Corporation of the City of Adelaide v Circelli - [2017] SASCFC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CORPORATION OF THE CITY OF ADELAIDE v CIRCELLI
[2017] SASCFC 12
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Lovell and The Honourable Justice Hinton)
20 February 2017
ENVIRONMENT AND PLANNING - POLLUTION - WASTE DISPOSAL - REGULATION - LICENSING - CONDITIONS
ENVIRONMENT AND PLANNING - POLLUTION - WASTE DISPOSAL - OFFENCES - PARTICULAR OFFENCES
Appeal against conviction.
The appellant was convicted by a Judge of the Environment Resources and Development Court of two counts of contravening a condition of an environmental authorisation.
The appellant operated a waste or recycling depot at Wingfield pursuant to a 2007 environmental authorisation subject to conditions. Condition 6 required it to construct a cap on areas of the land in accordance with a capping plan prepared in 2003 and specifications contained in the condition. Condition 7 required completion of the cap by 31 October 2012 and at least 20% of the capping to be completed each year commencing from the date of the licence. Condition 8 provided that, if the appellant did not wish to implement the capping design referred to in condition 6, the appellant must develop a capping design specification to the satisfaction of the Environment Protection Authority; after approval, implement the specification; complete the construction of the cap by 31 October 2012 and ensure that at least 20% of the capping was completed each year from the commencement of the licence.
On 17 October 2008, the appellant informed the Authority that it intended to lodge alternative capping designs and on 19 December 2008 and 15 September 2010 it proposed alternative capping designs for 15 ha of the site.
Subsection 6(5) of the Wingfield Waste Depot Closure Act 1999 (SA) provided that an environmental authorisation must not be granted so as to authorise the use after 31 December 2004 of the land as a depot for the reception or disposal of waste. This prohibition was subject to subsection 6(6) permitting authorisation of use as a depot for the reception of waste for recycling or waste transfer purposes.
The appellant advanced two defences, namely that the relevant condition of the environmental authorisation was invalid as contrary to section 6 of the Wingfield Waste Depot Closure Act 1999 (SA) or alternatively condition 6 had been superseded by steps taken pursuant to condition 8.
In respect of the appellant’s first defence, the Judge held inter alia that clean fill and building rubble brought to the site to construct the cap would not have comprised waste. In respect of the second defence, the Judge held inter alia that the obligation under condition 6 was not superseded by the appellant’s indication that it did not wish to construct the cap in accordance with the 2003 capping plan or the lodgement of alternative capping designs but only on implementation of an alternative capping design.
The appellant appeals on grounds that the Judge erred in rejecting each defence.
Held by Blue J (Lovell and Hinton JJ agreeing):
1. Under the first limb of the definition of “waste” in the Act, waste is a purposive and relative concept. Material that was formerly waste may be converted from waste into a product. In many cases, it will be a question of fact and degree to determine the point at which waste has changed its character and become a product (at [53]-[55]).
2. Assuming that soil and clay brought onto the land for the purpose of constructing the cap was or previously had been waste, it would have been brought onto the land for recycling purposes and excluded by subsection 6(6) from the operation of subsection 6(5) of the Wingfield Waste Depot Closure Act (at [75]).
3. On the proper construction of conditions 6, 7 and 8, conditions 6 and 7 continue to govern the appellant’s obligations to construct a cap unless and until the Environment Protection Authority approves an alternative capping design under condition 8 (at [85]).
4. Appeal dismissed (at [89]).
Environment Protection Act 1993 (SA) s 3, s 27, s 36, s 40, s 45, s 103K, s 131, sch 1; Wingfield Waste Depot Closure Act 1999 (SA) s 3, s 6; Environment Protection (General) Regulations 1994 (SA); Environment Protection Regulations 2009 (SA), referred to.
Evangelista v Development Assessment Commission (2004) 136 LGERA 180; ResourceCo Pty Ltd v Environment Protection Authority [2007] SAERDC 31, discussed.
Corporation of The City of Adelaide v Environment Protection Authority (No 2) [2005] SAERDC 29, considered.

CORPORATION OF THE CITY OF ADELAIDE v CIRCELLI
[2017] SASCFC 12
Full Court: Blue, Lovell and Hinton JJ

BLUE J: This is an appeal against conviction.
The appellant, the Corporation of the City of Adelaide (the Council), was charged on complaint by the respondent, Tony Circelli (Deputy Chief Executive of the Environment Protection Authority), in the Environment Resources and Development Court with four counts of contravening a condition of an environmental authorisation.[1]
[1] Environment Protection Act 1993 (SA) section 45(5).
