Supreme Court Appeal
Thursday 27 July 2017
Yesterday at the Supreme Court of Appeal, Yarra City Council succeeded at overturning a previous finding that Council "appeared to abandon" pollution at a Metropolitan Fire Brigade (MFB) owned site in Richmond. However the court failed to overturn the finding that Council is liable for the acts of the former City of Richmond of "causing or permitting" pollution that occurred several decades ago when such practices were considered perfectly legal.
While Council succeeded in part, it is bitterly disappointed with the decision that Council is still liable for contamination at the MFB site on the corner of Burnley St and Barkley Avenue Richmond.
At the trial in 2016, Yarra Council was found to have both "caused or permitted" pollution (by the acts of City of Richmond between 1916 and 1960) and "appeared to abandon" pollution (by the acts of City of Yarra, when the site was taken off them in 1996).
Council will now receive advice from its legal team before considering whether to appeal to the High Court, to again try and overturn the finding that Council "caused or permitted" pollution.
The land was originally occupied by Richmond Council, prior to State Government amalgamations and the creation of Yarra Council. Yarra Council was unaware of the existence of the tar pit contamination which was the subject of the litigation.
In 1996, the State Government compulsorily took possession of the site from Yarra Council for use as an operations depot during the construction of the Burnley tunnel. In 2005, the government sold the land at a discounted price to the Metropolitan Fire and Emergency Services Board’s (MFESB).
Council has always maintained the MFESB due diligence was hopelessly inadequate when purchasing the site from the State Government in 2005.
An environment report at the time of sale clearly showed a contamination problem yet despite the warnings, the MFESB failed to further investigate and instead proceeded with purchasing the site from the State Government for a discounted land price
., and gave the State Government a complete indemnity for any contamination found on the site.
The outcome of this case will have a significant impact on every public authority that has had land under its control for the last 100 years or more.
The litigation has been a grossly unfair imposition and expense to Council and its ratepayers.
The Court's judgment is almost 100 pages. Council and its lawyers will urgently review that judgement, before considering any further action.