Always Recycling Pty Ltd v Environment Protection Authority (No 2)

[2012] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:	Always Recycling Pty Ltd v Environment Protection Authority (No 2) [2012] NSWLEC 1220
Hearing dates:	10 July 2012
Decision date:	10 July 2012
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See [35]
Catchwords:	APPEAL - Environment Protection Licence - Application for transfer - Waste recycling facility - Conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979 Protection of the Environment Operations (Waste) Regulation 2005 Protection of the Environment Operations Act 1997
Cases Cited:	Adelaide Hills Recycling Pty Limited v Development Assessment Commission [2010] SAERDC 53 Always Recycling Pty Ltd v Environment Protection Authority [2012] NSWLEC 1170 House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498 Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 Mosman Municipal Council v Denning [2002] NSWLEC 227 North Sydney Municipal Council v Boyts Radio & Electrical Pty Limited (1989) 16 NSWLR 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Category:	Principal judgment
Parties:	Always Recycling Pty Ltd (Applicant) Environment Protection Authority (Respondent)
Representation:	Solicitors Ms M Parrino, Colin Biggers & Paisley (Applicant) Mr R Fox, Legal Services Branch Office of Environment and Heritage (Respondent)
File Number(s):	11162 of 2011

EX TEMPORE Judgment

1. This is an appeal under s 287 of the Protection of the Environment Operations Act 1997 in relation to an application made by Always Recycling Pty Limited (Always) for the transfer of an Environment Protection Licence (EPL) from Number 1 Excavation and Demolition (NSW) Pty Ltd (No 1).

1. In a judgment delivered on 21 June 2012 (Always Recycling Pty Ltd v Environment Protection Authority [2012] NSWLEC 1170) I concluded that I am satisfied that the transfer of EPL No13198 from Number 1 to Always can be approved subject to conditions.

1. There were a number of conditions that were in dispute between the parties, and the earlier judgment addressed some of those matters of dispute. There were other matters which I indicated in the earlier judgment required some further consideration, and I directed the parties to provide final conditions for an EPL that reflected the conclusion in that judgment.

1. The parties took some time to discuss the proposed conditions, however they were unable to reach agreement on all of the conditions, and they exercised the liberty to have the matter re-listed before me today.

1. I will now deal with the conditions that were still in dispute and which have been the subject of argument today.

Condition L3.3

1. Condition L3.3 as proposed by the Environment Protection Authority (the EPA) specifies the waste that can be received at the premises. I note that the final version of the conditions incorporates L3.1 which is the restriction on the entitlement of Always to receive additional waste. Condition L3.3 includes a Table that specifies the waste that can be received once condition L3.1 has been complied with.

1. The parties are in disagreement as to what ought to be contained in the Table to condition L3.3. At para [104] in the earlier judgment I addressed condition L3.3, noting that the list of types of waste that can be received at the site once condition L3.1 has been complied with needs to correspond with the waste permitted under the conditions of the Project Approval under Part 3A of the Environmental Planning and Assessment Act1979 under which the recycling facility operates on the site. However the parties are in dispute as to what that Project Approval authorises.

1. The Table as proposed by the EPA includes "Building and Demolition Waste", as defined in Sch 1 of the Protection of the Environment Operations Act1997 in force from time to time, and "General or specific exempted waste", which is waste subject to particular resource recovery exemptions under the Protection of the Environment Operations (Waste) Regulation2005.

1. Always proposes that the Table include the following additional waste material: "Virgin excavated natural material" (VENM), "Asphalt waste", "Garden waste", "Wood waste" and "Soil". I note that with the exception of soil, the additional wastes that Always wishes to have specified were included in the EPL issued by the EPA to No 1.

1. Always submits that in understanding what is authorised by the Project Approval, the Project Approval should be construed broadly and liberally. In support of that submission Always relies on three authorities of the Court of Appeal: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; North Sydney Municipal Council v BoytsRadio & Electrical Pty Limited(1989) 16 NSWLR 50; and House of Peace Pty Limited v Bankstown City Council (2000) 48 NSWLR 498; and two decisions of Lloyd J: Mosman Municipal Council v Denning [2002] NSWLEC 227; Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227.

1. Always submits, relying on those authorities, that the general approach to be taken is to construe the use authorised by planning approval broadly and liberally so that confining it to a precise activity is not required. On that basis the types of materials listed in the Project Approval to be received at the premises as "building and construction waste" included soils, and garden waste. Secondly, the Project Approval must speak according to its written terms, construed in context but having regard to its enduring fashion. Always submits that it has invested a substantial amount of money in acting on the Project Approval and the relevant licence to enable the approved wastes under the licence to be managed at the premises. Thirdly, Always submits that the Project Approval is to be read in a commonsense way and construed not as if the words were the language of a statute, but from a practical viewpoint in order to give effect to the obvious intention of the draftsperson.

