VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P865/2019

CATCHWORDS	
Section 114 of the Planning and Environment Act 1987;  Kingston Planning Scheme;  Quarry rehabilitation;  Permit for sand extraction;  Whether permission required for separate use;  Whether rehabilitation is being carried out in accordance with approved rehabilitation plan;  Whether use or development is a contravention of Scheme or Permit	

applicant / responsible authority	Kingston City Council	
respondent	Lantrak Developments Pty Ltd	
interested person	Department of Jobs, Precincts and Regions	
SUBJECT LAND	150 - 170 Old Dandenong Road, Heatherton	
WHERE HELD	Melbourne	
BEFORE	Geoffrey Code, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	12 & 13 March 2020	
date for final written submissions	25 May 2020	
DATE OF ORDER	25 June 2020	
DATE OF correction ORDER	9 July 2020	
citation	Kingston CC v Lantrak Developments Pty Ltd (Corrected) [2020] VCAT 622	
Order
Application amended
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998 the application is amended as follows:
For the facts relied upon in the 18-paragraph annexure A, substitute the facts relied upon in the 22-paragraph annexure A dated 19 June 2019.
Application allowed in part
2	The application is allowed in part.
Enforcement order
3	An enforcement order is made in the form set out in appendix A to this order.
Costs
4	By not later than 31 July 2020, any party that wishes to make an application for costs must file and serve such application and supporting submissions.  The application must include the following information:
(a)	The amount and details of the costs claimed.
(b)	The basis on which the costs are calculated (for example, whether on a standard or indemnity basis, and whether on the County Court or Supreme Court Scale).
Note:  Under Rule 1.07 of the Victorian Civil and Administrative Rules 2018, the default scale of costs is now on a standard basis on the County Court Scale.
(c)	The reasons why costs should be awarded having regard to the provisions of the Victorian Civil and Administrative Tribunal Act 1998.
5	Any response to the application for costs must be filed and served by no later than 14 August 2020.  
6	Upon compliance with the above orders, the Tribunal may decide any application for costs on the papers or list for a hearing if it considers this is appropriate.

Geoffrey Code
Senior Member			

Appearances
For Kingston City Council	Mr Stefan Fiedler, Russell Kennedy Lawyers
He called the following witnesses:
•	Mr Craig Newton, senior planning investigations officer, Kingston City Council
•	Mr Erik Birzulis, land surveyor, Landair Surveys
•	Mr James Mackenzie, civil/geotechnical engineer, Mackenzie Environmental Pty Ltd
He tendered an affidavit affirmed by Mr Craig Newton on 17 July 2019.
He tendered an affidavit affirmed by Mr Peter Healy on 10 March 2020.  Mr Healy was not called to give evidence in relation to the affidavit.
He tendered an undated and unsworn affidavit prepared by Mr James Mackenzie that was included at Appendix G in his statement of evidence.  Mr Mackenzie adopted the affidavit when he adopted the statement.
He tendered two statements signed by Ms Julie Reid, chief executive officer, Kingston City Council on 2 September 2019 and on an unspecified day in March 2020.  Ms Reid was not called to give evidence in relation to the statements.	
For Lantrak Developments Pty Ltd	Mr James Lofting, HWL Ebsworth Lawyers
He called the following witness:
•	Mr Gary Liemant, Secretary & Director, Lantrak Developments Pty Ltd
He also tendered an affidavit sworn by Mr Liemant on 3 December 2019.	
For Department of Jobs, Precincts and Regions	No appearance	

Information
Nature of proceeding	Application under section 114 of the Planning and Environment Act 1987 for an enforcement order	
Planning scheme	Kingston Planning Scheme	
Zone and overlays	Green Wedge A Zone (GWAZ)
Environmental Audit Overlay (EAO)
Environmental Significance Overlay Schedule 4 (Land north of Kingston & Heatherton Roads outside the Urban Growth Boundary) (ESO4)
Land Subject to Inundation Overlay (LSIO)
Design & Development Overlay Schedule 5 (Aviation Obstacle Referral Height Area No 2) (DDO5)	
Permit	The former Melbourne and Metropolitan Board of Works (MMBW) issued permit TP76218 under the Melbourne Metropolitan Planning Scheme for the subject land on 13 October 1975.
The permit allows ‘buildings and works … in accordance with the attached endorsed plans, References 40842-1B, 40842-2B and 40842-1D to be used for the purpose of Sand Extraction’.
The MMBW issued an amended permit on 23 March 1976 (the Permit).
The Permit applies to the subject land plus the land now occupied by the Dingley Bypass that was formerly part of the sand quarry land.	
Authorised land use and development of the subject land	Use and development for Sand Extraction in accordance with the Permit	
Alleged contraventions	Use for Industry, Materials recycling, Refuse disposal or Transfer station or an unspecified use without permission contrary to clauses 35.05-1 & 52.08 of the Kingston Planning Scheme.
Storing spoil above the designated final contour heights with or without surcharge temporarily placed contrary to Permit TP76218 and the Rehabilitation Plan.	
Orders sought	In its application and its submissions at the hearing, the Council seeks six orders in an enforcement order.  Order 1 seeks cessation of unauthorised use(s) of the land.  Orders 2 to 6 seek restoration of the land in accordance with the Rehabilitation Plan, including order 3 which provides:
Within 6 months reinstate the Subject Land to the approved surface contours with any surplus soil or material removed offsite.
At the conclusion of the hearing, the Council sought leave to file and serve within 7 days an amended form of the enforcement order in its application.  Lantrak did not oppose leave and I granted it.  The Council filed and served the amended form of the enforcement order on 20 March 2020.  I also gave Lantrak leave to file and serve a reply submission within a further 7 days.  No reply submission was filed.	
Work Authority	Work Authority 383 (the Work Authority) applies to the subject land.
The Work Authority was issued under the Extractive Industries Development Act 1995 on 18 December 1999.  It was varied on 6 October 2000.
The Work Authority does not apply to the area then to be acquired for the Dingley Bypass area (see Land Description below).	
Rehabilitation Plan	The Rehabilitation Plan consists of the following documents:
•	Lantrak Developments Pty Ltd, Rehabilitation Plan WA 383 East, Old Dandenong Road, Heatherton, including appendices 1 & 2, prepared by Christopher Prowse of C K Prowse & Associates Pty Ltd, dated November 2011 (the RP text).  Appendix 2 is a report entitled Acid Sulphate Soil Management Plan, prepared by Douglas Partners Engineers dated 25 November 2008.	
	•	Drawing no. R137-A0-3/1 entitled WA 383 East, Rehabilitation Plan, prepared by C K Prowse & Associates Pty Ltd for Lantrak Developments Pty Ltd, dated 16 November 2011 (the RP drawing).
•	Drawing no. R137-A0-4/1 entitled WA 383 East, Cross Sections, prepared by C K Prowse & Associates Pty Ltd for Lantrak Developments Pty Ltd, dated 16 November 2011 (the RP cross sections).
Each of these documents is endorsed as approved by the delegate of the Head of the then Department of Primary Industries under the Mineral Resources (Sustainable Development) Act 1990 on 18 January 2012	
Land description	The land is on the northeast side of Heatherton Road in Dingley, on the south-east corner of Elder Street.  It comprises various parcels of land in certificates of title set out below.  It is irregular in shape with a frontage of about 720 metres to Old Dandenong Road.  The land has a total area of about 30 hectares.
It is divided into three non-contiguous parts. The Dingley Bypass divides the whole of the land centrally in a north-south orientation.  Henry Street divides the western part of the land fronting Old Dandenong Road in an east-west orientation.
The quarry has been worked in four broad sub-areas or pits.  The former pit in the north-west corner is bounded by Old Dandenong Road, the Dingley Bypass and Elder Street (the NW pit).  The former pit in the north-east corner is on the east side of the Dingley Bypass (the NE pit).  The former pit in the south-west corner fronts Old Dandenong Road, south of Henry Street (the SW pit).  The former pit in the south-east corner is on the east side of the Dingley Bypass (the SE pit).	
Title particulars	Certificates of Title Volume 8035 Folio 156, Volume 8561 Folio 704, Volume 8598 Folio 015, Volume 9022 Folio 345, Volume 9231 Folio 008, Volume 0297 Folio 504, Volume 9235 Folio 828 and Volume 10777 Folio 618	
Tribunal inspection	On 16 June 2020, I inspected the surrounding land from the public realm and the subject land from the Dingley Bypass, Elder Street & Henry Street, unaccompanied by the parties.	

