The Charter vs methane

The name, ‘Brookland Greens‘, is a warning of its own. It’s the kind of environmentally happy moniker property developers always seem to choose for their least salubrious new estates. In this case, proximity to landfill has left the residents exposed to a greenhouse gas, with methane turning the grass brown and threatening to explode. The residents face having to move out and they and the entire suburb of Cranbourne risk plummeting property prices, but they aren’t the only ones who are sweating. The issue of compensation is looming large.

Interestingly, VCAT is at the centre of the crisis. Casey City Council and the Environmental Protection Agency both opposed the building of the estate so close to the landfill, citing the risk from methane, but VCAT overruled them. To VCAT’s credit, it has put the key judgments up prominently on its website, including the most damning judgment from May 2004 by VCAT senior member Richard Horsfall and member Sylvia Mainwarring:

At the conclusion of the hearing of application P1277/2003 we gave an interim decision that we accept Mr Taylor’s submissions and case that… the required buffer distances of the subdivision from the landfill should be 200 metres, not 500 metres, and should be measured from the active tipping and batter areas, and that the 200 metre buffer zone under the Cranbourne Development Plan could be progressively reduced as the tipping areas/cells are completed , capped and gas extraction systems installed and operating…

Yikes. Lucky for them (and the lawyers and experts) that they have immunity. [EDIT: And that would be why Ben Hardwick, spruiking for a class action, has written a column today shifting the blame from VTAC to the EPA.]

Lately, planning has been very much on the mind of Kevin Bell, VCAT’s new president and a keen follower and developer of Charter law, who spoke at the State Planning Conference a week back. His powerpoints are available, but not his speech. According to The Age:

He said the charter’s provisions would affect “the conduct of almost all holders of statutory power exercising functions of a public nature, including municipal councils and their staff”. Issues in Europe have included the use of land by homeless or transient people and the forced removal of elderly people from run-down accommodation. Justice Bell told the conference the critical human right often cited in Europe was respect for private and family life and the home. “The European cases emphasise the need for planning decision makers to pay careful regard to how the planning decision will impact on the human rights of the various people affected,” he said.

Charter s. 13(a) isn’t the only right at stake. I stumbled across a quite interesting ECtHR case from 2004, the same year VCAT made its fateful decisions about Brookland Greens and its tip. Öneryildiz v Turkey [2004] ECHR 657 is a Grand Chamber judgment that happens to involve the responsibility of state planning authorities for the danger of methane from a rubbish tip. However, the case involved much more significant rights than respect for home life.

When the Ümraniye rubbish tip opened in Istanbul in 1972, it was 3.5km away from the nearest housing. Alas, in the intervening years slums developed up to its outskirts and the district council looked into re-developing the tip itself. As part of a fight with Istanbul City Council, the district council called for court experts to investigate the landfill’s compliance with relevant regulations. The experts concluded that it didn’t, citing multiple risks including:

This installation contains no means of preventing an explosion of the methane produced as a result of the decomposition [of the waste]. May God preserve us, as the damage could be very substantial given the neighbouring dwellings. …

Neither God nor the relevant authorities did anything; indeed, the district council tried to get the report quashed on a technicality, while the city council awarded a contract to an American firm to develop sites in the tip for housing. Just under two years after the report was released, a methane explosion caused a landslide of refuse to fall on the slum, killing thirty-nine. Öneryildiz lost his house and nine close relatives.

The apportionment of blame, according to a committee of experts advising the local public prosecutor, would make interesting reading for members of Victoria’s governments:

(i) 2/8 to Istanbul City Council, for failing to act sufficiently early to prevent the technical problems which already existed when the tip was first created in 1970 and had continued to deteriorate since then, or to indicate to the district councils concerned an alternative waste-collection site, as it was obliged to do under Law no. 3030;

(ii) 2/8 to Ümraniye District Council for implementing a development plan while omitting, contrary to Regulations no. 20814, to provide for a 1,000 metre-wide buffer zone to remain uninhabited, and for attracting illegal dwellings to the area and taking no steps to prevent them from being built, despite the experts’ report of 7 May 1991;

(iii) 2/8 to the slum inhabitants for endangering the members of their families by settling near a mountain of waste;

(iv) 1/8 to the Ministry of the Environment for failing to monitor the tip effectively in accordance with the Regulations on Solid-Waste Control (no. 20814);

(v) 1/8 to the Government for encouraging the spread of this type of settlement by declaring an amnesty in relation to illegal dwellings on a number of occasions and granting property titles to the occupants.

