City of Adelaide v Environment Protection Authority - [2005] SASC 221

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CITY OF ADELAIDE v ENVIRONMENT PROTECTION AUTHORITY
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Vanstone and The Honourable Justice Anderson)
17 June 2005
ENVIRONMENT AND PLANNING - POLLUTION - WASTE DISPOSAL - REGULATION - PARTICULAR CASES - RUBBISH OR GARBAGE TIPS AND WASTE DEPOTS
Waste depot - licence to operate waste or recycling depot - whether licence authorised operation of both a waste and recycling depot - whether renewal of licence in January 2005 contrary to Wingfield Waste Depot Closure Act 1999 - whether renewal of licence contrary to Environment Protection Act 1993.
Environment Protection Act 1993 s 36, s 43, s 45, s 46, s 47, s 106, Sch 1; Wingfield Waste Depot Closure Act 1999 s 3, s 5, s 6; Waste Management Act 1987 (Repealed), referred to.
Federal Steam Navigation Co Ltd v Department of Trade & Industry [1974] 1 WLR 505; Footersville Pty Ltd v Miles (1986) 41 SASR 211; Saraswati v The Queen (1991) 100 ALR 193; Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, applied.
Morgan v Thomas (1882) 9 QBD 643; Goodwin v Phillips (1908) 7 CLR 1; R F Brown & Co Ltd v Harrison (1927) 43 TLR 633; Guildford Rural District Council v Fortescue & Penny [1959] 2 QBD 112; Shire of Perth v O'Keefe (1964) 110 CLR 529; Franconi v Shire of Perth [1965] WAR 37; Willoughby Municipal Council v F G Nissen Pty Ltd (1965) 13 LGRA 106; Cobiac v Liddy (1969) 119 CLR 257; Norman v Gosford Shire Council (1975) 132 CLR 83; Prestige Car Sales Pty Ltd v Town of Walkerville (1979) 20 SASR 514; Corporation of the City of Adelaide v City of Salisbury (1988) 100 LGERA 160; Ormerod v Blaslov (1989) 52 SASR 263, considered.

CITY OF ADELAIDE v ENVIRONMENT PROTECTION AUTHORITY
[2005] SASC 221
Full Court: Debelle, Vanstone and Anderson JJ

DEBELLE J. Since at least 1956 the appellant, the Corporation of the City of Adelaide (“the Council”) has disposed of waste at the Wingfield Waste Depot (“Wingfield”). A brief history of the Council’s operations at Wingfield is set out in Corporation of the City of Adelaide v City of Salisbury (1988) 100 LGERA 160.
Environmental Authorisations
One means by which the Environment Protection Act 1993 seeks to protect the environment is to prescribe a list of activities of environmental significance and permit them to be conducted only if an environmental authorisation is granted by the Environment Protection Authority (“the Authority”). Schedule 1 of the Environment Protection Act lists prescribed activities of environmental significance. Paragraph 3 of Schedule 1 lists six activities associated with waste disposal under the heading “Waste Treatment and Disposal”. One of those six activities is Waste or Recycling Depots: see para 3 (3) of Schedule 1. Waste or Recycling Depots are described in para 3 (3) as “the conduct of a depot for the reception, storage, treatment, or disposal of waste”. Paragraph 3 (3) then lists a number of exceptions which are irrelevant for present purposes.
Part 6 of the Environment Protection Act prescribes the manner in which environmental authorisations are issued. Section 36 of the Act provides that a person must not undertake a prescribed activity of environmental significance except as authorised by an environmental authorisation in the form of a licence issued under Part 6 of the Act. It is not possible, therefore, to conduct a waste or recycling depot unless a licence has been issued under s 36.
Since 1 May 1995, when the Environment Protection Act came into operation, the Council has operated Wingfield pursuant to a licence granted under s 36 of that Act. The licence has been renewed from time to time by the Authority. One of the issues in this appeal is what activities did the licence permit the Council to conduct pursuant to the licence.
The Closure Act
On 6 May 1999 the Wingfield Waste Depot Closure Act 1999 (“the Closure Act”) came into operation. That Act required Wingfield to be closed as a depot for “the reception and disposal of waste” by 31 December 2000. However, it was possible for the Council to continue to use Wingfield for the reception and disposal of waste until 31 December 2004 if the Minister had adopted a Landfill Environmental Management Plan (“LEMP”) before the first anniversary of the commencement of the Closure Act, that is to say, on or before 6 May 2000: see s 6 of the Closure Act The Council prepared a LEMP which was adopted by the Minister on 6 May 2000. The Council was able, therefore, to continue to apply to the Authority to renew its licence for the disposal of waste at Wingfield. The Authority renewed the licence from time to time until 31 December 2004.
The previous paragraph is a summary of s 6 of the Closure Act. It is necessary to note the provisions of ss 3, 5 and 6 of that Act. Section 3 sets out the objects of the Closure Act. They are
(a)to provide for the closure of the waste depot conducted by the Council at Wingfield in an environmentally acceptable manner;
(b)to provide for public participation in the preparation of the LEMP; and
(c)     to restrict the height of the solid waste fill at Wingfield to 27 metres.
Section 5 provides that the Closure Act prevails over any law to the contrary and s 6 prescribes the kinds of activities which may be authorised at Wingfield. Sections 5 and 6 are in these terms:
5.     This Act applies despite any other Act or law to the contrary.
6.(1)     Subject to this section, a licence or any other environmental authorisation must not be granted, renewed or varied under the Environment Protection Act 1993 so as to authorise the use after 31 December 2000 of Wingfield as a depot for the reception or disposal of waste.
(2)A licence or any other environmental authorisation granted, renewed or varied under the Environmental Protection Act 1993 before the commencement of this Act that authorises the use after 31 December 2000 of Wingfield as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste ceases to have effect after that date.