Reasons
What is this proceeding about?
1	This proceeding concerns a former sand quarry in Heatherton that is currently owned and operated by Lantrak Developments Pty Ltd (Lantrak).  Quarrying activities started in the 1950s.  The sand resource is essentially exhausted.
2	Lantrak acquired the sand quarry land in 2007 for ‘the use of storing clean fill earthen materials generated from development excavation’.  Lantrak submits it has been and is continuing to ‘fill’ or ‘remediate’ the former pits in the subject land in accordance with its obligations under planning law and extractive industries law.
3	After Lantrak acquired the sand quarry, the Road Construction Authority acquired a centrally-located corridor across the sand quarry, on a generally north-south alignment, for the future Dingley Bypass (the Bypass).  The construction of this section of the Bypass started in 2014 and was completed in 2016.  In general terms, the subject land is now the two parts of the sand quarry bisected by the Bypass.
4	Motorists using the Bypass now observe the subject land in a way not previously possible from Old Dandenong Road or any other surrounding roads.  Motorists can now observe significant stockpiles of material on the subject land on both sides of the Bypass.
5	The subject land contains four main pits, two on either side of the Bypass.  Lantrak submits it has made real progress in filling or remediating the north-west pit (NW pit) and the south-west pit (SW pit).  It concedes it has made little progress in the north-east pit (NE pit) and the south-east pit (SE pit), and submits this is mainly due to the acquisition of land for the Bypass.  The NE pit is the largest area and, according to Lantrak, the most complex to fill or remediate.