The Council pleaded not guilty and advanced three defences. First, the relevant condition of the environmental authorisation (condition 6) was invalid as contrary to section 6 of the Wingfield Waste Depot Closure Act 1999 (SA) (the Wingfield Closure Act). Secondly, condition 6 had been superseded by steps taken pursuant to condition 8. Thirdly, counts 1 and 2 were statute barred as being out of time.[2]
[2] Environment Protection Act 1993 (SA) section 131(2).
A Judge of the Environment Court found the elements of all four counts proved and rejected the first two defences advanced by the Council. However, the Judge found that counts 1 and 2 were statute barred. The Judge found the Council guilty of counts 3 and 4.
The Council appeals against the finding of guilt, contending that the Judge erred in rejecting its first two defences.
Background
The Council was at all material times the owner of 78 hectares[3] of land at Wingfield (the Land). The Council used the Land as a waste or recycling depot.
[3] All areas referred to herein are rounded to the nearest hectare.
In May 1995, the Environment Protection Act 1993 (SA) (the Environment Protection Act) came into operation. Since then, section 36 of the Environment Protection Act has prohibited the undertaking of “prescribed activities of environmental significance” except as authorised by an environmental authorisation in the form of a licence under Part 6 (a licence). Schedule 1 has defined “prescribed activities of environmental significance” to include as item 3(3) the conduct of a waste or recycling depot, namely a depot for the reception, storage, treatment or disposal of waste (subject to prescribed exceptions) (a waste depot).[4] Section 40 has empowered the Environment Protection Authority (the Authority) to grant a licence and section 45 has empowered it to impose conditions of a licence.
[4] A “waste or recycling depot” referred to in item 3(3) is a composite concept. Recycling falls within the expression “reception, storage, treatment or disposal of waste”: City of Adelaide v Environment Protection Authority [2005] SASC 221, (2005) 139 LGERA 211 at [22] per Debelle J (with whom Vanstone and Anderson JJ agreed). For economy of expression, I refer to the composite concept simply as a “waste depot”.
The Council held a succession of licences issued by the Authority under section 36 of the Environment Protection Act authorising it to conduct a waste depot.
On 6 May 1999, the Wingfield Closure Act came into operation. Its objects were to provide for the closure of the Wingfield waste depot in an environmentally acceptable manner, provide for the preparation of a Landfill Environmental Management Plan (LEMP) setting out requirements in relation to the closure, and restrict the height of the landfill at the depot to 27 metres (Australian Height Datum). Part 2 (section 6) prevented, subject to an exception, a licence authorising the use of the Land as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste after 31 December 2000. The exception permitted the grant of a licence up to 31 December 2004 authorising the use of the Land for the proscribed purposes provided that by 6 May 2000 the Council prepared and the Minister adopted a LEMP under Part 3 of the Wingfield Closure Act. Section 6 did not prevent the grant of a licence authorising the use of the Land as a depot for the reception for recycling or waste transfer purposes, storage or treatment of waste after 31 December 2004.
In May 2000, URS on behalf of the Council prepared a LEMP (the Management Plan) for the Land. The Management Plan provided, inter alia, for the construction of a cap to reduce the potential for infiltration of water, generation of leachate, uncontrolled erosion, pest and vermin access to waste, and to contain landfill gas. The cap was to comprise an underlying compacted clay barrier layer (the clay layer) and an upper compacted soil vegetative cover layer (the soil layer). Option A was identified as comprising a 0.6 metre clay layer overlaid by a 0.9 metre soil layer.
On 6 May 2000, the Management Plan was adopted by the Minister. As a result, the Authority renewed the Council’s licence to conduct a waste depot until 31 December 2004.
As at 2000, a cap had been constructed around the perimeter of the Land comprising 12 hectares. Four hectares of the Land comprised a stormwater pond. The Authority expected the Council to cap the balance of the Land (that is an area of 62 hectares) in accordance with the Management Plan.
In January 2003, URS on behalf of the Council prepared a Landfill Capping Plan (the Capping Plan) for the Land. The Capping Plan adopted option A from the Management Plan. The material for the 0.6 metre clay layer was to be sourced from clean clay fill. The material for the lower 0.75 metres of the 0.9 metre soil layer was to be sourced from clean general fill and for the upper 0.15 metres was to be sourced from processed mulch. The majority of the clean fill was to be sourced from major earthworks projects (implicitly excavating clay and soil as by-products to development). The Capping Plan envisaged that alternatives to the nominated materials for capping layers may be adopted in certain circumstances and subject to certain conditions. The Capping Plan included a detailed construction methodology in Table 3.1.
In 2004, the Council granted a lease to Adelaide Resource Recovery Pty Ltd (ARR) over 20 hectares of the Land. Five hectares was to be used by ARR as a recycling processing area (the 5 ha ARR area) and 15 hectares was to be used by ARR as a storage/stockpile area (the 15 ha ARR area).
