VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P236/2020

APPLICANT	Zero Waste Victoria Inc.	
relevant authority	Environment Protection Authority	
RESPONDENT	Recovered Energy Australia Pty Ltd	
joined party	Metropolitan Waste Resource Recovery Group	
SUBJECT LAND	28 Alex Fraser Drive
LAVERTON NORTH  VIC  3026	
WHERE HELD	Melbourne	
BEFORE	Teresa Bisucci, Deputy President 	
HEARING TYPE	Practice Day Hearing by Telephone	
DATE OF HEARING	29 May 2020	
DATE OF ORDER	4 June 2020	
citation	Zero Waste Victoria Inc v EPA [2020] VCAT 602	

Order
Parties to proceeding
1	Pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998, Metropolitan Waste Resource Recovery Group is joined as a party to the proceeding.  
Statement of Grounds
2	By no later than 11 June 2020, Metropolitan Waste Resource Recovery Group must file with the Tribunal and serve on all parties a statement of grounds it intends to rely upon at the hearing.

Teresa Bisucci 
Deputy President 			

APPEARANCES:		
For Zero Waste Victoria Inc	Mr Robert Forrester of Counsel instructed by Ms Virginia Trescowthick, Lawyer of Environmental Justice Victoria	
For Environment Protection Authority	Ms Sarah Bennett, Lawyer 	
For Recovered Energy Australia Pty Ltd

For Metropolitan Waste and Resource Recovery Group	Ms Eliza De Wit, Lawyer, of Norton Rose Fulbright

Dr Joseph Monaghan, Lawyer, of Holding Redlich 	

reasons
background
1	This application was listed for a practice day hearing to determine:
•	whether Metropolitan Waste and Resource Recovery Group (MWRRG) should participate in the proceeding; and 
•	if so, how should it participate?
2	MWRRG submits that it should be allowed to participate for the following reasons:
i	It is a statutory body established under section 49 of the Environment Protection Act 1970 (EP Act) that is responsible for coordinating and facilitating the delivery of waste management, resource recovery and infrastructure needs;
ii	It has prepared the Metropolitan Waste and Resource Recovery Implementation Plan (Implementation Plan); and
iii	The application for review and further and better particulars relied upon by the applicant raise issues of the waste hierarchy and inconsistency with waste policy.
3	MWRRG says that for the above reasons its interests are affected by the application and should participate as a ‘non-party’.
4	No other party opposes the participation of MWRRG as a ‘non-party’.  The power relied upon by all parties to allow such participation is said to be pursuant to section 98 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).  This section provides:
98	General procedure
(1) 	The Tribunal—
(a) 	is bound by the rules of natural justice;
(b)	is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) 	may inform itself on any matter as it sees fit;
(d) 	must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2) 	….
5	Some examples of where the Tribunal has used section 98 of the VCAT Act to hear from non-parties were cited.  I do not doubt that section 98 of the VCAT Act provides the ability to hear persons in the manner proposed that is, by the filing of submissions.  However, the central issue is whether that approach is appropriate, in this case.  
6	When asked by me what advantage or disadvantage there is to MWRRG by participating as a non-party, the following disadvantages were listed:
i	Inability to participate in the compulsory conference;
ii	Inability to file evidence without leave of the Tribunal; and
iii	Inability to cross-examine witnesses without leave of the Tribunal.
7	It is said that MWRRG simply seeks to file submissions for the final hearing to assist the Tribunal.
8	Both the applicant and the respondent opposed the joinder of MWRRG as a party.  The respondent submitted that joinder of MWRRG created rights that were unwarranted given the nature of the participation sought. Further, it says that the joinder of MWRRG as a party allowed it to attend the compulsory conference where the issues to be discussed would principally be technical in nature rather, than policy related.  MWRRG advised that it did not intend to attend the compulsory conference.
9	The applicant suggested that if I was to join MWRRG, that I could prepare a self-executing order such that the joinder not take effect until after the compulsory conference.
DETERMINATION
10	In matters where all parties agree to a proposed course it is sometimes easier to accept the position agreed by all parties.  However, in this case that would not be the appropriate outcome.
11	MWRRG makes a compelling case with respect to its interests and it has persuaded me that its interests are affected by this proceeding.  In particular, MWRRG is a statutory body with wide responsibilities including the preparation of the Implementation Plan.  The Tribunal will be assisted by MWRRG at any final hearing given the issues raised by the applicant.
12	However, I am not persuaded that participation by MWRRG should be limited to that of a non-party.  Given that the waste hierarchy is central to the matters raised in the documents filed in this proceeding, I consider it necessary to join MWRRG as a party, and to provide to it all the rights that attach to a party in a proceeding before the Tribunal.  The joinder of MWRRG as a party was raised in Western Region Environment Centre Inc v EPA.  Dwyer DP considered that the interests of MWRRG were affected sufficiently to join it as a party.  I accept that Dwyer DP did not need to resolve whether MWRRG should participate as a non-party rather than be joined as a party.
13	If MWRRG chooses to participate by filing submissions or attending the final hearing only to articulate its position, then that is a choice that MWRRG makes.  However, it is inappropriate in the context of this case, and having regard to the nature of the issues raised for determination, to limit the role of a statutory authority at this stage in the overall process.  
14	I do not consider there to be any prejudice to any party occasioned by the joinder of MWRRG.  The hearing is listed to commence on 24 August 2020 for 5 days which provides ample opportunity for MWRRG to participate without any need to lengthen the hearing.  I was advised that MWRRG does not intend to call any evidence nor is it likely to cross-examine any witnesses.  Even if it did call evidence or seek to cross examine, given that 5 days have been listed for the final hearing, I am satisfied that the length of the hearing as presently scheduled will not be extended.  For these reasons I am satisfied that the joinder of MWRRG will not cause prejudice to any other party.
15	I understand the practicality of providing for a self-executing order that MWRRG be joined after the compulsory conference takes place.  However, I am not persuaded that it is timely nor efficient to delay the effect of my decision.  In reality if the matter is resolved at the compulsory conference, and MWRRG is not in attendance, section 87(b)(ii) of the VCAT Act allows the member with the agreement of all parties, to strike out MWRRG as a party. 
16	I note for completion that the respondent did not pursue its application to strike out the application.
CONCLUSION
17	For the above-mentioned reasons, I consider it appropriate and in the interests of justice to join the Metropolitan Waste and Resource Recovery Group as a party to this proceeding.

Teresa Bisucci 
Deputy President