6	The Kingston City Council (the Council) is the responsible authority for the Kingston Planning Scheme (the Scheme) that applies to the subject land.  It has investigated the stockpiles.  The Council now considers Lantrak is failing to rehabilitate the sand quarry as it is required to do so and the failure constitutes a contravention of both the Scheme and the permit under which quarrying was carried out.
7	The Council has applied to the Tribunal for an enforcement order to require Lantrak to remedy the claimed contravention.
8	The Council bears the evidential burden of proof of any contravention on the balance of probabilities.  The burden rises if the gravity of the facts to be proven are greater.  The burden is elevated in this proceeding because proving the facts might lead to the imposition of the remedies sought by the Council.  Those remedies have significant commercial consequences.
What are the key issues?
9	I agree with Lantrak that the key issues in this proceeding are the following questions:
(a)	Is the subject land being used for any purpose other than a permitted purpose?
(b)	Is the current landform of the subject land a breach of the permit applying to the subject land (the Permit) or the approved rehabilitation plan (the Rehabilitation Plan)?
10	I have decided that the answer to only the second of these questions is ‘yes’ and that an enforcement order should be granted.  My reasons follow.
Permit
11	In this section of the reasons, I set out what is relevant about the Permit.
12	The Permit is an accrued right.  There is no evidence that the Permit has expired or been cancelled.  In determining the scope of the accrued right, I need to have regard to what the Permit allows, any documents endorsed under the Permit, and the Permit conditions.  If the use or development is within the scope of the accrued right, there is no need to consider or rely on any existing use rights.
13	The Permit states the following is ‘hereby permitted’:
Approximately 34 hectares on the east side of Old Dandenong Road … to have buildings and works erected thereon in accordance with the attached endorsed plans, Reference 40842-1B, 40842-2B and 40842-1D to be used for the purpose of Sand Extraction.
14	The Permit is subject to conditions.
15	Condition 1 requires compliance with documents approved under then extractive industries law.  It provides:
The use hereby permitted shall be operated at all times in accordance with the approved working plan and the approved working proposal attached to Extractive Industry Licence No. 716 issued under the Extractive Industries Act 1966.
16	The land must be progressively rehabilitated within 12 months of stripping an area.
17	Conditions 18 & 19 of the Permit directly address reclamation of the subject land following extraction activities.
18	Condition 18 provides:
When ordered by the Responsible Authority any land which has been excavated shall be made available for the reception of filling and shall be sloped, re-soiled and or planted with protective vegetation to the approval of the authority provided that the owner shall be entitled to carry out to the satisfaction of the Responsible Authority the operation of filling, sloping  re-soiling, and or planting with protective vegetation in accordance with the Final Reclamation proposals approved pursuant to the provisions of the Extractive Industries Act.
19	Condition 19 provides:
(a)	Within six (6) months of the issue of the Extractive Industries Licence by the Minister of Mines relating to the land the subject of this permit, the Applicant will place before the Responsible Authority detailed proposals for the progressive reclamation at the expense of the Applicant of the land the subject of this determination.
(b)	The land will be reclaimed by the Applicant at its own expense to the satisfaction of the Responsible Authority and in carrying out such reclamation the Applicant will diligently and promptly comply with the reasonable requirements of the Responsible Authority.
(c)	The proposals to be placed before the Responsible Authority pursuant to paragraph (a) of this condition shall include detailed proposals setting out the time at which such stage of the reclamation work shall be completed and the Applicant shall adhere to all work time-tables included in the proposals for reclamation as approved by the Responsible Authority or such other time-tables as may from time to time be approved by the Responsible Authority.
20	The Permit requires the development to be carried out in accordance with endorsed plans.  Neither the Council nor Lantrak was able to tender a copy of those plans.
21	Although the Permit allows use for the purpose of ‘Sand Extraction’, the conditions confirm that the filling, reclamation or remediation of the voids created by extracting the sand is part of or ancillary to the permitted use.
22	Finally, I observe that the Permit was issued and amended before the Bypass land was acquired and the Bypass constructed.
Rehabilitation Plan 
23	In this section of the reasons, I set out what is relevant about the requirements to rehabilitate or reclaim the subject land.
Approved work plan
24	Work Authority 383 (the Work Authority) applies to the sand quarry, being the land to which the approved work plan and the Permit apply.  It was issued under the now-repealed Extractive Industries Act 1995 (the EI Act).
25	Under the Work Authority, work must be carried out in accordance with an approved work plan, including any variations that incorporate a rehabilitation plan.  As well, the land must be progressively and then finally rehabilitated in accordance with an approved rehabilitation plan.  Lantrak prepared a rehabilitation plan soon after acquiring the sand quarry.
26	The then Department of Primary Industries approved the rehabilitation plan as a variation to the approved work plan on 18 January 2012.  The Rehabilitation Plan comprises the RP text, the RP drawing and the RP cross sections.
General provisions
27	The objective of the Rehabilitation Plan is ‘to rehabilitate to a natural landform for future developments’.  The final landform will comprise a ‘gentle mound’ in each pit area:
Backfilling and compaction will produce a resultant landform sympathetic to the surrounding areas in accordance with landfill planning permission specifications.
As such, the final pits are proposed to be filled to a gentle mound with a subdued gradient.  These slopes are to be top dressed and grassed.  The plantations adjacent to the entrance and within the buffers and setback areas will be preserved.
28	The Rehabilitation Plan acknowledges that the sand resource was virtually exhausted, and that void space is now available for filling with ‘clean fill’.
29	‘Clean fill’ is not defined in the Rehabilitation Plan.  Lantrak accepts that clean fill is essentially natural soils (other than topsoil), gravel or rock containing no harmful substances.  This definition is not inconsistent with the EPA’s definition.  I find that ‘clean fill’ under the Rehabilitation Plan is consistent with these definitions.
30	Rehabilitation to a ‘safe and stable platform’ was expected to be completed by late 2017.
31	The Rehabilitation Plan also acknowledges that more rehabilitation was needed in the pits on the east side of the Bypass (the NE and SE pits) than those on the west side (the NW and SW pits).
32	The east side pits ‘largely [contain] by-product slimes from sand processing’ and would be backfilled with imported ‘clean fill’ and treated Acid Sulphate Soils (ASS) mainly from ‘public infrastructure projects’.  The ASS would be ‘compressed and compacted to hold the slimes further beneath the water table’.
33	Backfilling with ASS, largely from ‘public infrastructure projects’ will be spread over the slimes pits and ‘compressed and compacted to hold the slimes further beneath the water table’.  A 5 metres deep layer of clean fill would then be placed over the ASS as a capping layer.
34	The rehabilitation of the NW and SW pits was nearing completion and would be ‘surcharged’ by up to 6 metres to allow for settlement to ‘an essentially flat landform in sympathy with the natural regional land surface’.
35	The Rehabilitation Plan acknowledges that imported clean fill could be temporarily stockpiled to a height of about 3 metres in ‘hardstand areas’ or ‘adjacent to the backfill site’.
Backfill surface levels
36	The RP text does not dimension the levels reached in the full extraction of the pits, existing levels around the pits, and the future levels following rehabilitation.  These levels must be determined by reference to the RP drawing and in the RP cross sections.
37	The RP cross sections include two north-south sections, on either side of the Bypass land, and two east-west sections, on either side of Henry Street.  The RP cross sections include a ‘Backfill Surface’ line.
38	The ‘Backfill Surface level’ is not defined in the RP text but, in proper context, I find this is the final post-settlement level along the two RP cross sections in each pit sought to be realised by late 2017.  This accords with the notation in each pit on the RP drawing which states:
(Envisaged Pit Backfilled Entirely to Post Settlement Landform According to Approved Planning Permit)
39	The backfill surface level is not dimensioned on the RP cross sections.  It is difficult to discern because it appears as a faint, very thin dashed grey line.  It is necessary to extrapolate to a reduced level vertical scale shown at the end of each section to determine that level.  This task is not easy, as the scale is rudimentary.
40	The RP drawing makes the task less difficult because it shows a ‘Backfill Formline’ showing a slope rising from generally the outer boundaries of each pit in 0.5 metre contour intervals to a topmost ‘Backfill Formline’ level in each pit.  That topmost level is 34.5 metres AHD (in the NE, SE & SW pits) and 36.0 metres AHD (in the NW pit).