1. Always also relies upon a decision of the South Australian Environment Resources and Development Court in Adelaide Hills Recycling Pty Limited v Development Assessment Commission [2010] SAERDC 53 in support of its submission that the inclusion of soils, VENM, asphalt waste, and garden waste to be materials received on site and processed, does not change the essential nature of the use of the land, being a materials recycling facility for the recycling of building and construction waste.

1. The EPA submits that the Project Approval speaks for itself and that the terms of that approval do not include wastes identified by Always. The EPA submits that inclusion of those wastes would result in a significantly different facility to that approved under Part 3A of the Environmental Planning and Assessment Act. The EPA accepts that there were some administrative errors in the drafting of the EPL issued to No 1, however submits that the opportunity should be taken to correct those errors in any EPL issued as a consequence of this appeal.

1. The Project Approval under which the recycling facility operates was first issued in 2007 and modified in 2009. The relevant conditions are conditions 2 and 4:

Terms of Approval

2. The proponent shall carry out the project generally in accordance with the:

(a) EA;

(b) Final Statement of Commitments;

(c) Modification application 06_0053 MOD 1 and accompanying Environmental Assessment Report titled Modification of the Chester Hill Materials Recycling Facility (06_MOD1) to include the Recycling of Additional Types of Material dated February 2009; and

(d) conditions of this approval.

Limits of Approval

4. The Proponent shall not process more than 100,000 tonnes of building and construction waste including metal per year at the site.

1. The EA referred to in condition 2 (a) is the environmental assessment documentation provided with the original project approval application titled Environmental Assessment to Accompany a Major Projects Application for a Materials Recycling Facility, 191 Miller Road, Chester Hill, dated November 2006 and prepared by BBC Consulting Planners.

1. To understand the activities authorised by the Project Approval, therefore, it is necessary to turn to those documents. The initial project as described in the environment assessment documentation (Environmental Assessment to Accompany a Major Projects Application for a Materials Recycling Facility, 191 Miller Road, Chester Hill, dated November 2006), was to undertake "storage and processing of ferrous and non-ferrous metals". The significant element of the modification to the Project Approval was to reduce the percentage of metal processed within the facility to 20 percent of the volume of material processed and to change the modified use to be the "recycling of building and construction waste which will include metal, concrete, timber, bricks, tiles and rubber".

1. The environmental assessment accompanying the modification application (Modification of the Chester Hill Materials Recycling Facility (06_MOD1) to include the Recycling of Additional Types of Material dated February 2009) refers (at p 12), as part of the discussion of the nature of the proposed modified use, to the processing of certain types of products, including how concrete and brick products are to be dealt with, the use of timber received to be mulched for use as mulch in gardens, and the separation of steel and screening of topsoil collected within the material.

1. Always relies in support of its submissions as to the extent of the Project Approval on the provisions of a Waste Management Plan which was prepared and approved in compliance with condition 15 of the Project Approval, and which refers to "concrete, metals, inert and general solid waste (including concrete, bricks, tiles, vegetative material, dirt/earth components), topsoil (and refers to VENM and ENM), and timber and green material and "general building and construction waste".

1. I agree that the general approach to be adopted as to how a use for the purposes of existing use rights, or how a development consent for the purposes of construing the extent of activities authorised, is to be considered, is that according to the authorities relied upon by Always.

1. The terms of the Project Approval, including the environment assessments incorporated into that Project Approval by condition 2, are clear. The modified Project Approval allows for recycling of building and construction waste, including metal, concrete, timber, bricks, tiles and rubber. There is no express reference to soil, however it is clear that building and construction waste may include soil, and the specification of the screening treatment for topsoil collected within the material makes that clear. Similarly, the statement that timber received will be mulched for use in gardens, is a reference to timber included within the general category of building and construction waste.

1. The terms of the Waste Management Plan approved as a consequence of the Project Approval may have included a reference to other materials, however of itself that document cannot alter the limits of the Project Approval and the types of materials that can lawfully be processed and recycled in accordance with its conditions. Similarly, any administrative error on the part of the Environment Protection Authority in including other wastes in the EPL originally issued to No 1, cannot alter the activity approved under the Part 3A Project Approval.