(3)If, before the first anniversary of the commencement of this Act, the operator has prepared and the Minister has adopted a Landfill Environmental Management Plan under Part 3 in relation to Wingfield, the Authority must, on application by the operator under the Environment Protection Act 1993, grant or renew a licence authorising the use after 31 December 2000 of Wingfield as a depot for the reception and disposal of waste.
(4)The licence –
(a)must implement, and be consistent with, the Landfill Environmental Management Plan;
(b)must not authorise the use after 31 December 2004 of Wingfield as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste.
(5)Subject to subsection (6) a licence or any other environmental authorisation must not be granted, renewed or varied under the Environment Protection Act 1993 so as to authorise the use after 31 December 2004 of Wingfield as a depot for the reception or disposal of waste.
(6)Nothing in this section prevents the Authority from granting, renewing or varying a licence or any other environmental authorisation so as to authorise the use of Wingfield as a depot for the reception of waste for recycling or waste transfer purposes.
It will have been noticed that sub-s (6) permits the Authority to grant, renew or vary a licence to the Council for recycling and waste transfer operations after 31 December 2004.
An Application to Renew the Licence
On 14 October 2004 the Council lodged with the Authority an application dated 12 October 2004 to renew its licence which was to expire on 31 December 2004. The Authority did not deal with the application until 31 December 2004. Late on that day, it issued an emergency authorisation pursuant to s 105 of the Environment Protection Act. That emergency authorisation allowed the appellant to “receive waste fill and intermediate cover for the purposes of final capping and rehabilitation of the landfill”.
The Council ceased receiving waste for disposal at Wingfield on 31 December 2004. It has continued to receive waste for the purpose of recycling and waste transfer.
On 14 January 2005 the Authority renewed the Council’s licence for a period expiring on 31 March 2005. Among other things, the licence authorised the receipt and disposal of waste and other activities. To the extent that the licence authorised the receipt and disposal of waste it was contrary to the terms of s 6 of the Closure Act. The Council applied to renew its licence beyond 31 March 2005.
A Conditional Renewal
On 31 March 2005 the Authority renewed the Council’s licence for the period 1 April 2005 to 30 September 2005. The licence permits the Council to conduct the prescribed activity of a “Waste or Recycling Depot”. The licence is subject to a number of detailed conditions which are spelled out over nine pages of the licence. Conditions 13, 19 and 20 are the subject of this appeal. They are in these terms
13.     The Licensee must only receive the following wastes at the Premises:
1.    brick rubble for utilisation in construction of all weather access roads; and
2.    waste fill for purposes of capping in accordance with Condition 67-440 of this licence.
19.     CHANGE TO PROCESS EMISSIONS OR WASTE
The Licensee must not undertake any changes to operating processes at the Premises that:
1.has the potential to increase the emissions, or alter the nature of pollutants or waste currently generated by or from the activity; or
2.has the potential to increase the risk of environmental harm; or
3.would relocate the point of discharge of pollution or waste at the Premises
unless the Licensee has:
3.1made application to the Authority to enable an assessment of the likely environmental impacts of the proposed change; and
3.2received written approval from the Authority enabling the proposed change to proceed.
Note:The Authority may during the term of this licence impose or vary the conditions of this authorisation upon approval of an application made in accordance with this condition.
20.     ALTERATIONS TO PLANT AND EQUIPMENT
The Licensee must not construct or alter a building or structure, or install or alter any plant or equipment that:
1.has the potential to increase the emissions, or alter the nature of pollutants or waste currently generated by or from the activity; or
2.has the potential to increase the risk of environmental harm; or
3.would relocate the point of discharge of pollution or waste at the Premises
unless the Licensee has:
3.1made application to the Authority to enable an assessment of the likely environmental impacts of the proposed changes; and
3.2paid the application fee, and
3.3received written approval from the Authority allowing the proposed changes to proceed.
Note:The Authority may during the term of this licence impose or vary the conditions of this authorisation upon approval of an application made in accordance with this condition.
Two things must be noticed about these conditions. First, condition 13 restricts the waste which can be received to brick, rubble for road construction and waste fill to cap the Wingfield dump. Secondly, the conditions prevent the Council from changing its operating processes at Wingfield without obtaining the approval of the Authority. These restrictions effectively prohibit the Council from using Wingfield for recycling waste and as a waste transfer station.
The Council Appeals
Section 106 of the Environment Protection Act provides an applicant for a grant or renewal of a licence with a right of appeal to the Environment, Resources and Development Court (“the Environment Court”) from, among other things, a decision of the Authority imposing a condition on the grant or renewal of a licence. On 31 March 2005 the Council appealed to the Environment Court from the decision of the Authority imposing Conditions 13, 19 and 20 on the licence from 1 April to 30 September 2005. On 22 April 2005 the Environment Court dismissed the appeal. The Council appeals to this Court against the decision of the Environment Court pursuant to s 30 of the Environment, Resources and Development Court Act 1993.
The Environment Protection Act
Before noting the issues in this appeal, it is useful to examine the relevant provisions of Part 6 of the Environment Protection Act which relate to the grant and renewal of licences. For present purposes those of particular importance are ss 43 and 45.
It is necessary to note only sub-ss (1) to (5) and sub-s (7) of s 43 which are in these terms:
43.(1) Subject to this Act, an environmental authorisation remains in force for a term determined by the Authority and specified in the authorisation on its grant or renewal.
(2)An application for the renewal of an environmental authorisation must be made to the Authority in such manner and form as is determined by the Authority and must be accompanied by the prescribed application fee.
(3)An application for renewal must be made not less than the prescribed number of days before the date of expiry of the environmental authorisation.
