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Home>About Council>General Information>>Coldstream Composting Facility Background Information and Latest Information
| Coldstream Composting Facility Background Information and Latest Information |  Printer Friendly |
| Order of the Victorian Civil and Administrative Tribunal (25 June 2009) | | On 8 November 2006 the Yarra Ranges Shire Council filed an application for enforcement order in the Victorian Civil and Administrative Tribunal seeking orders to abate odour emissions from the Coldstream Composting Facility located at 527-529 Maroondah Highway, Lilydale operated by Australian Native Landscapes Pty Ltd (ANL).
Further, on 19 April 2007 the Shire filed in the tribunal an application to cancel the planning permit for the Coldstream Composting Facility.
The Shire’s applications, together with:
. an application by ANL to review the failure of the EPA to issue a licence under the Environment Protection Act 1970;
. an application by ANL to amend the planning permit; and
. an application by ANL to challenge a Pollution Abatement Notice issued by the EPA (since withdrawn);
have been the subject of protracted proceedings since early 2007.
On 25 June 2009 the tribunal made an order granting the enforcement order sought by the Shire, together with orders with respect to the further conduct of the applications remaining before the tribunal. The full text of that order is set out below:
1 Permit cancellation request P966/2007 is adjourned to an administrative mention on 7 December 2009. The parties are not required to appear on that date, but are to advise, in writing, as to the then current situation in relation to that proceeding.
2 Planning permit amendment request P703/2009 is adjourned to 15 September 2009 when 2 days have been allocated for its further hearing subject to the following arrangements and directions:
a in the event that those dates are inconvenient to the representatives of the parties who have appeared in any of these cases to date they should advise the tribunal in writing to that affect by 31 July 2009 with copies to be sent to representatives of each other party who has appeared or been represented at the hearings to date with such communication to be specifically marked to be drawn severally to the attention of Member Ian Potts, Listings Coordinator Phillip Rosevear and Ms Tanya Fraser,
b if the responsible authority determines that it does not wish to be further heard in relation to the planning merits of the proposed amendments contained herein it is to advise the other parties and the tribunal in writing by 31 July 2009, such communication to be marked to the several attention of Member Ian Potts, Planning Coordinator Phillip Rosevear and Ms Tanya Fraser,
c in the event that the responsible authority does wish to be heard or further heard in relation to the said planning merits it is to provide to the tribunal, with copies to the said other parties a written statement setting out the grounds upon which it intends to rely at such hearing,
d if any party considers that the two days allocated would be insufficient they are to advise the tribunal and the other parties in like manner and by the like means as is specified in b and c above stating how long they consider would be necessary,
3 Application for review P318/2008 under the Environment Protection Act 1970 is adjourned to an administrative mention on 14 August 2009 subject to the following arrangements and directions:
a the Environment Protection Authority is to file with the tribunal and serve on the other parties as aforesaid by 14 August 2009 a suggested draft for orders to be made in connection with this proceeding having regard to what we have said in this document including the terms of a licence pursuant to s 20 (7) of the said Act and draft conditions in relation thereto,
b any such party, including the Environment Protection Authority, who considers that a further hearing is required in relation to the form of order and conditions is to notify the tribunal and each other such party to that effect in writing by 28 August 2009, such notification to be marked for the several attention of Member Ian Potts and Senior Member Russell Byard, which notification is to set out:
(i) amendments, alterations or deletions that such party considers appropriate,
(ii) the grounds for saying so and the grounds upon which it intends to rely at such hearing,
(iii) any such further hearing will be conducted at the same time as the hearing currently appointed to commence on 15 September 2009 (the date of which further hearing may need to be altered) unless we determine that no further hearing in relation to this proceeding is required.
4 In relation to enforcement order application P2788/2006, we find that there has been and is continuing a contravention of condition 14 of planning permit YR-2004/164 issued on 19 July 2004 and we order that, subject to any further order of this tribunal or the consent of the responsible authority the respondent company Australian Native Landscapes Pty Ltd must cease receiving green waste for composting on the land by four months from the date of this document and must process and remove from the land all green waste, composting material and composted material within 3 months thereafter.
5 Questions of costs are reserved.
Click on the link below for a full copy of the decision.
The reasons for the order expressly acknowledge that “there has been a continuing serious intermittent nuisance emanating from” ANL’s Coldstream Composting Facility.
The tribunal stated (at paragraph 27 of its reasons) that:
. There is a heavy countervailing consideration to the ongoing operation in its current form. That is the continued exposure of the residents and others in Lilydale and Coldstream to odour nuisance conditions. It is not their fault that they are exposed to such conditions, and they have been exposed now for a considerable time, and more than sufficient to make them sensitive to the conditions. These odour conditions are an unreasonable burden on their lives and their enjoyment of their properties for residential purposes.
In doing so, the tribunal reiterated its numerous previous observations to similar effect.
Paragraph 4 of the order (the enforcement order), nevertheless, does not require the immediate cessation of the “ongoing operation in its current form”.
