Court says up to 1.14 million cubic metres of waste can be dumped at Mangrove Mountain

The Land and Environment Court (LEC) has found the court orders entered by Gosford City Council in 2014 stand and that the operator of the Mangrove Mountain Landfill doesn’t need to obtain further development consent to carry out those orders but would require consent for new land uses or a materially different development.

LEC Justice Rachel Pepper ordered that Verde Terra (VT) may “lawfully carry out the works ordered by the Court on 29 August 2014 … without the need to obtain further development consent” and said her judgement was the culmination of a “long running and increasing complex dispute”.

The 2014 orders between the former Gosford City Council and VT included agreement to accept 1.14 million cubic metres of waste at the Mangrove Mountain Landfill Golf Course site whereas the original 1998 consent allowed for 240,000 cubic metres of fill.

The 2014 consent orders were said to result “in remediation of the site” and achieve “appropriate controls and monitoring during the construction of the golf course to minimise risk of environmental harm”.

Under the 2014 orders, waste was to be removed, or shifted into lined cells, the waste mound capped, and the remodelled 18-hole golf course completed within 10 years.

“There was no requirement expressly stipulated in the 2014 consent orders for VT (or any other entity) to obtain further development consent in order to carry out the works specified by the orders,” Justice Pepper ruled.

She criticised Central Coast Council for not acting earlier on its concerns VT breached its development consent and pursued activities beyond the 2014 LEC orders.

Her judgement refers to remedies available to Council as consent authority under the Environment Planning and Assessment Act (EPAA).

Council said it was considering the judgement.

According to the new orders, it has 28 days from March 25 to “appeal” or request the LEC to vary its terms.

VT accepted that breaches of the 1998 consent had occurred but argued the breaches occurred when the landfill was controlled by another operator.

“It was not in dispute that prior to the making of the 2014 consent orders, the Council sent its own waste to the landfill,” Pepper said.

With one exception, the 2014 orders said “any future amendment will only occur with the consent of Gosford City Council” and, according to the judgement, this hasn’t occurred.

So, while VT now has the court’s permission to carry out the 2014 court orders, Justice Pepper has specified that any activities beyond those orders are not permitted.

Following the 2014 court orders VT revised the site’s Landfill Environmental Management Plan (LEMP) and Leachate Management Plan (LMP) via the EPA without seeking Gosford City Council’s permission.

“The 2014 LEMP and 2014 LMP were not consistent with the 2014 consent orders,” Justice Pepper found.

The final landform and golf course layout was materially different from the landform and the golf course layout referred to in the 2014 orders.

During the latest case, VT accepted that Council never formally approved the 2014 LEMP and LMP and Justice Pepper found Council could apply for LEC injunctions or use its powers as consent authority to approve or refuse activities that fall outside the 1998 consent and 2014 court orders.

“I accept that the evidence discloses, as at the making of the 2014 consent orders, that the VT parties intended to use the land primarily as a waste disposal facility, with the reconstruction of the golf course being secondary.

“Waste disposal was the core activity of the VT companies and the Bingo group, whose business interests, personnel and accounting practices were all directed to this purpose.

“This is very different from the landfilling proposed for the purpose of remodelling the golf course as authorised by the 1998 consent.

“It is also very different from the works contemplated by the 2014 consent orders as those orders are properly construed.

“If works have been, or are proposed to be, carried out outside the scope of those orders, for example, pursuant to any impermissible revision of the Amended 2013 LEMP and 2013 LMP, then they will not be authorised, and can be injuncted.”

Between 2014 and the subsequent 2019-22 LEC actions, VT attempted to vary its Environmental Protection Licence (EPL) seeking EPA permission to carry out waste processing and waste storage at the site, land uses that weren’t part of any development consent or court orders.

According to Justice Pepper, “The Court has no power … to order some other use of the land not approved by the original consent.”

She found that the only authority that can approve a new land use is the consent authority.

In April 2016 the EPA’s 1996 environmental guidelines for solid waste landfills were superseded by 2016 Landfill Guidelines with more demanding minimum standards, including landfill cell lining for general solid waste.

The VT consent, the 2014 court orders and the operator’s EPL adhere to the 1996 guidelines and cells at the existing landfill are unlined.

However, according to Justice Pepper, “The 2014 consent orders explicitly permit an additional approval to be obtained.

“The Court, in Class 1, can consequently grant a new development consent which accommodates the 2016 Landfill Guidelines.”

Further amendments to the LEMP and LMP were submitted to the EPA in 2016 and 2017 which proposed changes not in the 2014 orders.

In 2017 the EPA sought clarification from Council that it could alter VT’s EPL if it conformed with Council’s development consent.

Council said VT needed either a ‘fresh’ development application or an application to modify the existing consent and in 2018 the EPA refused to vary the EPL.

In December 2019 VT submitted a 2018 development application with a Statement of Environmental Effects stating the “Need for the Proposal” as for the development of a regional landfill.

It included the construction of two additional large sediment basins with linking overflow channels.

The Pepper judgement says EPA Regulations require the development must constitute alterations and additions to existing development and that, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development.

Otherwise, a fresh development consent would be needed.

The judgement gave a comprehensive history of the golf course remodelling saga including the sale of the land by the RSL to Mangrove Properties for the modest sum of $750,000.

The case clarified the connections between the Tartak family, Bingo and the Mangrove Mountain Landfill.

We learn that Tony Tartak’s stated motivation for the purchase of the land was to give him more control of the subject site and that he would not have allowed this transaction to proceed had the 2014 consent orders not been made.

According to the judgement, the VT companies were operating as part of the Tartak family waste industry business (which included the Bingo group until Bingo Industries Pty Ltd was floated on the stock exchange in May 2017).

Bingo has advised it sold the asset before being listed on the Australian Stock Exchange and no longer has any connection to the Mangrove Mountain Landfill.

In July 2011 Tony Tartak purchased VT for $3M.

His stated principal motivation in doing so was that the company had a contractual right to landfill on the Mangrove Mountain site.

“I accept that VT was not purchased in order to use the land for the purpose of a golf course,” Justice Pepper said.

Verde Terra has been contacted for comment but had not responded at the time of going to press.

Justice Pepper’s judgement ran to over 160 pages, 551 paragraphs and took from November 2020 to March 2022 to finalise and make public.

This story was originally published as part of a longer article on www.thepoint.net.au ESG News Site.

Jackie Pearson

Past stories on topic