41	Finally, the Rehabilitation Plan may be enforced under the Mineral Resources (Sustainable Development) Act 1990 (the MRSD Act).  This proceeding seeks enforcement under planning law not under the MRSD Act.  Investigation and enforcement of the Rehabilitation Plan under the MRSD Act is the responsibility of the Department of Jobs, Precincts and Regions (the Department).
Status of rehabilitation plan under the permit
42	The Rehabilitation Plan does not expressly form part of the Permit.  I have already referred condition 1 of the Permit and the requirement that the use operate in accordance with the ‘approved working plan’.
43	The Rehabilitation Plan is part of the approved work plan.  Accordingly, compliance with the Rehabilitation Plan is an obligation under condition 1 of the Permit.
44	I have also already set out conditions 18 & 19 of the Permit which also relate to rehabilitation requirements.  The Council ultimately does not rely on any alleged contravention of those conditions, so it is unnecessary to further consider them.
Planning Scheme
45	In this section of the reasons, I describe the provisions of the Scheme relevant to the proceeding.
46	In the Information section at the start of these reasons, I have set out the zone and overlay provisions under the Scheme that currently apply to the subject land.  The Council tendered two statements prepared by Ms Reid under section 140 of the Planning and Environment Act 1987 (the PE Act).
47	In accordance with Ms Reid’s uncontradicted evidence, the GWAZ provides that the use of the subject land for ‘Industry (other than Rural industry’ is prohibited.  ‘Refuse disposal’, ‘Materials recycling’ and ‘Transfer station’ are all uses that are nested within ‘Industry’.  Consequently, those uses are also prohibited.  
48	If the subject land is being used for a separate use that is properly characterised as an unspecified use in the GWAZ, the use may only be carried out with the permission of the Council.  The Council has not granted any permission to use the land for a purpose other than as allowed under the Permit.
49	The outcome that the use is prohibited or requires permission only applies if the use is a separate use and the activities are not ancillary to or part of a permitted use.
50	Before 24 January 2020, the use of the subject land for ‘Stone extraction’ required permission in the GWAZ.  On and from 24 January 2020, ‘Stone extraction’ was removed from the Scheme as a defined use and ‘Extractive industry’ was inserted into the Scheme as a defined use.  On and from that date, ‘Extractive industry’ required permission in the GWAZ.
51	These arrangements have no consequence for this proceeding because it is not in dispute that the subject land may be used for ‘Extractive industry’ without the need for permission because the extraction of sand from the subject is lawful in accordance with the Permit.
Department of Jobs, Precincts and Regions
52	The Department is an interested person in this proceeding.  In response to an invitation from the Tribunal, the Department filed a written submission dated 6 February 2020.  The Department agrees that the approved work plan includes the Rehabilitation Plan.
53	The submission states the Department’s inspectors visited the quarry shortly before filing its submission and observed two mounds on both the west and east sides of the Bypass.  The Department states that its ‘initial view is that each of those mounds appear to exceed the heights described in the approved work plan’ and that the NE pit ‘appears to be within the levels described in the work plan and consists of untreated slimes and possibly [ASS]’.
54	The Department stated in its submission that it is further investigating whether any action may be required to be taken under the MRSD Act.  However, in later email correspondence to the Council and Lantrak dated 10 March 2020, the Department confirmed that it had decided to not take any enforcement action.
unauthorised use?
55	In this section of the reasons, I consider whether the subject land is being used for a purpose other than the purpose permitted by the Permit and, if so, if that is a contravention of the Scheme.