(4)The Authority may, in its discretion, grant a late application for renewal provided that the applicant pays the prescribed late application fee.
(5)Subject to any condition of the authorisation excluding or limiting the right of renewal under this section, an environmental authorisation must be renewed by the Authority on due application under this section and payment of the authorisation fee prescribed or determined under the regulations.
…
(7)The Authority may renew an authorisation on a late application or under subsection (6) despite the fact that the authorisation has expired and, in that event, the renewal has effect from the end of the term for which the authorisation was previously granted or renewed.
It will have been noted that s 43 (5) provides that the Authority must renew a licence subject to any condition to the contrary contained in that licence.
Section 45 invests the Authority with power to impose conditions on a licence. For present purposes it is necessary to note that only sub-ss (1) to (4) of s 45 which are in these terms:
45.(1) The Authority may impose conditions of an environmental authorisation with respect to such matters as are contemplated by this Act or as the Authority considers necessary or expedient for the purposes of this Act.
(2)The Authority may impose a condition on an environmental authorisation, or vary or revoke a condition previously imposed by the Authority, by notice in writing to the person holding the authorisation.
(3)The Authority may impose or vary a condition of an environmental authorisation –
(a)on the granting or renewal of the authorisation; or
(b)at any time –
(i)with the consent of the person holding the authorisation; or
(ii)where the Authority considers that it is necessary to impose or vary the condition in consequence of -
(A)contravention of this Act by the person holding the authorisation; or
(B)risk of material or serious environmental harm; or
(C)the making or amendment of a national environment protection measure; or
(iii)as provided by a condition of the authorisation or a provision of this Act or the regulations under this Act.
(4)The Authority may revoke a condition at any time.
It will have been noticed that s 45 (3) permits the Authority to impose conditions on the grant or renewal of an authorisation or at any time in the circumstances provided in sub-s (3) (b).
Section 46 provides that, if the Authority proposes to vary the conditions of an environmental authorisation, it must first give notice in writing of the proposed variation to the holder of the authorisation.
Section 47 prescribes the criteria for the grant of licences and other environmental authorisations and for determining the appropriate conditions on the grant. There is a question whether s 47 has any application to renewals. However, nothing turns on s 47 which may, therefore, be put to one side.
The Issues
The issues before the Environment Court and on this appeal are
1.whether the licence held by the Council which expired on 31 December 2004 authorised the receipt of waste both for disposal and for recycling or only the reception of waste for disposal;
2.whether the Authority was obliged to renew the Council’s licence to authorise it to conduct recycling and waste transfer operations;
3.whether the renewed licence had to implement and be consistent with the LEMP; and
4.whether the Authority acted unreasonably in imposing the Conditions 13, 19 and 20 upon the licence granted to the Council for the period 1 April 2005 to 30 September 2005.
The Environment Court’s Decision
The Environment Court did not decide whether the licence held by the Council authorised recycling as well as the reception and disposal of waste. Instead, it assumed that it did. The court then held that there were two barriers which prevented the Authority from renewing the licence. The first was that after 31 December 2004 the Council’s operations constituted a new and different activity so that s 43 (5) had no application. The second was that s 6 (6) of the Closure Act applied to future licences for Wingfield and not to renewal of an existing licence. In the course of its reasoning the Environment Court held that a licence to conduct recycling operations did not have to be consistent with the LEMP. For the reasons which follow, the Environment Court erred in concluding that it was not possible for the Authority to renew the Council’s licence authorising it to conduct recycling operations.
The Council’s Licence
The Council contends that its licence which expired on 31 December 2004 entitled it to receive waste for recycling as well as disposal by landfill. It then contends that by reason of s 43 (5) it was entitled to a renewal of that licence authorising its recycling activities. It is, therefore, necessary first to determine what activities were authorised by the Council’s licence which expired on 31 December 2004.
The Council’s licence authorised it “to undertake the following activities of an environmental significance under Schedule 1 Part A of the Environment Protection Act 1993 (the Act), subject to the conditions of licence set out in the attached pages: 3 (3) Waste or Recycling depot”. The numbers “3 (3)” are a reference to para 3 (3) of Schedule 1 of the Environment Protection Act which describes the activity of “waste or recycling depots” as being “the conduct of a depot for the reception, storage, treatment or disposal of waste” other than certain exceptions which are then listed. It is unnecessary for present purposes to consider those listed exceptions.
There are at least two routes which lead to the conclusion that the Council’s licence authorised it to conduct the activity of recycling waste as well as waste disposal.
The prescribed activities of waste or recycling depots are described in para 3 (3) of Schedule 1 of the Environment Protection Act to be “the reception, storage, treatment or disposal of waste”. In ordinary parlance, a waste depot is a place where the activities of reception, treatment and disposal of waste occurs. Recycling is an activity which falls within both the expression “treatment of waste” and “disposal of waste”. Unless the Authority imposed conditions preventing recycling, it would be included as one aspect of the operations of a waste depot.

An examination of the recent history of this licence also confirms the conclusion that the licence authorised the Council to conduct both a waste and recycling depot. Since 1998, the Council has, to the knowledge of the Authority, been conducting recycling at Wingfield. The evidence discloses that, until 31 December 2004, most of the recycled material was used at Wingfield. A small part, mainly scrap metal, was sold for use elsewhere. There was a substantial body of evidence in the Environment Court which demonstrated that the Authority was fully aware of the recycling operations conducted by the Council. Not only was that apparent from the evidence of officers of the Authority who were called as witnesses but it was also apparent from the terms of the LEMP which, at a number of points, refers to the recycling operations being conducted by the Council. The Authority was involved in the preparation of the LEMP, which was later adopted by the Minister. Given this knowledge of the Authority, it can hardly be said that a licence for a waste or recycling depot did not authorise recycling.
