPA in its view considered to be an ‘offensive odour’.
This submission must inform EPA Victoria’s future regulation of all industry, not just the Melbourne Regional Landfill.
What this means
Unfortunately, EPA Victoria’s contemporary interpretation provides no assistance to licence holders that have previously been subject to enforcement proceedings and sanctions for offensive odour beyond the boundary of the premises, either detected in a non-residential zone or at lesser frequency and intensity.
The Tribunal has reserved its decision. It will be interesting to observe if the Tribunal agrees with the EPA’s analysis of the evidence and construction of the legislation.
EPA Victoria’s contemporaneous interpretation is relevant to licence holders declaring their annual performance statements assessing compliance with condition L1_A1.
If you require any further information, please contact Stefan Fiedler on (03) 9609 1672 / 0437 734 742 or by email sfiedler@rk.com.au or Claire Alexander on (03) 8640 2321 or by email calexander@rk.com.au.
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