In March 2005, the Authority issued to the Council a licence to conduct a waste depot up to 30 September 2005 subject to conditions. In April 2005, the Environment Court dismissed an appeal by the Council against the conditions.[5] In June 2005, this Court, in City of Adelaide v Environment Protection Authority,[6] upheld the Council’s further appeal and remitted the matter to the Environment Court to consider variation of the conditions.
[5] Corporation of The City of Adelaide v Environment Protection Authority (No 2) [2005] SAERDC 29.
[6] (2005) 139 LGERA 211.
In September 2005, the Authority issued to the Council a licence to conduct a waste depot up to 30 September 2007 subject to conditions (the 2005 licence).[7] Condition 10 provided that, if the licensee elected to conduct recycling operations after 28 February 2006, it was required to develop an Environmental Improvement Programme to the satisfaction of the Authority to, inter alia, provide a barrier layer between the recycling activities and the waste deposited in the landfill and implement the program after approval.
[7] The licence was reissued in amended form in June 2006.
On 15 February 2006, URS on behalf of the Council prepared an Environment Improvement Programme (the 5 ha Program) for the 5 ha ARR area. The Program provided for capping of the area by a 0.9 metre clay layer overlaid by a 0.3 metre sand intermediate layer overlaid by a 0.45 metre rubble and gravel upper layer. The upper layer was to form a hard trafficable surface to support the recycling operations proposed to be conducted by ARR. It was identified that the soil vegetative cover layer referred to in the Management Plan and Capping Plan was unsuitable for the intended use of the 5 ha ARR area. On 24 February 2006, the Authority approved the 5 ha Program pursuant to condition 10 of the 2005 licence.
ARR constructed a cap on the 5 ha ARR area in accordance with the 5 ha Program covering four hectares of that area and commenced using the area for its recycling operations pursuant to the Council’s licence.
As at 2007, the Authority decided that it should be a condition of the proposed renewal of the 2005 licence (due to expire on 30 September 2007) that the Council cap the Land. The Authority’s intention was that the obligation to cap would not extend to the 12 hectare perimeter, four hectare pond or 5 hectare ARR area; that is, it would apply only to an area of 57 hectares. Negotiations took place between the Authority and the Council concerning the terms of the proposed renewed licence, including the timeframe within which the Council would be required to cap the Land.
On 31 October 2007, the Authority issued to the Council a licence to conduct a waste depot on the Land up to 31 October 2012 subject to conditions (the Licence). Condition 2 prohibited the Council from disposing of waste on the Land. Conditions 4 and 5 prohibited the Council from receiving waste except for waste fill and imposed conditions on the reception of waste fill. Condition 9 required the Council to complete the capping of the 5 ha ARR area in accordance with the 5 ha Program by 31 December 2007. Conditions 6 and 7 required the Council, unless acting in accordance with conditions of the Licence, to construct a cap in accordance with the 2003 Capping Plan and additional specifications contained in condition 6; to complete construction of the cap by 31 October 2012;[8] and to ensure that a minimum of 20 per cent of the capping was completed each year commencing from 31 October 2007. Condition 8 provided that, if the Council did not wish to implement the capping design referred to in condition 6, the Council must develop a capping design specification to the satisfaction of the Authority; after approval, implement the specification; complete construction of the cap by 31 October 2012, and ensure that a minimum of 20 per cent of the capping was completed each year commencing from 31 October 2007.
[8] Condition 7 specifies this date as "31 December 2012". However, the Judge found that this date was intended by the Authority and the Council to be 31 October 2012 but was erroneously shown in the licence as 31 December 2012. That finding is not challenged on appeal and I proceed on that basis.
On 31 October 2007, the Authority issued to ARR a licence to conduct a waste depot on the 5 ha and 15 ha ARR areas up to 31 October 2012 subject to conditions (the ARR Licence). The Licence and the ARR Licence overlapped and were complementary insofar as they both applied to 20 hectares of the Land. The ARR Licence did not require ARR to cap the ARR areas but referred to the obligation of the Council to do so under the Licence.
On 8 October 2008, Coffey Geotechnics on behalf of ARR prepared a Technical Specification (the original 15 ha Specification) for the 15 ha ARR area. The Specification provided for capping of the area by a 0.9 metre clay layer overlaid by a 0.3 metre sand intermediate layer overlaid by a 0.5 metre rubble and gravel upper layer. The specification for the capping was very similar to that for the capping of the 5 ha ARR area under the 5 ha Program. On 9 October 2008, the Authority approved the 15 ha Specification pursuant to condition 8 of the Licence.
On 17 October 2008, the Council sent an email to the Authority. The email said that, while capping works proceeded on the 15 ha ARR area, the Council intended in parallel to lodge alternative capping designs for the 15 ha ARR area and the balance of the site.