In addition, for the reasons which follow the word “or” in the expression “waste or recycling depot” in the licence has been used conjunctively.
The first thing to be noticed about the licence is that it authorises “activities” not an activity. The use of the plural suggests that both waste and recycling are authorised by the licence. Secondly, although para 3 (3) of Schedule 1 refers to waste or recycling depots in the alternative, it is not appropriate for a licence to be expressed in the alternative because the question immediately arises whether the licence authorises one or both of the named activities and, if only one, which?
In ordinary usage, the word “and” is used conjunctively and the word “or” is used disjunctively. However, it is well settled that if an unintelligible or absurd result follows from construing those words in that way, the courts will read the word “or” conjunctively and read the word “and” disjunctively: Federal Steam Navigation Co Ltd v Department of Trade & Industry [1974] 1 WLR 505 per Lord Salmon at 523 – 524. There might be some debate as to the technique by which that is done, that is to say, whether it is by substitution or by adopting a secondary meaning: compare the speeches of Lord Reid at 508 – 509 and Lord Salmon at 523 – 524 in Federal Steam Navigation. Whatever technique is adopted the same result is reached. Plainly, regard must be had to the context to determine the true meaning: see Sir George Jessel MR in Morgan v Thomas (1882) 9 QBD 643 at 645; R F Brown & Co Ltd v Harrison (1927) 43 TLR 633 per Atkin LJ at 639 and Ormerod v Blaslov (1989) 52 SASR 263 at 269 – 271. In Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 at [12] – [16] the question whether the word “and” was to be construed conjunctively or disjunctively was determined by reference to the context. The purpose always is to ascertain the intention of the person who prepared the document.
The use of the expression “waste or recycling depots” in Schedule 1 of the Environment Protection Act permits the Authority to grant a licence authorising one or both of those activities. However, the expression “waste or recycling depot”, when used in a licence to name the prescribed activities which are authorised by the licence, is unintelligible unless the word “or” is used conjunctively. As stated earlier, if the word “or” is read disjunctively, the licensee does not know which of the two activities he is authorised to conduct. It is, of course, possible for the Authority to impose conditions so as to limit the kind of activities which might be conducted. However, the Council’s licence did not contain conditions which prohibited recycling. Indeed, the conditions attached to the licence were consistent with both the receipt of waste for disposal and the receipt of waste for recycling, particularly as a number of the conditions of the licence were capable of applying to both activities. Examples are Conditions 1, 2, 3, 5, 8, 10, 11, 12, 14, 15, 16 and 17. Given that the licence authorised both activities, the Authority could prevent recycling only if it imposed a condition stating that recycling was not permitted. For these reasons, when the Authority granted the Council a licence to conduct the prescribed activities of waste or recycling depot, the licence authorised the Council to conduct both waste disposal and recycling. Thus, however the licence is interpreted, it authorised recycling.
It is unnecessary to rely on the terms of sub-s (3) of s 6 of the Closure Act which provides that, on the application of the Council, the Authority must grant or renew a licence authorising the use after 31 December 2000 of Wingfield as a depot for the reception and disposal of waste. In all of the other sub-sections of s 6, the word “or” is used in either a disjunctive or distributive manner. That does not mean that “and” in sub-s (3) is not to be read conjunctively. As there are other routes by which the meaning of this licence is readily understood, it is unnecessary to rely on sub-s (3).
The Solicitor-General applied to tender two bundles of documents. The purpose was said to be to provide the Court with a complete history of the applications and licences issued. The first was all of the applications made by the Council to the Authority from 13 May 1995, just before the Environment Act came into force, until 20 February 2004. The second was all of the licences issued by the Authority from 19 January 1996 to 12 May 2003. Although this Court has a discretion to receive further evidence on an appeal, the party seeking to tender the evidence must show that the evidence could not have been obtained with reasonable diligence in the court below, that the evidence would probably have had an important influence on the result, and the evidence must be apparently credible: Footersville Pty Ltd v Miles (1986) 41 SASR 211. The Solicitor-General relied on principles expressed in CDJ v VAJ (No 1) (1998) 197 CLR 172 but they have no application in this case.
No satisfactory reason has been advanced to show why these documents could not have been tendered at the hearing in the Environment Court. They are simply documents extracted from the files of the Authority and could as readily have been produced in the Environment Court as they were on the appeal in this Court. The Authority’s submission that the appeal came on very quickly in the Environment Court is not a credible explanation for failing to tender the documents in the Environment Court. It is evidence which could have been available in the Environment Court. In addition, the evidentiary value of the documents, standing alone, is very questionable. Although an application will often assist in determining what is the subject of the grant, the Council’s applications do not assist because they do not describe the nature of the activities to be licensed. They appear to assume a knowledge on the part of the Authority as to the activities at Wingfield. The better means of determining what activities were authorised by each licence is to examine the terms of the licence and the evidence of what the Authority knew as the activities of the Council at Wingfield. In this connection it is relevant to note that the evidence discloses that there have been many discussions between officers of both the Council and the Authority from time to time over the whole period during which the Council has held a licence. In addition, the documents do not present the whole of the picture. The Council had previously held licences under the Waste Management Act, the statutory predecessor of the Environment Protection Act. A great deal of oral evidence would have been required to explain these documents. It is not possible, therefore, to be satisfied that they provide a complete or unequivocal picture. For all these reasons these documents should not be admitted.
For these reasons the licence which was to expire on 31 December 2004 authorised the Council to conduct both a waste and recycling depot.
An Obligation to Renew?