Claim
56	The Council claims Lantrak is using, and has been using since at least 21 February 2019, the subject land for:
(a)	the purpose of Industry, Materials recycling, Refuse disposal or Transfer station (as specified in the Scheme); or
(b)	the purpose of importing, processing, stockpiling and removing of material (being an unspecified purpose in the Scheme).
Law
57	It is unnecessary to set out in detail the law relating to the characterisation of the use of land.
58	It suffices to state that a use must be characterised as having regard to its real and substantial purpose accordingly to ordinary terminology and at an appropriate level of generality.  Characterisation does not therefore involve meticulous examination of individual activities or processes being conducted on land.  It also does not require a purpose to be for a use that is currently defined in a planning scheme.  A wide range of activities or processes may be characterised as being part of a single purpose as long as those activities or processes are ancillary to that purpose.  Whether an activity is ancillary to a single purpose depends on the relevant facts and circumstances.  If the activities are not ancillary, they may be properly characterised as a separate use of the land.
59	The Scheme provides that if land is being used for more than one use (ie the activities are not ancillary to another use that is permitted), the additional use must comply with the Scheme.
60	If the real and substantial purpose is for the uses defined in the Scheme as Industry, Materials recycling, Refuse disposal or Transfer station, those uses are prohibited and, save for any existing use rights, would be a contravention of the Scheme.
61	If the real and substantial purpose is for the unspecified use of importing, processing, stockpiling and removing material, the use requires permission and, absent permission or existing use rights, would be a contravention of the Scheme.
The Council’s evidence
62	The Council relies on the evidence of its planning investigations officer, Mr Newton (who inspected and photographed the subject land on both sides of the Bypass on 21 February 2019 and 15 July 2019), its engineer witness Mr Mackenzie (who inspected and photographed the NW and SW pits on 15 July 2019) and the 12 aerial photographs of the subject land between 6 November 2009 and 25 January 2020 exhibited to Mr Healy’s affidavit.
63	The part of the subject land to which the Council’s claim primarily relates is the SW pit but also includes the northern section of the NW pit.
64	In the SW pit there is screening equipment with conveyor belts, hard stand areas, about 18 storage bays, shipping containers, a portable building and various stockpiles of materials.  The storage bays contain aggregate materials and rubble.  Some of the stockpiles contain basalt rock quarry product, generally less than 50 mm diameter particle size.  Some stockpiles contain contaminants such as bricks, ‘potential asbestos cement material’, concrete, plastic pipe, ceramic tiles, tyres and golf balls.  These features in the SW pit are in active use.
65	In the NW pit, Mr Mackenzie observed a large mainly vegetated mound.  At the northern end of this pit he observed an unvegetated surface with brick fragments, concrete, plastic, ceramics etc consistent with the SW pit. In his opinion, the storage of this material was inconsistent with the Rehabilitation Plan.  He found recently formed stockpiles, well used and maintained vehicle paths ‘indicative of an active/operational soil stockpiling area’.
66	Mr Mackenzie’s ultimate opinion is that the SW pit is used for stockpiling and processing (or screening) of imported quarry materials and aggregates for uses other than for rehabilitating the subject land.
Lantrak’s evidence
67	Mr Liemant’s evidence is that the processing of material is ‘only necessary as part of the overall purpose of receiving the material, which is to remediate the pits’.  He relies on two examples of these activities.
68	In the first example, Mr Liemant’s evidence is clean fill might contain clay and soil and it is necessary to segregate the clay for use as fill and the soil removed.
69	In the second example, Mr Liemant’s evidence refers to Lantrak having contracts to accept material from transport projects, such as level crossing removal projects.  In one of these contracts, the material must be screened and the railway ballast stone segregated and returned to the project site.  Mr Liemant’s evidence is that the segregated and returned ballast stone is no more than 5% of the volume of the material and at least 95% is retained for filling and remediation.
70	Mr Liemont’s opinion and Lantrak’s submissions are that the processing or screening of materials is ancillary to rehabilitation (ie reclamation or filling) of the subject land.
Findings
71	It follows from my summary description of the law that evidence of activities associated with importing, processing (including screening), stockpiling and removal of material are not, by themselves, evidence of a separate use.
Segregating or screening material on the subject land
72	I accept that segregating or screening soil from other wastes is not always possible at the location from which such material is sourced and, consequently, the segregating or screening must occur at other locations.  
73	The segregation or screening might then occur at an intermediate site.  If that is the real and substantial purpose of the site, the use might then be characterised as a ‘Transfer station’.  The subject land is not an intermediate site.
74	The EPA recognises that segregation or screening might occur at the ‘clean fill’ site, such as the subject land.  The EPA also recognises that sorting at a clean fill site may require planning permission.  This repeats, in effect, what I have already stated that segregating or screening or sorting may be a separate use and may either be permitted or prohibited or require permission, depending on the provisions of the relevant planning scheme.
75	The Council must prove those activities are not ancillary to the permitted use which includes reclamation or filling of the subject land.  It must prove, on the balance of probabilities, that those activities must be of a scale or otherwise have the characteristics of a separate use.
76	Accordingly, Mr Newton’s and Mr Mackenzie’s evidence of dump trucks, front end loaders, recent stockpiling, a hardstand area, screening equipment, plant growth of some stockpiles and well-travelled accessways are insufficient.
77	Lantrak must fill and remediate the subject land with clean fill.  Ideally, that material should be brought onto the subject land in that form.  However, if some material must be processed or screened from time to time on the subject land before being used or stored for filling, that activity could be ancillary to the permitted use.
78	The Rehabilitation Plan is silent on screening and segregating (including stockpiling and exporting) contaminants in imported fill.  It may have been of assistance in this proceeding if it had made provision for such activities.  However, as the activities are not expressly restricted or regulated in the Rehabilitation Plan, it is open to find the activities are ancillary.
79	I accept that screening of a limited amount of railway ballast from material removed from level crossing projects and returning that ballast for re-use in the project and retaining the vast majority of material as clean fill is an example of an activity that is ancillary.  
80	Similarly, Lantrak may find, from time to time, that other imported material contains relatively small amounts of contaminants such as those observed by Mr Mackenzie, such as brick, concrete and tiles.  If it chooses to screen, stockpile and remove those contaminants on the subject land, then that activity is also able to be characterised as ancillary.
81	There are limits to the scale and nature of these activities.  For example, Mr Liemant referred to the activity of segregating soil from clay and stockpiling clay for fill and soil for capping or removal.  If the Council was able to prove that most (or a significant proportion) of the soil was being removed for commercial purposes rather than filling (including capping) purposes, I would doubt the activity could be characterised as ancillary.
82	I accept Mr Mackenzie is an engineer experienced in quarry activities, including remediation activities.  However, his observations are insufficient proof for his overall opinion that the subject land, or at least the SW pit, is being used for processing, stockpiling and removal of materials other than those used to fill the subject land.
Volume of material
83	The Council relies on the evidence of Mr Birzulis about the volume of fill material on the subject land in support of its claim of a separate use.
84	Mr Birzulis calculated the volume of material currently above and below the backfill surface levels in each pit (to which I have already referred) to determine how much of the available void in the respective pit remained available to be filled.
85	There are several stockpiles in three of the four pits that are well above the backfill surface levels.  I will refer to this in more detail in the next section of these reasons.  Mr Birzulis found there was 196,260m3 (in the NW pit), 150,015m3 (in the NE and SE pits combined) and 177,650m3 (in the SE pit) above the backfill surface levels.
86	Some parts of the pits are still below the backfill surface levels, particularly in the NE and SE pits where little progress has been made with remediation.  In those pits, he found a volume of 327,455m3 below the backfill surface levels.  He also found a modest volume below the backfill surface level in the NW and SW pits.
87	As a consequence, the net outcome across the subject land is that the subject land is currently overfilled by nearly 200,000m3.
88	The Council contends this evidence proves two relevant matters.  First, that there is no need for Lantrak to accept any more fill to fill the pits to the backfill design levels.  Second, that to complete the filling and remediation of the subject land, Lantrak only needs to move existing fill from those areas above the backfill design levels to those areas below and to remove any overfill from the subject land.
89	These contentions have some attraction but I find them to be insufficient proof.  Ultimately they are speculative and they were not the express opinions of Mr Mackenzie and Mr Birzulis.
Conclusion
90	The Council’s contention that the subject land is being used for a separate use is not made out.  The current use of the land is not a contravention of the Scheme.
contravention of the permit?
91	In this section of the reasons, I consider the Council’s contention that the development of the subject land is a contravention of the Permit.
Claim
92	The Council claims the height of some of the stockpiles significantly exceeds the relevant backfill surface level for the pit in which those stockpiles are located and are a contravention of the Permit.