The enforcement order requires that the receipt of green waste for composting at ANL’s Coldstream Composting Facility must cease by 25 October 2009 and that all processed, and unprocessed, material must be removed from those premises by 25 January 2010.
It should be noted, however, that the tribunal has listed ANL’s application to amend the planning permit for hearing on 15 & 16 September 2009, several weeks before ANL is required to cease receiving material for composting.
The enforcement order is expressed to be “subject to any further order of the tribunal or the consent of” the Shire. In the last paragraph of its reasons, the tribunal noted that it had (under section 121 of the Planning and Environment Act 1987) “power to amend or cancel an enforcement order.”
The Shire will continue to work with the EPA and other relevant parties to achieve a resolution to the continuing odour problem. If you wish to report incidents of the emission of odour from the facility, please contact:
· EPA’s Pollution Watchline on 9695 2777 or 1800 444 004; or
· The Shire on 1300 368 333
Links
A copy of each of the orders, including the tribunal’s reasons for each order, may be viewed by clicking on the link below.
VCAT Order 25 June 2009
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| Coldstream Composting Facility Background Information | | The Shire of Yarra Ranges is addressing community concerns about odours coming from the Coldstream composting facility at 527-529 Maroondah Highway, Lilydale.
The odour issues have affected residents for over two years. At their worst the odours have been detected up to six kilometres from the site. During 2007 the issue was the largest source of complaints in the State to the EPA’s pollution watch service.
The Shire has taken the lead role in resolving the odour problem, whilst working closely with the local community, the EPA, Sustainability Victoria, and the Metropolitan Waste Management Group.
The Shire resolved to apply to VCAT for an enforcement order in late 2006 following complaints from a large number or residents. In early 2007 a further application to cancel the planning permit was made.
The two applications were the subject of mediation hearings during 2007, which also involved the EPA. The EPA has also been the subject of an appeal in relation to a licence application. The EPA’s view is that a licence should not be issued.
While improvements have been made to the site, regular complaints are still received about odours by both the EPA and the Shire.
The Shire’s VCAT applications
In late 2006 and early 2007 the Council filed two applications at the Victorian Civil and Administrative Tribunal (VCAT) to resolve the odour problems at the site.
1. Enforcement order application (P2788/2006)
2. Application to cancel the planning permit (P966/2007)
These applications were the subject of a series of mediation hearings in 2007. During this same period the EPA issued a Pollution Abatement Notice which was also dealt with through the mediation process.
In April 2008 a hearing commenced at VCAT (the Victorian Civil and Administrative Tribunal in relation to the Shire’s two applications and a third matter relating to an EPA licence application. The EPA's position is that a licence should not be granted for the facility.
The hearing ran for 12 days in April, adjourned until August, and ran for a further 24 days, concluding on 10 October 2008.
The Shire’s case included tendering affidavits from hundreds of affected residents, and calling evidence from a number of community members, a Council compliance officer, and two eminent experts in the field of odour analysis. Expert evidence was also called by the EPA and the site operators.
The hearing concluded with submissions from the Shire, EPA, Metropolitan Waste Management Group, residents and the site operator.
To view copies of the final submissions made by each of the key parties click on the links below:
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| Q & A | | Q. Why was a planning permit granted?
A. Most people would agree that it is important that green waste material is not sent to landfill. Composting of green waste or vegetative materials for practical uses is a very important environmental activity.
The Coldstream composting facility was an initiative of a group of eastern suburbs councils, including Yarra Ranges, aimed at diverting the green waste away from landfill.
The planning permit application included information and modelling to demonstrate that the facility could operate without adverse impacts beyond the site. It is now clear that the modelling predictions submitted to Council and the EPA at the time the application was made grossly underestimated odour emissions from the facility.
The Council, in granting the planning permit, took the added measure of including in its conditions the requirement that no odour from the premises shall cause a nuisance to adjoining or nearby properties.
A range of other stringent conditions was also placed on the planning permit. In addition to the planning permit, the facility must also operate within the requirements of an EPA Works Approval.
Q. Is this type of operation allowed in a Green Wedge Zone?
A. Planning provisions for Green Wedge Zones allow for these types of uses to take place.
Q. Is the odour harmful?
A. According to information from the Department of Human Services while few studies have been undertaken on the health of residents living near to composting facilities, “where these studies have been done, there has been no evidence of an impact on public health.” (Department of Human Services)
Q. The Shire is distributing Odour Monitoring Sheets to concerned residents. What are these used for?
A. The Odour Monitoring Sheets, which are being used by affected residents to monitor any offensive odours over a two-week period, will assist the Shire in supporting any enforcement action. The Shire has already used a number of completed sheets as part of its enforcement proceeding in VCAT.
Q. What can I do as a concerned resident?
A. If you are concerned about any offensive odour from the composting facility you can report the odour to the EPA’s Pollution Watch Line on 1800 444 004.
You may also wish to obtain a copy of the Shire’s Odour Monitoring Sheet to fill out. As previously mentioned, the Shire will use the monitoring sheets as it undertakes enforcement action aimed at overcoming the problem of offensive odours.
To download a copy of the shire’s Odour Nuisance Monitoring Sheet click here.
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