On 20 November 2008, the Council wrote to the Authority about numerous issues. The letter referred in part to capping of the Land. The letter stated that the Council in conjunction with ARR had engaged consultants to produce a comprehensive assessment and proposed that final preferred capping solutions would be submitted to the Authority by 31 December 2008 with estimated timeframes for completion. It attached as Attachment D preliminary capping profiles and summary programs preferred by the Council and ARR. Attachment D comprised a single page showing a preliminary capping profile for the 15 ha ARR area and another for the balance of the Land together with a preliminary program showing a timetable. It did not contain any level of detail such as was contained in the Capping Plan, the 5 ha Program or the 15 ha Specification.
On 9 December 2008, the Authority wrote to the Council referring to the Council’s 20 November 2008 letter and to a subsequent meeting on 25 November 2008. The letter said that the Authority understood that the Council was proposing to submit an alternative capping plan for the Land, whilst proceeding to cap under the current approved plan. The letter reiterated the Authority’s concern about the delays in capping the Land and stressed the importance of the Council progressing the matter as soon as practicable to avoid the Authority taking further regulatory action.
On 19 December 2008, the Council prepared an Alternative Cap Design (the second 15 ha Specification) for the 15 ha ARR area. The Alternative Design provided for capping of the area by a 1.2 metre mixed sand and clay layer overlaid by a 0.5 metre rubble and gravel upper layer. This design was much cheaper than the original 15 ha Specification but entailed higher permeability of the lower layer due to the sand component. The Council provided to the Authority the second 15 ha Specification as foreshadowed, but did not provide an alternative design for the balance of the Land as foreshadowed in its 20 November 2008 letter.
On 2 February 2009, the Authority refused to approve the second 15 ha Specification. On 31 March 2009, the Council appealed to the Environment Court against the Authority’s refusal.
On 15 September 2010, Sinclair Knight Merz on behalf of the Council prepared a design and construction specification for Alternate Capping Placement (the third 15 ha Specification) for the 15 ha ARR area. The third 15 ha Specification provided for capping of the area by a 1.2 metre lower layer overlaid by a 0.5 metre upper layer. The lower layer was revised to comprise discrete layers of soil (0.3 metre), clay (0.4 metre) and soil (0.5 metre). On 17 September 2010, the Authority approved the third 15 ha Specification.
During the year ended 31 October 2011, ARR constructed a cap in accordance with the third 15 ha Specification on two hectares of the 15 ha ARR area. Subsequently, ARR constructed a cap to a different specification (involving an upper layer of concrete and bitumen) on an additional two hectares of the 15 ha ARR area. No capping was constructed by the Council or ARR over the remaining 11 hectares of the 15 ha ARR area. No capping was constructed by the Council over the 42 hectares comprising the balance of the 57 hectares of the Land referred to at [19] above.
In 2011, the Council sold the Land to ARR. The sale did not per se affect the Council’s obligations under the Licence.

Negotiations took place between the Authority, ARR and the Council for the assumption by ARR of the Council’s capping obligations, the surrender of the Licence by the Council and the grant of a new licence to ARR in respect of the Land. This transpired and in November 2012 the Authority approved the surrender of the Licence and ARR’s related entity entered into a voluntary site remediation agreement.[9]
[9] Under s 103K of the Environment Protection Act 1993 (SA).
The statutory regime
Subsection 36(1) of the Environment Protection Act provides:
36—Requirement for licence
(1)A person must not undertake a prescribed activity of environmental significance except as authorised by an environmental authorisation in the form of a licence under this Part.
Penalty:
If the offender is a body corporate—$120,000.
If the offender is a natural person—Division 1 fine.
Subsection 3(1) of the Environment Protection Act defines a “prescribed activity of environmental significance” to mean:
an activity specified in Schedule 1 as amended from time to time by regulation
Schedule 1 to the Environment Protection Act defines a “prescribed activity of environmental significance” to include:
3—Waste Treatment and Disposal
…
(3)Waste or Recycling Depots
the conduct of a depot for the reception, storage, treatment or disposal of waste other than—
[ten listed exceptions]
Subsection 40(1) of the Environment Protection Act provides:
40—Grant of environmental authorisations
(1)Subject to this Act, the Authority may grant an environmental authorisation to a person who has made due application for the authorisation and paid the authorisation fee prescribed or determined under the regulations.
Section 45 of the Environment Protection Act relevantly provides:
45—Conditions
(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.
…
(5)The holder of an environmental authorisation must not contravene a condition of the authorisation.
Penalty:
If the offender is a body corporate—$120,000.
If the offender is a natural person—Division 1 fine.