The Rehabilitation Plan
93	I agree with Mr Mackenzie that the Rehabilitation Plan lacks detail and its provisions are vague.  The cross sections are surprisingly imprecise.  It does not show pre-settlement fill levels.  It does not define or specify in sufficient detail what is permitted surcharging.  Any impact on levels arising from surcharging is not shown on the RP drawing or RP cross sections.  There is insufficient detail on how slimes will be managed and what impact this might have on rehabilitating the subject land.
94	This lack of detail makes it more difficult to determine if there is any non-compliance.  
95	The parties agree that a rehabilitation plan approved in 2020 for the subject land (or any other extractive industury site) would be very different.
The Council’s evidence
96	I have already referred to Mr Birzulis’ evidence about the volume of material above the backfill surface levels in the Rehabilitation Plan.
97	Mr Birzulis carried out an aerial survey of the subject land on 18 August 2019 and prepared an existing contour plan.  The maximum height of the stockpiles are 45.0 metres AHD, 43.3 metres AHD, 44.3 metres AHD & 37.5 metres AHD, respectively, in the NW pit, NE pit, SW pit & SE pit.
98	I have already found the topmost formline of the backfill surface levels is 36.0 metres AHD, 34.5 metres AHD, 34.5 metres AHD & 34.5 metres AHD, respectively, in the same pits
99	Accordingly, I accept Mr Birzulis’ evidence that the highest point of the existing stockpiles in the NW pit, NE pit, SW pit & SE pit are 11.2 metres, 8.5 metres, 9.9 metres and 9.1 metres above the topmost formline of the backfill surface level.
100	Mr Mackenzie inspected the NW pit and the SW pit on 15 July 2019 and, in his opinion, those pits are ‘significantly’ overfilled contrary to the Rehabilitation Plan.  In his opinion, under the Rehabilitation Plan each pit should be capped with 5 metres of clean fill to the backfill surface levels of between 34.5 metres AHD and 36.0 metres AHD and that no surcharging should exceed those backfill levels.
Lantrak’s evidence and submissions
101	My very brief summary of Mr Liemant’s evidence and the submissions on behalf of Lantrak is as follows:
(a)	Managing the slimes in each pit has proven more complex and time consuming than Lantrak originally envisaged.
(b)	Managing the slimes requires gradual accumulation of material above the slimes to carefully compress the slimes and force the water into the water table.
(c)	The slimes are forced up into the stockpiles by this process, as evidenced by the bore hole results tendered during the hearing.
(d)	The gradual accumulation means that stockpile heights will temporarily exceed the backfill surface levels.
(e)	Temporary exceedance of backfill surface levels is not prohibited under the Rehabilitation Plan having regard to its provisions for ‘surcharging’ and the stockpiles are therefore no contravention of either the Rehabilitation Plan or the Permit.
Findings
102	In summary, I find the Council has proved this contravention.  The extent to which the height of each of the stockpiles exceeds the backfill surface levels is a breach of the Rehabilitation Plan.  The failure to complete the rehabilitation by late 2017 is also a breach of the Rehabilitation Plan and Permit.
103	This finding is subject to the meaning and effect of ‘surcharging’ in the Rehabilitation Plan.  As I have stated, it is unhelpful that the Rehabilitation Plan does not define surcharging.  The Rehabilitation Plan envisages rehabilitation (ie backfilling the pits with clean fill and treated ASS and then capping with clean fill/soil) by surcharging and compacting.  Under the heading ‘backfilling’, the Rehabilitation Plan then states:
Essentially up to 6m surcharge and pre-settlement compaction to produce an essentially flat landform …
104	Mr Mackenzie is an experienced quarry engineer.  He is surprised that the Rehabilitation Plan includes no details on how any surcharge material is to be constructed or monitored or how long any surcharge material may be left in place.  In his opinion, the purpose of surcharging is to speed up settlement.
105	Mr Mackenzie was critical that there is no evidence that Lantrak has monitored any surcharging with what he described as dedicated survey plates, common in comparable circumstances.
106	In his opinion, there is little difference between the proposed 5 metres deep soil cap and the ‘up to 6 [metres]’ deep surcharge.  He firmly rejected the proposition that surcharging would allow the pit areas to be filled to a height 6 metres above the backfill surface level.
107	Nevertheless, he concedes that the ambiguity means that it is open to me to find that the 5 metres deep capping layer is either above or below the backfill surface level.
108	His view is that the stockpiles in the NW and SW pits ‘are not consistent with my experience with the design and construction of engineered surcharge’ and that the levels in those pits should now be the backfill surface levels.  Accordingly, in his opinion, each of the stockpiles are between 8.5 metres and 11.2 metres above any level of surcharging material authorised under the Rehabilitation Plan and will not produce an essentially flat landform in sympathy with natural regional land surfaces.
109	Mr Liemant has a very different and broader view about what is surcharging.  He views surcharging as adding material to provide a temporary weight on slimes that aims to push away the moisture in the slimes and compact the material in the slimes.
110	In his view, surcharging has got nothing to do with the backfill surface level because it is a means of reaching that level from a level that might be significantly above the backfill surface level.  Mr Liemant infers that the deeper/higher the surcharging, the faster settlement will be achieved.
111	Mr Liemant states surcharging often has the temporary effect of raising the level of the slimes in a stockpile.  He refers to the results of drilling logs conducted by Lantrak’s drilling contractors mainly in the NW pit and said to have been carried out on the day before the first day of the hearing.  Using a pushtube, the driller found slimes and wet silty clays between about 1 metre and 3.2 metres deep at various levels in the stockpiles above about 44 metres AHD.
112	It is surprising that an experienced extractive industries engineer and an experienced materials handling company executive have such different opinions about what is surcharging.  I must prefer the opinion of Mr Mackenzie based on his professional expertise and his independence.