Section 43 (5) of the Environment Protection Act obliges the Authority to renew a licence except where there is a condition excluding or limiting the right of renewal. The Council held a licence for a waste and recycling depot which was to expire on 31 December 2004. None of the conditions of that licence excluded or limited the entitlement of the Council to renew its licence. On 14 October 2004 the Council applied for a renewal of that licence. By reasons of the terms of s 43 (5) of the Environment Protection Act, the Authority was obliged to renew the licence. When renewing the licence, the Authority was at liberty to vary the conditions of the licence: s 45 (3) of the Environment Protection Act.
Thus, upon receiving the Council’s application to renew, the Authority was obliged to renew the licence and had power to vary the conditions of the licence. However, because of s 5 of the Closure Act, the Authority was also obliged to comply with s 6 of the Closure Act which by sub-s (5) prohibited the grant or renewal of a licence to authorise the use of Wingfield after 31 December 2004 as a depot for the reception or disposal of waste but by sub‑s (6) did not prevent the Authority from granting, renewing or varying a licence to use Wingfield as a depot for the reception of waste for recycling or waste transfer purposes.
It is apparent from the terms of ss 5 and 6 of the Closure Act that Parliament did not intend to repeal s 43 (5) of the Environment Protection Act or to render it entirely inoperative. This is an instance of two Acts which are partly inconsistent, with the consequence that s 43 (5) must be read as being subject to s 6 and, in particular, to sub-ss (4), (5) and (6) of that section. In Saraswati v The Queen (1991) 100 ALR 193 at 204 Gaudron J expressed the principle in these terms:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vic) (1961) 106 CLR 268, per Fullagar J at 276, and per Windeyer J at 290.
Thus, s 43 (5) must be read as subject to s 6 of the Closure Act. Alternatively, this is an instance of a special and later Act qualifying the operation of an earlier and general Act. As O’Connor J noted in Goodwin v Phillips (1908) 7 CLR 1 at 14:
Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.
It is a question of determining whether the later Act has pro tanto abrogated the other: Cobiac v Liddy (1969) 119 CLR 257 at 268. By either route, the same result is reached. The operation of s 43 (5) of the Environment Protection Act must be read subject to the terms of s 6 of the Closure Act. Thus, although s 43 (5) of the Environment Protection Act obliged the Authority to renew the Council’s licence, the Authority could not renew the licence in terms which would authorise the Council to use Wingfield as a depot both for the receipt and disposal of waste and for recycling. The Authority, nevertheless, had the power to vary the conditions of the licence so that the Council could continue its recycling activities at Wingfield after 31 December 2004 but could not continue its waste disposal activities. That is the consequence of the combined operation of s 43 (5) of the Environment Protection Act and s 6 of the Closure Act. Given that the Council had applied some 2½ months before the licence was due to expire on 31 December 2004, there was ample time within which the Authority could have complied with s 46 of the Environment Protection Act, assuming that s 46 applies to the variation of conditions upon renewal of a licence. It is unnecessary in this case to decide that question. Expressed another way, the Authority was obliged by s 43 (5) to renew the Council’s licence which expired on 31 December 2004 but, by reason of s 6 of the Closure Act, was obliged also to vary the conditions so that the Council would be authorised to use Wingfield only as a depot for the reception of waste for recycling or waste transfer purposes.
The Solicitor-General contended that the recycling activities conducted at Wingfield before 31 December 2004 were of a lesser scale than those which the Council intends to conduct in the future. He added that the Council intends to sell or otherwise dispose of a greater proportion of recycled material than it had before 31 December 2004. He, therefore, submitted that the Council was not entitled to renewal of a licence to authorise it to receive waste for the intended recycling operations because the Council had not been extensively conducting those activities before 31 December 2004. There was some argument as to the extent of recycling before 31 December 2004 but, even assuming those facts, that submission must fail. A licence issued by the Authority authorises the licensee to conduct a prescribed activity of environmental significance: s 36 of the Environment Protection Act. In the absence of any conditions to the contrary imposed on the licence, the licensee is at liberty to conduct that activity either extensively or to a limited degree. The extent to which the activities are conducted is a matter entirely for the licensee to determine provided the licensee complies with the conditions of the licence. If already conducting the prescribed activity, the licensee is at liberty to increase the extent to which it conducts that activity. It remains the same prescribed activity notwithstanding that the activity is conducted in a more intensive manner.
The Council was authorised to conduct the activities of recycling and waste transfer. The fact that those activities were not a large part of its activities does not prevent it from increasing its conduct of those activities. It must be remembered that the licence authorises the licensee to conduct prescribed activities and, in the absence of a condition limiting the extent of those activities, the licensee is at liberty to conduct the activity to whatever extent it chooses. There was no condition limiting the extent to which the Council could conduct recycling or waste transfer operations. So long as the Council had a licence to conduct the authorised activities, it is irrelevant to enquire as to the extent to which it was conducting them. This conclusion does not mean that the Council will not be subject to appropriate environmental constraints as to the manner in which it conducts the activities. It must be remembered that s 45 (3) (ii) invests the Authority with power to impose or vary conditions at any time when it considers it necessary to prevent the risk of material or serious environmental harm. In this way the Authority is able to take appropriate action if it believes that the conduct of the authorised activities is causing environmental harm. The Authority can also exercise control by other means. One example is environment protection orders under s 93. Another practice of the Authority also assists enforcement. It is to grant a licence for short periods. It has been the practice of the Authority to grant the Council a licence for periods of about 12 months or less. In that way, the Authority has the capacity to place a tight rein over the authorised activity.