Section 3 of the Wingfield Closure Act provides:
3—Objects of this Act
The objects of this Act are—
(a)to provide for the closure of the waste depot conducted by the Corporation of the City of Adelaide at Wingfield in an environmentally acceptable manner; and
(b)to provide for public participation in the preparation of a Landfill Environmental Management Plan setting out requirements in relation to the closure of the depot; and
(c)to restrict the height of the solid waste landfill at Wingfield (including any capping material covering it) so that, after subsidence, it does not exceed 27 metres (Australian Height Datum).
Section 6 of the Wingfield Closure Act provides:
6—Use of Wingfield as a waste depot
(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 Environment 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.
The Licence
Relevant provisions of the Licence are as follows:
The Licensee(s)
·Corporation of the City of Adelaide
is (are) authorised to undertake the following activities of 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
…
Definitions
“Waste Fill” means waste consisting of clay, concrete, rock, sand, soil or other inert mineralogical matter in pieces not exceeding 100 millimetres in length and containing chemical substances in concentrations (calculated amount determined by the authority) less than the concentrations for those substances set out in Table 2, but does not include waste consisting of or containing asbestos or bitumen.
…
CONDITIONS OF LICENCE
…
2. (67-1017)   The Licensee must:
1.not dispose of waste or cause it to be disposed of at the Premises;
….
4. (67-870)     The Licensee must:
1.not receive waste at the Premises except for waste fill;
…
5. (67-734)     RECEIPT OF WASTE FILL
1.The Licensee must not receive waste fill at the Premises unless one of the following requirements 1.1, 1.2, 1.3, or 1.4 is satisfied.
1.1The Licensee has taken all reasonable and practicable measures to ensure that:
1.1.1   the waste fill does not exceed 100 tonnes from a single site;
1.1.2   the waste fill is not obviously discoloured or odorous;
1.1.3the waste fill displays no other indication that contamination is likely to be present in the waste fill; and
1.1.4the receipt of the waste fill will not result in environmental harm at the Premises.
…
6. (67-440)     The Licensee must, unless acting in accordance with conditions of this licence:
1.comply with the capping plan entitled ‘Wingfield Waste Management Centre-Landfill Capping Plan’ dated January 21 2003.
2.prior to commencing the capping of any stage, submit to the Authority a certificate from a geotechnical engineer, together with test reports (including, but not limited to, Atterberg limits, standard compaction, dispersivity, percentage clay, permeability tests and linear shrinkage) from a NATA accredited geotechnical testing laboratory, confirming the suitability of materials proposed for use in the clay layer of the capping;
3.apply a cap for each stage consisting of a compacted clay layer no less than 600 millimetres, followed by a soil layer no less than 900 millimetres, divided into a 750 millimetre protection layer and 150 millimetre vegetation layer;
NOTE:
The cap does not include fill placed as a separation layer above the underlying waste body. The separation layer shall be a minimum 300 millimetre thickness and not exceed the criteria established for waste fill.
4.ensure that the application of the clay capping results in a permeability coefficient of 1E-9 metres per second or lower and is applied as soon as reasonably practicable after each stage reaches its finished level of filling;
5.ensure that the clay cap is placed in 200 millimetre maximum thick layers following compaction and compacted to at least 95% of standard maximum dry density at a moisture content of optimum moisture content plus 2% to 4%;
6.ensure that the clay capping is constructed with slopes of at least 3%;
7.ensure that the construction of the clay capping for each stage is supervised by a geotechnical engineer in accordance with the requirements of Level 1 Supervision (as defined in the Australian Standard AS3798);
8.submit a copy of certification to the Authority within seven days of its receipt stating that the construction for each landfill stage complies with paragraph 3;
9.cover the clay layer of the capping as soon as reasonably practicable with soil suitable to control moisture in the clay layer of the capping;
10.ensure that the protection layer is at least 750 millimetres in depth after compaction and finished with a slope of at least 3%;
11.ensure that the compaction of the protection layer results in a permeability of 1E-6 metres per second or lower; and
12.apply a vegetation layer on top of the protection layer with a thickness of no less than 150 millimetres compacted to density no more than 85% of standard proctor and finished with slopes of at least 3%.
7. (67-1018)   The Licensee must:
1.complete the capping of the Premises in accordance with the design specification that has been approved by the Authority in accordance with condition 67-440;
2.within 1 month of the completion of each stage of construction of the cap, submit to the Authority, an As Constructed Report that sets out;
2.1how quality assurance has been maintained through the capping process;
2.2all testing and construction records for each stage of construction as set out in the Capping Plan entitled ‘Wingfield Waste Management Centre-Landfill Capping Plan’ dated 21 January 2003; and
2.3complete the capping works in accordance with the design specification that has been approved by the Authority by 31 December 2012; and
2.4ensure that as a minimum, at least 20% of the capping is completed each year commencing from the date of this licence.