113	I do not give weight to the driller’s results.  The results are not a statement of evidence prepared with the rigour of an expert’s statement.  The driller was not called to adopt the tendered results and be examined.  The driller’s qualifications and experienced are unknown.  
114	Mr Birzulis doubts the accuracy of the driller’s results.  Mr Mackenzie infers they were not carried out by a geotechnical engineer and the results are not confirmed by laboratory analysis.  Mr Mackenzie does not accept slimes could be present above 34.5 metres AHD in the NW pit area when the base of the excavated pit was at 20 metres AHD, as stated in the Rehabilitation Plan.
115	As well, Mr Liemant states that because surcharging material has a temporary purpose it is not used for backfilling.  He states the SW pit is surcharged by sands from local markets and its porosity makes it unsuitable as fill.  He states it will be sold as roadworks packing sand and not used to rehabilitate the subject land.
116	In Mr Mackenzie’s opinion, it does not necessarily follow that settlement of fill is speeded by higher/deeper surcharging because it depends on the nature (or ‘strength’) of the slimes present, the load and other factors.
117	Mr Mackenzie’s opinion is that there is little progress in rehabilitating the NE and SE pits as evidenced by the significant surface water which has not yet been pumped out.
118	Mr Liemant concedes that not all stockpiles contain surcharge and that the stockpile in the NW pit is ‘interim cap’ and not surcharge.  He concedes the interim cap is above the backfill surface level.  He further concedes variations are needed to the Work Authority and the Rehabilitation Plan in relation to remediating the pits.
119	In conclusion, I find Lantrak is in contravention of condition 1 of the Permit because the use has not been conducted in accordance with the approved working plan in the licence which, in turn, requires work to be carried out in the Rehabilitation Plan.
should an enforcement order be made?
120	Even if there is a contravention of the Permit, the Tribunal has discretion as to whether to make an enforcement order.
121	In this proceeding, it is relevant to consider the size, scope and effect of the contravention and Lantrak’s reasons for the existence of the contravention.

122	The size, scope and effect of the contravention is significant.  If I take the NW pit as an example, the stockpile in that pit is up to over 11 metres above the backfill surface level.  The extent of exceedance is not minor.  By my reckoning, about 90% of the whole pit constitutes a stockpile that exceeds the backfill surface level of 36.0 metres AHD.  The situation in the SW pit is very similar.
123	The stockpiles in the relatively bigger NE and SE pits occupy a much smaller part of those pits, although the stockpiles exceed permitted levels by similar raw amounts.  Very little progress has been made to rehabilitate the NE pit.  There is a significant void in the NE pit available to be filled.  Mr Birzulis’ evidence that the subject land as a whole is already about 200,000m3 overfilled underscores the contravention in the NW and SW pits.
124	The overfill is unsightly.  Overfill about 15 metres above the Bypass and close to the Bypass means the stockpiles are visually jarring.
125	Lantrak contends progress is being made to rehabilitate the land but the obligation under the Rehabilitation Plan to complete in 2017 has clearly not been met.  Lantrak’s main reasons for the lack of progress include:
•	Ongoing complexity with slimes management, which means slimes must be rehabilitated before the Rehabilitation Plan may be carried out to completion.  Lantrak submits it estimated, on acquisition of the subject land, that 40% of pit volumes would be slimes but this proved to be 80%.
•	Unawareness that the Rehabilitation Plan required completion by late 2017.
•	Uncertain demand by customers to deposit clean fill on the subject land.
•	The time and effort needed to screen and process deposited material before it constitutes clean fill able to be used to rehabilitate the pits.
•	The need for more time to dry the stockpiles in the NW and SW pits before overfill could be transferred to the NE and SE pits.
•	The vagueness of the Rehabilitation Plan. 
•	No investigations or inspections by the Council of the subject land before the Bypass opened and no complaints received.
•	The adverse effect on the management of the subject land and on Lantrak’s finances caused by the acquisition of the Bypass land in a corridor through the middle of the subject land.
•	The obligations under the Permit are unclear because it has not been updated in over 44 years and predates the significant impact on the use caused by the acquisition of part of the subject land for, and subsequent construction of, the Bypass.
126	Lantrak cannot estimate when completion will occur.  The slimes problems in the NE pit, where little or no progress has occurred, also suggests that completion may be at least 10 years away.
127	I find none of these explanations or excuses sufficient to warrant exercising discretion to not make an enforcement order, although I do accept the acquisition of land construction of the Bypass is likely to have impacted progress.  I will mention just some of the factors which lead me to this conclusion.
128	First, Lantrak is an experienced operator in the materials handling industry.  A failure to carry out sufficient due diligence (on, in particular, the nature of the slimes) before acquiring the subject land is not a sufficient excuse for non-compliance.
129	Second, the deficiencies of the Rehabilitation Plan are an insufficient excuse when Lantrak acknowledges those deficiencies.  For example, Lantrak acknowledged uncertainty about to what height the stockpiles may reach before remediation is complete.  However, Lantrak has taken little or no action to remedy them.
130	Third, the evidence suggests that there have been commercial reasons for delays, as much as any of the submitted reasons.  As an example of this, Lantrak referred to the level crossing project contracts.  On one of those projects, it submitted it received about 500,000m3 of fill and following processing on site, about 8,000m3 of railway ballast was returned to the project site.  Lantrak stated about 50,000m3 was ‘unsuitable for remediation’, inferring it was neither clean fill nor treated ASS.  Lantrak used most of the suitable material to surcharge the slimes instead of filling the voids and then that material will be sold to cover its costs in handling the clean fill.  This leads to delays in rehabilitating the pit areas.
131	Fourth, it suffices to state there is little independent evidence of the significance of the excuses.  Lantrak relies on Mr Liemant, its secretary and director.  It is not supported by the evidence of its engineering consultants.  Mr Mackenzie did not accept any of the excuses as sufficient.
132	An enforcement order needs to be made to ensure the Rehabilitation Plan is now carried through to completion in accordance with the Permit under a clear and enforceable timetable.
what should the order require?
133	In relation to the Council’s alleged contravention relating to the height of the stockpiles, the Council sought an enforcement order in the following terms:
Within 1 month undertake a survey of the Subject Land identifying the contours/elevations of the Subject Land against the permitted final contours as referenced in the [Permit].
Within 2 months assess and clarify the soil and material in accordance with the Industrial Waste Guidelines 2009.
Within 6 months reinstate the Subject Land to the approved surface contours with any surplus soil or material removed offsite.
Within 7 months provide a report to the responsible authority, confirming the requirements of the order have been complied with, including soil classification and final survey verifying the site is in compliance with condition 18 of the permit.
The reports and survey work detailed above, must be undertaken by suitably qualified professionals with at least 5 years practical experience within the industry sector from which the services are being provided.
134	Based on the submissions and evidence in this proceeding, I would not make an enforcement in that form.  It is in the public interest that Lantrak proposes how it can now proceed to complete rehabilitating the pits in good time and submit those proposals to the Council for its approval.
135	Towards the close of the hearing, the Council tendered a form of an enforcement order that was framed with that objective.  Lantrak had an opportunity to make submissions on this amended form of order.
136	I have taken that further draft into account in settling the form of the enforcement order.  The focus of the enforcement order I intend to make is to require Lantrak to submit a land restoration plan to the Council’s satisfaction that provides for the completion of a staged rehabilitation of the subject land within 5 years.
Conclusion
137	Non-compliance with the Rehabilitation Plan is a contravention of condition 1 of the Permit.
138	Although it has deficiencies from a planning perspective, the Rehabilitation Plan requires the voids in the four pits to be rehabilitated with clean fill to specified backfill surface levels by late 2017.