The Environment Court held that a licence which authorised receipt of waste for recycling was a different kind of licence from a licence for the receipt of waste for both disposal and recycling. It said that it would be a different and therefore new licence, not the renewal of a licence, and so would require a fresh assessment. It also held that the land use would be different and would require assessment under the Development Act 1993. This analysis is flawed. Firstly, it fails to give due weight to the obligation to renew in s 45 (3) of the Environment Protection Act as modified by s 6 of the Closure Act. The Authority had no alternative but to renew the Council’s licence but was constrained by the Closure Act to vary the conditions to limit the prescribed activity to recycling. It also fails to acknowledge that a licence to conduct an activity authorises the licensee in its discretion to conduct that activity to a greater or lesser extent so long as the licensee complies with the conditions of the licence.
Furthermore, there is no change in land use. In some instances where land is being used for more than one purpose, an intensification of one of those uses may result in a change of the use of that land. Whether it does is a question of fact depending upon the extent to which the use has been intensified. The principles are examined in such cases as Shire of Perth v O’Keefe (1964) 110 CLR 529; Guildford Rural District Council v Fortescue & Penny [1959] 2 QB 112 at 125; Franconi v Shire of Perth [1965] WAR 37 and Norman v Gosford Shire Council (1975) 132 CLR 83. However, this is not such a case. If a person intensifies a use for which development consent has been granted, the use may continue provided that there is compliance with all of the conditions of the consent. That person is intensifying a licensed activity. However, in doing so, it is liable to more stringent controls than exist under a development consent. By contrast, if the holder of a licence under s 36 of the Environment Protection Act intensifies an authorised use with adverse environmental consequences, the Authority is able to act pursuant to s 45 (3) (b) to vary the conditions of the licence in order to effect whatever additional controls or safeguards are necessary. In short, the Authority can intervene to take remedial action notwithstanding that in all respects the licensee is complying with the conditions of the licence. By contrast, a planning authority cannot intervene if the holder of the development consent is complying with the conditions of the consent.
Similarly, the fact that the Council’s activities at Wingfield will be changing from waste disposal and recycling to recycling does not constitute a change of use which requires assessment under the Development Act. The principles in Shire of Perth v O’Keefe and like cases apply with equal force. Differences of a quantitative rather than of a qualitative nature do not constitute a change of use: Willoughby Municipal Council v F G Nissen Pty Ltd (1965) 13 LGRA 106 at 113 – 114. It is a question of fact and degree and the principles for determining whether there has been a change of use should not be converted to hard and fast rules: see Wells J in Prestige Car Sales Pty Ltd v Town of Walkerville (1979) 20 SASR 514 at 522. Wingfield is a very large waste facility. The change in the Council’s operations is not of such a degree as to constitute a change of use.
The Environment Court also held that s 6 (6) applied only to future licences and not to the renewal of an existing licence. This reasoning too is flawed. First, there is nothing in sub-s (6) which justified that conclusion. Secondly, the power of the Authority to renew licences is provided in s 43 of the Environment Protection Act, not in s 6 of the Closure Act. Although s 6 prohibits the Authority from granting a particular kind of licence after 31 December 2004, it does not in any respect invest the Authority with the power to grant or renew licences.

For these reasons, the Council held a licence which expired on 31 December 2004, which authorised it to conduct the prescribed activities of a waste and recycling depot. The licence was not subject to a condition restricting the right of renewal. The Authority was, therefore, obliged by s 43 (5) of the Environment Protection Act to renew that licence but was obliged by s 6 of the Closure Act to vary the conditions of the licence so as to limit the activities authorised by that licence to the reception of waste for recycling or waste transfer purposes. The Authority has failed to renew the Council’s licence to permit it to conduct those activities. The Council is entitled to a renewal of its licence which expired on 31 December 2004 to permit its recycling activities.
Expressed another way, as there was no condition to the contrary in the Council’s licence which expired on 31 December 2004, the Authority was required by s 43 of the Environment Protection Act to renew the Council’s licence. Nothing in s 6 of the Closure Act negates the obligation of the Authority to renew that licence but, instead, qualifies that obligation. As the Council’s licence authorised it to conduct recycling as well as waste disposal, the Authority was required to vary the conditions of the Council’s licence to authorise it to continue to conduct its recycling activities.
This conclusion is not in any way affected by the invalid conditions attached to the licence issued on 13 January 2005. It is common ground that some of the conditions attached to the licence granted by the Authority on 13 January 2005 for the period 1 January to 31 March 2005 were invalid in that they authorised activities prohibited by s 6 (4) of the Closure Act. The Council contended that the invalid conditions were severable. The Authority contended that the conditions could not be severed so that the entire licence was invalid. It added that there was no prejudice to the Council because the licence granted in January 2005 was a nullity with the consequence that what was being renewed was the licence which had expired on 31 December 2004 and, by reason of s 43 (7), the Authority had the power to renew a licence notwithstanding that it had expired. It is unnecessary to determine which contention is correct since each leads to the same result, namely, that the invalid conditions do not prevent the Council from obtaining a renewal of its licence which expired on 31 December 2004.
Consistency with the LEMP?
The next question is whether a licence granted or renewed after 31 December 2004 must be consistent with the LEMP. In some respects, this is a false issue in that a licence expiring on 31 December 2004 and renewed thereafter will contain the same terms and conditions unless they are varied by the Authority. In addition, as noted later in these reasons, the Authority might be able to impose conditions to protect the environment which implement the LEMP. However, if the Authority does not have power to insist upon conditions which implement the LEMP, that will be relevant in determining an appeal against conditions which purport to implement the LEMP.