8. (67-1015)   If the Licensee does not wish to implement the capping design referred to in condition 67-440 the Licensee must:
1.develop a capping design specification to the satisfaction of the Authority that details:
1.1the capping structure in context to the proposed after-use of the subject land;
1.2     the management of landfill gas;
1.3     how water infiltration into the landfill will be minimised;
1.4how stormwater generated at the Premises will be managed during construction of the cap; and
1.5how dust generation from materials handling and capping operations will be minimised.
2.submit the capping design specification, required by paragraph 1, to the Authority for approval;
3.if the capping design specification submitted in accordance with paragraph 2 is not acceptable to the Authority, resubmit within 14 days of being notified in writing of the requirements to do so, a revised version of the design specification (incorporating any additions or alterations that are required by the Authority);
4.implement the capping design specification once the Authority has approved it in writing; and
5.complete the capping in accordance with the design that has been approved by the Authority by no later than 31 October 2012; and
6.ensure that as a minimum, at least 20% of the capping is completed each year commencing from the date of this licence.
9. (67-1019)   The Licensee must:
1.Complete the capping of the 5ha area in accordance with the capping plan entitled ‘Environment Improvement Programme-Landfill Capping Plan for the Adelaide Resource Recovery Facilities 5Ha Processing Area at the Wingfield Eco- Resource Management Centre’ Dated 15 February 2006;
2.within 1 month of the completion of each stage of construction of the 5ha area submit to the Authority, an As Constructed Report that sets out;
2.1how quality assurance has been maintained through the capping process;
2.2all testing and construction records for each stage of construction as set out in the capping plan; and
2.3Complete the capping of the 5Ha area by 31 December 2007.
The reasons of the Judge
The Judge gave the following reasons for rejecting the Council’s first defence:
It was argued that condition 4 of the subject licence, read with condition 6, establishes that the subject licence authorises the reception of waste for the purposes of disposal, which is prohibited under the Closure Act. It was argued by Mr Edwardson that this somehow rendered the subject licence invalid.
I reject Mr Edwardson’s argument. The grant of the subject licence was not made in contravention of s 6 of the Closure Act. The Closure Act, in s 6(4) and (6), anticipated the grant of a licence to allow the implementation of the LEMP and the licencing of the site for recycling and waste transfer purposes. The LEMP included capping works, and specifically contemplated the receival of clean fill to be recycled for use as part of the proposed cap.
The subject licence, read properly, does not authorise any activity which is contrary to the Closure Act. Rather, it authorises precisely the activity anticipated by the Closure Act. Even if it had authorised activity contrary to the Closure Act, it is very far from clear that the invalidity of the licence would have been a consequence. More probably, the licence would have been read down to be consistent with the Closure Act. The issue does not, however, arise.
Mr Edwardson argued, by reference to the terms of the 2003 Capping Plan, that it required the use of “clean fill” and some “building rubble” in the proposed capping of the site. “Clean fill” and “building rubble”, he argued, are waste, and the use of them in the cap would amount to disposal. Thus, it was argued, condition 6 of the subject licence, which required compliance with the 2003 Capping Plan, rendered the grant of the licence a contravention of s 6 of the Closure Act.
I reject this argument, for much the same reasons as I reject the argument that the grant of the licence was invalid. Condition 6 is anticipated in the Closure Act in s 6(4) because it is part of the implementation of the LEMP. There was no need for that to be spelled out in the manner argued for by Mr Edwardson. It is plain enough from a proper reading of the Closure Act and the subject licence. In any event, just because clean fill and building rubble are capable of being characterised as “waste”, that does not mean that they are “waste” in all circumstances. The use of material for the capping of the site does not constitute the “disposal” of that material. The material is being used, not disposed of.
It should be borne in mind that the LEMP and the 2003 Capping Plan were both documents generated and put forward on the instructions of the Council. Both indicate a clear intention on the part of the Council to cap the landfill.[10]
[10] At [44]-[49]. (Footnotes omitted).
The Judge gave the following reasons for rejecting the Council’s second defence:
Mr Edwardson argued that condition 8 could only relate to an alternative cap for the whole of the land. Consequently, none of the alternative capping plans put forward by the Council or ARR were capable of being alternative capping plans for the purposes of condition 8. Thus, Mr Edwardson argued, in approving an alternative cap for any part of the land, the EPA “necessarily” “waived any reliance on the 2003 capping plan”.