The mayors of the two councils were convicted of negligence, with the judges observing:

… although they had been informed of the [experts’] report, the two defendants took no proper preventive measures. Just as a person who shoots into a crowd should know that people will die and, accordingly, cannot then claim to have acted without intending to kill, the defendants cannot allege in the present case that they did not intend to neglect their duties. They do not bear the entire responsibility, however. … They were negligent, as were others. In the instant case the main error consists in building dwellings beneath a refuse tip situated on a hillside and it is the inhabitants of these slum dwellings who are responsible. They should have had regard to the risk that the mountain of rubbish would one day collapse on their heads and that they would suffer damage. They should not have built dwellings fifty metres from the tip. They have paid for that recklessness with their lives…

The European Court of Human Rights rejected the judges’ pinning some of the blame on the residents, noting that the State not only encouraged the growth of the slum, but profited from it by taxing the residents. But presumably it wouldn’t be so forgiving to commercial developers of an estate…

Turkey, collectively for all the government agencies, was held to have breached the European equivalents to these two Charter rights:

9 Every person has the right to life and has the right not to be arbitrarily deprived of life.

20 A person must not be deprived of his or her property other than in accordance with law.

Presumably, these same rights will loom large in VCAT planning decisions involving physical and property danger in the future.

Indeed, a month-and-a-half ago, VCAT made just such a decision, rejecting an application from owners of coastal land to build some residences:

In the present case, we have applied the precautionary principle. We consider that increases in the severity of storm events coupled with rising sea levels create a reasonably foreseeable risk of inundation of the subject land and the proposed dwellings, which is unacceptable. This risk strengthens our conclusion that this land and land in the Grip Road area generally is unsuitable for residential development.

They didn’t cite the Charter, but rather this provision of the Planning and Environment Act 1987:

60(1) Before deciding on an application, the responsible authority must consider— …. (e) any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development.

This section doesn’t make any reference to risks to the lives of the people involved, though I guess that’s implicit. But, in any case, it may be explicit under the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

However, that depends on whether VCAT, is a public authority, which depends (because of Charter s. 4(1)(j)) on whether its planning decisions are part of its ‘administrative functions’, which in turn depends on whether that term excludes judicial-style decisions, or just registry-style decisions. This esoteric and difficult issue is the product of the Consultation Committee’s completely irrelevant concern about the effects of the Charter on the common law and on disputes between private parties. (See my rant about Charter s. 4(1)(J) here.)

Kevin Bell’s view is that VCAT should change its approach, ‘public authority’ or not. In a major speech concerning reforms to VCAT a week ago, he wrote:

The challenge we face in this area is two-fold. First, to the extent we are bound to do so, in both our administrative and our adjudicative functioning, we must comply with the Charter. To the extent that respect for human rights requires the same action, whether we are Charter-bound or not, we should so act. VCAT has done much educative and preparatory work in this regard, but more needs to be done. For us, human rights needs to be part of the wallpaper. Second, the members of VCAT, especially those in senior positions, need to contribute to the development of a human rights jurisprudence. This is an interesting prospect, but will require professional development and careful thought.

Alas, Deputy President McKenzie’s decision in the BAE Systems Australia case three days ago falls far short of meeting Bell’s challenge:

Relevant factors in considering whether VCAT, in determining exemption applications, is a public authority will no doubt include the nature of an exemption proceeding itself. An exemption proceeding is a proceeding of an unusual kind. It can commence on application or on the Tribunal’s own initiative. Generally, there is no ‘dispute’ or ‘respondent’. An exemption, if granted, has future application and operates by notice published in the Government Gazette. It may relate to a class of people, activities or circumstances. But all these are matters for another day.

That’s right, applying her unfortunate interpretation of Charter s. 2, she escaped applying not only the interpretation mandate but also the conduct mandate (in the ninth month of the mandate’s operation), simply because BAE lodged its application a week before Charter s. 38 commenced.

If the Charter had applied to VCAT’s 2004 decision about Brookland Greens, then the residents and Victoria’s government may not have been in the mess they’re in now. It’s time for Victoria’s courts and tribunals to adopt a precautionary principle of their own: stop finding ways to avoid applying the Charter and start applying the interpretation and conduct mandates whenever you can.

One thought on “The Charter vs methane

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