Section 6 (4) is the only provision of the Closure Act which requires that a licence must implement and be consistent with the LEMP. However, it is apparent from a consideration of s 6 as a whole, and in particular sub-ss (3) and (4), that the expression “the licence” in sub-s (4) refers to a licence authorising the use of Wingfield as a depot for the reception and disposal of waste. It is a licence of the kind which must expire on 31 December 2004. There is no other provision in s 6 of the Closure Act which requires that a licence granted or renewed after 31 December 2004 should implement and be consistent with the LEMP. Section 6 (6) is the provision in the Closure Act which deals with the position after 31 December 2004. It does no more than state that the Closure Act does not prevent the Authority from granting, renewing or varying a licence to conduct those activities at Wingfield. It does not provide that on grant or renewal a licence must implement and be consistent with the LEMP. Section 43 is the provision which invests the Authority with power to review a licence, not s 6 (6) of the Closure Act. The power to review in s 43 is subject to the terms of the Closure Act. There is nothing, therefore, in the Closure Act which requires that a licence renewed after 31 December 2004 should be consistent with the LEMP.
If it had been intended that a renewed licence should implement and be consistent with the LEMP, Parliament could have easily said so in the Closure Act. Given that the power to grant or renew a licence in s 43 of the Environment Protection Act is widely expressed, any limitation upon that power must be express or be a necessary implication of legislation. In the absence of such a limitation, the Court cannot impose one.
The Solicitor-General submitted that s 6 should be construed so as to give effect to what he described as the manifest purpose of s 6, namely, that a licence authorising those activities at Wingfield should be consistent with the LEMP. The submission must fail for the reasons already expressed. The submission also assumes too much as to the purpose of the LEMP. The object of the Closure Act is to provide for the closure of the Council’s waste depot at Wingfield in an environmentally acceptable manner and to limit the height of the solid waste fill. The provisions of the Closure Act are directed to that end. It expressly provides that the Council cannot continue to use Wingfield as a depot for the reception or disposal of waste after 31 December 2000 unless it prepares an LEMP which is adopted by the Minister. The LEMP is primarily directed to the question of how Wingfield can be used for the reception and disposal of waste until 31 December 2004 and closing down that activity in an environmentally acceptable way. Although the Act requires the LEMP to deal with expected uses after closure, it does not require the LEMP to address the question of recycling and waste transfer stations and the environmental consequences of those operations. Thus, it is not possible to infer from s 6 any intention that a licence authorising recycling and waste transfer should be consistent with the LEMP.
An examination of the LEMP confirms that conclusion. Although the LEMP refers to existing recycling activities (on occasions referring to them as “resource recovery operations”) and contemplates recycling after Wingfield has closed as a depot for the receipt and disposal of waste, future recycling is to be the subject of what is called a “Post Closure Master Plan”. A so-called conceptual Post Closure Master Plan was prepared as part of the LEMP. It is Appendix F to the LEMP. The Post Closure Master Plan states that future activities will include a recycling centre but, apart from stating that there should be separate vehicular access to the recycling centre, it says nothing as to the manner in which those activities will be conducted. The Post Closure Master Plan states that the recycling centre will be at the western end of the Wingfield site and Appendix F includes a conceptual plan which shows what is called “a potential recycling area” at the western end of the site. However, there is nothing binding or prescriptive about the Post Closure Master Plan. As the LEMP states, it is no more than a conceptual plan and as such is liable to future amendment. The position was correctly summarised by the Environment Court in these terms:
⁴⁴However, the LEMP must be seen for what it is. The LEMP was largely directed to addressing and managing the environmental impacts of the landfill. It anticipated the preparation of a post-closure master plan, a post-closure plan and final capping design and methodology. It is these anticipated documents that seem to have been intended to govern management of the site after closure of the landfill; not the LEMP. The post-closure plan and the Landfill Capping Plan should have taken over from the LEMP, once the landfill was closed. Logically, and having regard to the contents of the LEMP, it was not intended to be relevant after the cessation of the landfill operation as it was intended to be superseded by other documents based on what had actually occurred and the results of monitoring and measurements at the site, together with any relevant new scientific or technical knowledge.
Furthermore, there are two other documents which were neither before the Environment Court nor this Court. They are the Wingfield Waste Management Centre Closure Plan and the Post Closure Plan. Those documents might alter the conceptual plan which is attached to the Post Closure Master Plan. Another relevant document is the Wingfield Waste Management Centre Environmental Statement, which was tendered in the Environment Court. It includes a plan showing recycling at the western end and on the northern side of the Wingfield site. The status of the document is not clear. That part of the report which deals with storm water management has been used by the Minister to amend the LEMP pursuant to s 13 of the Closure Act. There is an unresolved question whether the balance of the document has been agreed with the Authority. Although the status of the document is uncertain, it raises further questions as to the present form of the Post Closure Master Plan or the effect of any other document upon the terms of the Post Closure Master Plan.
For all of these reasons, the renewed licence did not have to implement or be consistent with the LEMP.
This conclusion does not mean that the Authority is unable to impose conditions which are necessary to prevent harm to the environment and which might reflect provisions in the LEMP. One question before the Environment Court was whether the LEMP precludes recycling operations on top of the uncapped landfill. The Environment Court correctly noted that the LEMP is not, and was not intended to be, the last word in relation to the management of the site after it has been closed. Other documents deal with capping. Regard will have to be had to all relevant documents and to the scientific and technological evidence when imposing conditions.
Conclusion
For all of these reasons, the Environment Court erred in concluding that the Authority was not able to renew the Council’s licence permitting it to conduct its intended recycling operations. The appeal must therefore be allowed. Condition 13 which prevents the Council from conducting its recycling operations is invalid and must be set aside.
The Council was entitled to renewal of its licence to permit it to continue its recycling activity. The Authority should have renewed the application before 31 December 2004. One can only agree with the observations of the Environment Court that it is “both alarming and disappointing” that the licence was not renewed before 31 December 2004, particularly when the question of renewal had been discussed some three months earlier between the Council and the Authority. If the Authority had sought to impose conditions, it could have done so upon the renewal of the licence.
