Hallam Road landfill operator Veolia breached its licence and the general environmental duty, the Supreme Court found.
Winsome Anderson, who owned a 38-hectare property east of the landfill, accused the landfill operator Veolia of breaching its licence and the general environment duty and interfering with the potential use of her land.
The court accepted the two breaches but dismissed the claim of interference.
Ms Anderson is entitled to seek relief from the two breaches under the Environment Protection Act 2017, but she will not be compensated for the assessment of a vent curtain system along the boundary under the claim of interference.
The vent curtain system was to mitigate the migrating landfill gas (LFG).
The trial started on 15 November 2023 and Justice Michael McDonald delivered the judgement on Thursday 18 July 2024.
Ms Anderson claimed that Veolia breached its operating licence and general environment duty (GED), as the tip’s landfill gas (LFG) had migrated to her property and exceeded safety benchmarks at the boundary.
Veolia rejected the claims.
The court ruled that Veolia breached its licence by failing to take all practicable measures to prevent emissions of LFG from exceeding the prescribed levels by up to 80 times in the subsurface geology at the landfill boundary.
It was discovered that between 1 July 2022 and 30 October 2023, Veolia failed to take three practicable measures to prevent emissions of methane gas from exceeding the benchmark in the subsurface geology at the landfill boundary.
The three practicable measures included placing a final cap on cell 12, ensuring the optimal efficiency of its LFG extraction system, and preparing and implementing a remediation action plan.
The court revealed that cell 12 was full in May 2020 and cell 13 in February 2023, and Veolia’s licence mandates that the operator must cap the cells within two years of complete fill.
Experts evidenced that there was no current impediment to Veolia placing permanent caps on both cells.
As the design faults in the leachate drainage measures of cells 12 and 13 provided a pathway for LFG to escape, the final capping would be “very likely” to stop LFG’s continuous escape.
Veolia did not explain its failure to put a final cap on cell 12.
However, experts evidenced that it was common to wait as long as possible to gain commercial interest for the landfill operator to place more waste inside the cell.
Veolia was found to accordingly breach the general environmental duty.
Ms Anderson also claimed that the pollution from the tip hindered the potential horticultural development of her land, as it necessitated the design of an “in-ground pathway intervention structure at the boundary of the landfill to address the changing risks of LFG” in the information requirements of the planning permit application.
An email from Ms Anderson’s planning consultant to Casey’s statutory planner revealed that Ms Anderson was “not prepared to invest what would be a considerable amount of money in an attempt to satisfy these comments without first having the security of a planning permit”.
The absence of the design later led to the rejection of the permit.
Ms Anderson initially sought a $14 million “in-ground pathway intervention system in the form of a landfill gas vent curtain system”.
Later in March this year, she revised the order to seek an assessment of the feasibility of constructing a vent curtain system along the 600-metre boundary.
The court dismissed the possibility of the order as Justice McDonald did not consider it “reasonably necessary to prevent, minimise or remedy Veolia’s breach of the GED or non-compliance with the licence”.
He also stated that Ms Anderson had not established that “but for the presence of LFG on their land, the City of Casey would have granted their planning permit application for a horticultural development”.
The court is considering orders for Veolia to prepare a landfill gas remediation action plan that identifies all practicable measures to reduce emissions of LFG at the boundary, implement the action plan, and provide the final cap design for cells 12 and 13 at the landfill and progress construction of the caps.
It will make the final orders on 26 August.