1. The EPL as issued to No 1, and as proposed, refers to "building and demolition waste". At the time of issue of the modified Project Approval and the issue of the EPL, the definition of that term in Sch 1 cl 50(1) of the Protection of the Environment Operation Act was:

building and demolition waste means unsegregated material (other than material containing asbestos waste) that results from:

(a) the demolition, erection, construction, refurbishment or alteration of buildings other than:

(i) chemical works, or

(ii) mineral processing works, or

(iii) container reconditioning works, or

(iv) waste treatment facilities, or

(b) the construction, replacement, repair or alteration of infrastructure development such as roads, tunnels, sewage, water, electricity, telecommunications and airports,

and includes materials such as:

(c) bricks, concrete, soil, paper, plastics, glass and metal, and

(d) timber, including unsegregated timber, that may contain timber treated with chemicals such as copper chrome arsenate (CCA), high temperature creosote (HTC), pigmented emulsified creosote (PEC) and light organic solvent preservative (LOSP).

1. The definition has now been amended, and includes a proviso that building and demolition waste "does not include excavated soil (for example, soil excavated to level off a site prior to construction or to enable foundations to be laid or infrastructure to be constructed)".

1. Always submits that consistent with the Project Approval, "soil" should be included in the Table in the EPL.

1. I do not read the present definition of "building and demolition waste" as excluding soil received as part of building and construction waste, which would be accommodated within the reference to soil collected within the material, but rather, is directed to excavated soil as such.

1. In my view to include VENM, asphalt waste, garden waste, wood waste and soil in the table to condition L3.3, would potentially permit Always to receive and process waste of those types independently of whether they are included in building and construction waste. That would not in my view be consistent with the terms of the Project Approval. In order to achieve consistency between the EPL and the Project Approval, the Table should include building and demolition waste and not the other types of waste, and it should also include general or specific exempted waste.

Condition L5.1

1. Condition L5.1 was not the subject of detailed submission or evidence in the earlier hearing, however Always today has submitted that it ought to be amended again to bring the EPL into compliance with the Project Approval.

1. Condition L5.1 specifies the hours in which activities on the premises, "including construction work, receipt or processing of waste and transport of waste or other material", may be carried out. Always submits that when reference is had to the Project Approval, there is a note to the relevant condition (condition 7) that states:

Note 1: Construction activities may be conducted outside the hours in Table 2 provided that the activities are not audible at any residence beyond the boundaries of the site.

Note 2: Heavy machinery being defined as 20 tonne excavators and equivalent.

1. Assuming that it is proper to read these notes as forming part of the conditions of the Project Approval, the argument of Always is that the Project Approval would appear to permit construction activities outside the hours specified in Table 2: Construction and Operation Hours for the Project, provided that they do not impact on amenity. Always proposes that the sub-note be included in condition L5.1, or in the alternative, that the reference to construction work be deleted from that condition. The EPA opposes this, drawing a distinction between the construction phase and the operation phase of the recycling facility.

1. In the earlier reasons I made findings that in certain fundamental respects, the requirements of the Project Approval have not been complied with, in particular the installation of measures proposed and required by the Stormwater Management Plan, and I discussed the conditions that ought properly be imposed to bring the site into compliance. It is clear that that will require some construction work, including the erection of jersey concrete barriers which are considered below, so that the distinction between the construction and the operation phases is not as clear as the EPA's submissions would suggest. Any amendment to condition L5.1 to bring it into conformity with condition 7 in the Project Approval would be limited by consideration of any adverse amenity impacts. I am not persuaded that there is a reason not to bring the EPL into consistency with the Project Approval, and the simplest way to do that is to insert the proviso in the form of the notes into condition L5.1.

Conditions U7.1 and L6.2

1. For the reasons discussed at paras [87] to [92] of the earlier judgment, I concluded that a condition imposing a volumetric limit to the amount of waste (including processed materials) on the site should not be imposed at this stage. I was satisfied that it is sufficient to specify maximum stockpile heights and setbacks in order to control the amount of waste on the site and to determine whether condition L3.1 has been met, which would enable Always to recommence receipt of waste for processing.

1. After some discussion this morning the parties have agreed on condition L6.1 setting the height limits of the stockpiles, and L6.2 specifying setbacks by distance from the southern, eastern and northern boundaries of the site. The parties have agreed on the location of concrete jersey barriers to be installed to physically separate the roadways and storage areas and to delineate the required setback.

1. Condition U7.1 as redrafted by the parties during the course of their discussions this morning is to include a reference to the General Arrangement Plan dated 31 August 2009, prepared by Emerson and Associates, which was included as part of the revised Stormwater Management Plan approved in compliance with the Project Approval, and on which the locations of the concrete jersey barriers are marked.

1. I am satisfied that these amended conditions will achieve consistency with the Project Approval and will also provide certainty, both for Always in terms of understanding its obligations under the EPL, and also for the EPA in undertaking its compliance and other regulatory actions.

1. The EPA is to file in hard copy and electronically by 12.00 on 11 July 2012 the final conditions, following which orders will be made in chambers.

Linda Pearson

Commissioner of the Court

Decision last updated: 13 August 2012