Mr Hayes QC, who appeared for the Council, submitted that this Court should make orders allowing the appeal, setting aside the order of the Environment Court and deleting Conditions 13, 19 and 20 from the licence. He submitted that, if the Authority believed that other conditions were required, the Authority was at liberty to add conditions in the exercise of its power in s 45 (3) of the Environment Protection Act to vary the conditions of an environmental authorisation at any time where there was a risk of material or serious environmental harm. The Solicitor-General opposed that course, submitting that the appeal should be remitted to the Environment Court for the imposition of conditions.
There may be environmental issues as to what is the appropriate part of the Wingfield site for the location of a recycling operation, whether the recycling operation can be located on different parts of the site at different times, and questions as to the appropriateness or otherwise of locating a recycling operation on uncapped landfills. In addition, the Environment Court has not dealt with the question whether the Council’s appeal against Conditions 19 and 20 should be allowed. This might suggest that this Court should do no more than allow the appeal, declare Condition 13 to be an invalid condition, and remit the matter to the Environment Court for determination in the light of these reasons.
However, there are other factors which justify this Court in setting aside Conditions 13, 19 and 20 and permitting the Council to conduct its recycling operations. A number of the conditions in the present licence prevent environmental damage. The Authority has the power in s 45 (3) (b) to impose further conditions, if necessary, to deal with adverse environmental effects.
The Council is not seeking to use Wingfield for a purpose which falls outside the LEMP. To the contrary, recycling is an activity which is expressly contemplated by the LEMP as well as by the Post Closure Master Plan. Furthermore, the Council is not establishing a new use but is continuing a use which it was lawfully conducting at Wingfield, although it must be acknowledged the Council intends to increase the scale of that use. The Council is unable to continue the recycling activities it was authorised to conduct before 31 December 2004 because of delays occasioned by this appeal. In addition, this licence will expire on 30 September next. If the Council applies to renew the licence, the Authority is at liberty to vary the conditions on the renewal. It is extremely unlikely that adverse environmental consequences will occur in the next three months. Even if it did, the Authority has power under s 45 (3) (b) to vary the condition to meet any risk of material or serious environmental harm. These factors all point to the desirability of allowing the appeal and permitting the Council to continue its recycling activities.
The evidence shows that the risk of environmental harm from the Council’s recycling operations is low. I repeat, the Authority can impose further conditions if it identifies a risk of environmental harm. Condition 19 is unnecessary. Condition 20 is unreasonable in that it imposes an obligation quite beyond what is necessary. It would even prevent the Council from deciding to use an extra truck or lorry or article of earthmoving equipment. It restricts the ability of the Council to conduct its operations to quite an unreasonable degree. It is sufficient for the Authority to achieve its object if the Council is required to give not less than 14 days notice in writing of an intention to construct or alter a building or structure or to install any additional plant or equipment, giving particulars of its intentions. The Authority is then in a position to impose any conditions which might be necessary to prevent an increase of emissions or the discharge of pollutants. I would impose a condition to that effect.
On balance, I believe that the proper course is to allow the appeal and remove Conditions 13 and 19 from the licence. The Council can continue its recycling and, if it is necessary, the Authority can later impose appropriate conditions. An amended Condition 20 can be substituted. Conditions 13, 19 and 20 are severable so that the grant of the licence is not jeopardised.
VANSTONE J. I have had the advantage of reading the reasons in draft of Debelle J. He has set out the factual and statutory context in which this appeal is to be determined. I agree that the appeal should be allowed and, in general terms, with his conclusions as to the issues before us. For the purpose of what follows I adopt the abbreviations used by His Honour.
In particular I agree that if prior to 31 December 2004 the operator (the Council) held an environmental authorisation to recycle at Wingfield, then under s43(5) Environment Protection Act, it was entitled to a renewal of that authorisation.
As to whether such an authorisation was in force, the face of the licence of 28 April 2004, which expired on 31 December 2004, is uninformative. As Debelle J has observed, it purported to authorise “the following activities of environmental significance … 3(3) Waste or Recycling depot”. That wording is imported from the list of such activities contained within Schedule A of the Environment Protection Act. It is simply a heading. Nor do the conditions attached to that licence assist in further characterising it. They do not specifically refer to recycling, but that is not decisive.
The matter might have been elucidated by examining the predecessors of the most recent application and licence which the Respondent sought to place before us. But that material was not presented in the court below and does not amount to fresh evidence. For that reason I agree that this Court should not admit it.
Inasmuch as it is clear that, to a degree at least, the Council was undertaking recycling prior to the end of 2004, and that the Authority was aware of that fact, I do not consider that the ambiguity in the form of the licence should – at least at this stage in these proceedings – be held against the Council.
I further agree that the Closure Act does not require that a licence granted after the end of 2004 comply with the LEMP.
It follows that, in my view, Condition 13 of the licence under appeal must be set aside as it is inconsistent with the Council’s right to a renewal of its authorisation to recycle. However, that leaves the question of what are the conditions appropriate to the recycling operation now to be continued. That is a particular concern where it is suggested that the operation has been taking place on uncapped landfill. The matter of conditions is not one which this Court can, in my view, adequately determine. Additionally, the Council’s appeal, so far as it relates to Conditions 19 and 20, has not been dealt with, that having been considered unnecessary on the analysis of the Environment Court.
Accordingly, I consider the matter should be remitted to the Environment, Court for further consideration of the conditions appropriate to the licence, including via further evidence, if that is seen to be necessary.
ANDERSON J.I have read the reasons in draft of Debelle J and I agree that the appeal should be allowed for the reasons expressed by him.
I agree also with the comments made by Vanstone J in her draft reasons.
In particular, it is my view, for the reasons expressed by Vanstone J, that the matter should be remitted to the Environment Court for further consideration of the appropriate licence conditions.