Having regard to all of the correspondence and the documents tendered, including the various capping plans, it is clear that approvals for the capping of the 20 ha area used by ARR were given in the context that the Council was making representations that a further capping plan for the balance of the site would follow. Until it did, it was clear that the 2003 Capping Plan applied. In the event that the cap proposed by the 2003 Capping Plan was not suitable for the Council’s aspirations for the use of the site, then it was for the Council to put forward an alternative capping plan. In any event, even if the capping of the 4.2ha area prior to the term of the subject licence or the capping of the 1.75 ha in the fourth year of the subject licence occurred outside of the operation of condition 8, there is no basis for the assertion that, in approving the method set out in the Coffey Plan, or agreeing to the final form of the SKP Plan, the EPA expressly or impliedly waived compliance with the conditions of the subject licence. There is no evidence to support that assertion. There is abundant evidence to show that the mutual understanding of the EPA and the Council was that the obligation continued throughout the life of the licence. That understanding was consistent with the plain language of the licence.
The capping of the 4.2ha area took place pursuant to a capping plan which was approved prior to the granting of the subject licence. It is cannot be the case that the approval of that capping plan constituted a waiver of a condition of a future licence.
The Council did not avail itself of the opportunity given in condition 8 of the subject licence. Condition 8 provided that, if the Council did not wish to cap in accordance with Condition 6, it could develop a capping plan to the satisfaction of the EPA with certain specified characteristics. In addition, condition 8 required, in 8.4, that the capping design specification be “implemented”. None of the approved alternative caps was fully implemented over the whole area, or even over the area the subject of the alternative plan. In addition, condition 8.5 required that the capping be completed no later than 31 October 2012. The 1.75ha capped under the Coffey Plan is a small proportion of the 15ha which the Coffey Plan covered. Condition 8.6 required that a minimum of 20% of the capping under an alternative plan must be completed each year. I find, on the evidence, that condition 8(6) was not fulfilled in any year. Consequently, the Council did not activate condition 8, and was bound to cap under condition 6. There is no ambiguity about that in the licence.[11]
[11] At [51]-[54]. (Footnotes omitted).
Validity of condition 6
The Council contends that condition 6 was, or alternatively the operative provision of the Licence in conjunction with conditions 4 and 6 were, rendered invalid by subsection 6(5) of the Wingfield Closure Act because they authorised the use after 31 December 2004 of the Land as a depot for the reception (other than for recycling or waste transfer purposes) or disposal of waste.
The Council contends that, by requiring compliance with the 2003 Capping Plan, which provided for the use of waste fill to construct the cap, the Licence not only permitted but required the Council to receive and dispose of waste on the Land.
The Council contends that, insofar as the Judge held that waste materials to be used to construct the cap ceased to be “waste” because they were to be used to construct the cap or that they were received for recycling purposes and were used rather than disposed of, the Judge erred.
The Authority contends that, upon being deposited to construct the cap, waste materials would have ceased to be “waste”. The Authority further contends that waste materials intended to be used for construction of the cap would have been received for recycling purposes and would not have been disposed of within the meaning of section 6 of the Wingfield Closure Act.
The Authority makes an alternative contention that condition 6 did not require the Council to use waste fill and under the terms of the Licence it was at liberty to purchase clay and soil from a soil supplier, even if that might have been economically prohibitive.
Subject to the Authority’s alternative contention, the issue of the validity of condition 6 turns on the construction of the words in subsections 6(5) and (6) of the Wingfield Closure Act: “use … of Wingfield as a depot for the reception [except for recycling or waste transfer purposes] or disposal of waste”.[12]
[12] The Council also contends that the Judge erroneously held that, even if condition 6 authorised use of the Land as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste, this was contemplated and permitted by section 6 of the Wingfield Closure Act. It is not clear that the Judge held this, but if so the Authority does not seek to support the Judge’s decision on that ground and explicitly concedes on appeal that, if condition 6 authorised use of the Land as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste, this was prohibited by section 6 of the Wingfield Closure Act. This concession by the Authority was rightly made.
Reception, disposal, waste

Subsection 6(5) refers to “the use after 31 December 2004 of Wingfield as a depot for the reception or disposal of waste”. It is common ground that, as used in section 6, the word “waste” has the same meaning as in item 3(3) of Schedule 1 to the Environment Protection Act. This follows not only from the fact that the legislature deliberately chose to use the same word in the same context in section 6 of the Wingfield Closure Act as in item 3(3) of Schedule 1 to the Environment Protection Act, but also because the very subject matter of section 6 of the former Act is the grant of a licence under the latter Act to conduct a depot for the reception or disposal of waste.
The term “waste” has always been defined by section 3 of the Environment Protection Act but that definition has changed over time. The definition changed on 1 July 2005 as a result of an amendment effected by the Environment Protection (Miscellaneous) Act 2005 (SA). It is common ground that the change in the definition does not have any material effect in the present case.