139	The evidentiary burden is on the Council to prove the contraventions.  On the evidence and submissions in this proceeding, it has discharged that onus in relation to one of the two alleged contraventions.  The height of stockpiles in each of the four pits exceeds what is permitted under the Rehabilitation Plan and is a contravention of the Permit.  The use of the subject land for an unauthorised use separate to that of extractive industry is not proven.
140	I will make an enforcement order requiring the preparation of a land restoration plan that provides for a lowering of the height of the non-compliant stockpiles and completion of a staged rehabilitation of the subject land within 5 years.
141	Finally, as the Permit and the Rehabilitation Plan have various deficiencies, in part a result of the passage of time, the Council and Lantrak are encouraged to consider whether the Permit should be amended and updated.  I also encourage Lantrak and the Department to consider whether to update the Rehabilitation Plan.

Geoffrey Code
Senior Member			

appendix A

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment DIVISION
planning and environment LIST	vcat reference No. P865/2019

applicant / responsible authority	Kingston City Council	
OWNER / Occupier	Lantrak Developments Pty Ltd	
interested person	Department of Jobs, Precincts and Regions	
SUBJECT LAND	150 - 170 Old Dandenong Road, Heatherton
Certificates of Title Volume 8035 Folio 156, Volume 8561 Folio 704, Volume 8598 Folio 015, Volume 9022 Folio 345, Volume 9231 Folio 008, Volume 0297 Folio 504, Volume 9235 Folio 828, Volume 10777 Folio 618	
WHERE HELD	Melbourne	
BEFORE	Geoffrey Code, Senior Member	
DATE OF ORDER	25 June 2020	
DATE OF correction ORDER	9 July 2020	

ENFORCEMENT order
NATURE OF CONTRAVENTION	Storing spoil above the designated final contour heights (the ‘backfill surface levels’ in the Rehabilitation Plan) with or without surcharge temporarily placed contrary to condition 1 of Permit TP76218 and the Rehabilitation Plan	
Interpretation
1	In this enforcement order:
Land restoration plan means the report prepared and approved under order 2.
Permit means permit TP76218 issued by the Melbourne and Metropolitan Board of Works under the Melbourne Metropolitan Planning Scheme on 13 October 1975.  It includes the amended permit issued by the Melbourne and Metropolitan Board of Works on 23 March 1976, and includes any amendment to the permit issued by Kingston City Council after the date of this order.
Rehabilitation plan means all of the following documents endorsed as approved by the delegate of the Head of the then Department of Primary Industries under the Mineral Resources (Sustainable Development) Act 1990 on 18 January 2012:
(a)	Lantrak Developments Pty Ltd, Rehabilitation Plan WA 383 East, Old Dandenong Road, Heatherton, including appendices 1 & 2, prepared by Christopher Prowse of C K Prowse & Associates Pty Ltd, dated November 2011,
(b)	Drawing no. R137-A0-4/1 entitled WA 383 East, Cross Sections, prepared by C K Prowse & Associates Pty Ltd for Lantrak Developments Pty Ltd, dated 16 November 2011, and
(c)	Drawing no. R137-A0-3/1 entitled WA 383 East, Rehabilitation Plan, prepared by C K Prowse & Associates Pty Ltd for Lantrak Developments Pty Ltd, dated 16 November 2011,
and includes any variation to the Rehabilitation Plan approved under the Mineral Resources (Sustainable Development) Act 1990 after the date of this order.
Land restoration plan
2	By not later than 24 December 2020, Lantrak Developments Pty Ltd must prepare a report (the land restoration plan) to the satisfaction of Kingston City Council detailing the progressive restoration of the subject land to the condition, including final land form, specified in the Rehabilitation Plan.  The land restoration plan must ensure compliance with condition 19 of the Permit and must include:
(a)	The number of stages, including the parts of the subject land to which each stage applies.
(b)	The works to be carried out in each stage.
(c)	The sequence by which the works in each stage will be carried out.
(d)	The date by which the works in each stage will start and be completed, providing the date for completion of works in the final stage must be not later than 25 June 2025.
Land restoration
3	Lantrak Developments Pty Ltd must start and complete the works in each stage in the land restoration plan by the dates specified in the land restoration plan to the satisfaction of the Kingston City Council. 
4	By no later than 25 June 2025, Lantrak Developments Pty Ltd must complete the works in all the stages in the land restoration plan and restore the subject land to the condition, including final land form, specified in the Rehabilitation Plan.
Service
5	By no later than 15 July 2020, Kingston City Council must serve a copy of this order on Lantrak Developments Pty Ltd pursuant to section 140 of the Victorian Civil and Administrative Tribunal Act 1998.

Geoffrey Code
Senior Member