While both parties submit that the meaning of the term “waste” in the Wingfield Closure Act was fixed at the time of its enactment in 1999 by reference to the definition then contained in the Environment Protection Act, that would be inconsistent with the fact that the very subject matter of section 6 of the Wingfield Closure Act is the grant of a licence under the Environment Protection Act to conduct a depot for the reception or disposal of waste. It follows that the term “waste” used in section 6 of the Wingfield Closure Act has an ambulatory meaning and refers to whatever comprises “waste” within the meaning of the Environment Protection Act in respect of which a licence is required for the conduct of a depot for its reception or disposal. In any event, as the parties submit, the change in the definition of “waste” in the Environment Protection Act makes no difference to the result in the present case.
Meaning of “waste”
In 1999, section 3 of the Environment Protection Act defined “waste” in a non-exhaustive manner as follows:
"waste" includes any solid, liquid or gas (or combination thereof) that is left over, surplus or an unwanted by-product from any business or domestic activity, whether of value or not
The Oxford English Dictionary defines the noun “waste” to have, inter alia, the following meaning:
III Waste matter, refuse.
11. a. Refuse matter; unserviceable material remaining over from any process of manufacture; the useless by-products of any industrial process; material or manufactured articles so damaged as to be useless or unsaleable.[13]
[13] Oxford English Dictionary, 2^nd ed (1989) vol 19 page 958.
In both ordinary parlance and the definition in the Environment Protection Act, waste is a purposive concept and is a relative and not absolute concept. It is not an inherent characteristic of matter that it comprises waste: it must be assessed from the perspective of the person whose purpose is to be considered at the relevant time. For example, an industrial process might produce two products, such as separating seawater into salt and water. A salt producer may regard the water as a useless by-product and hence waste; a water producer may regard the salt as a useless by-product and hence waste; and a dual producer may regard both as products and neither as waste. Waste is the antithesis of a product in ordinary parlance.
Because the concept of waste is relative and purposive, matter which is waste from the perspective of the producer at the time of production may cease to be waste when it passes into the possession of another producer for whom it is an input; a trader for whom it is a product or a consumer for whom it is a product. For example, if a water producer sells the salt by-product to a bread manufacturer who uses salt in making bread, to a salt wholesaler or retailer for sale to consumers, or directly to consumers, the salt is no longer waste from the perspective of the purchaser.
The mere fact that a producer of waste matter intends to sell it to another from whose perspective the matter is a product rather than waste does not necessarily preclude the matter being characterised as waste at the point of production. However, as observed, it may cease to be waste subsequently.
Since July 2005, section 3 of the Environment Protection Act has defined “waste” as follows:
(a)any discarded, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
(b)anything declared by regulation (after consultation under section 5A) or by an environment protection policy to be waste,[14]
whether of value or not.
[14] The Environment Protection (General) Regulations 1994 (SA) did not and the Environment Protection Regulations 2009 (SA) do not declare anything else to be waste.
It is clear from the first limb of the definition that under the amended definition the concept of waste remains purposive and relative and matter that is initially waste may cease to be waste subsequently.
In the present case, the Capping Plan, with which the Council was required by condition 6 of the Licence to comply, identified the predominant (70 to 80 per cent) source of the clay and soil required for the capping as clean fill obtained from large earthworks projects in the Adelaide region. I refer to this material as “waste fill”. It is clear that this waste fill was a by-product of excavations for development purposes and, from the perspective of the developer, was a “surplus by-product” (under the 1999 definition) and “surplus matter” (under the 2005 definition).
It should not be assumed, merely because material is a surplus by-product from the perspective of the producer, that at the time of its creation it is necessarily waste within the meaning of the Environment Protection Act. For example, to take an extreme case, if the producer has contracted to sell the by-product to another before it is produced, it may well be that the purpose of the purchaser is also relevant in characterising the material and it is therefore not properly characterised as waste. However, in the present case, the Authority explicitly concedes that, if the Council had sourced waste fill of the type identified in the Capping Plan, this material would have comprised “waste” within the meaning of the Environment Protection and Wingfield Closure Acts and it would have remained “waste” up to and beyond the point at which it passed on to the Land. I proceed on the basis of that concession.
Recycling or disposal of waste
As noted above, while prima facie subsection 6(5) of the Wingfield Closure Act precludes the issue of a licence to use the Land as a depot for the reception of waste, subsection 6(6) exempts from that preclusion the reception of waste for recycling or waste transfer purposes.
The first issue is whether the reception of waste fill by the Council for use in the construction of the cap required by condition 6 would have been reception “for recycling purposes”.
The word “recycling” is not defined by the Wingfield Closure Act and is not used in item 3(3) of Schedule 1 to the Environment Protection Act, although it has been used in the definition of “waste” since 2005.
The Oxford English Dictionary defines “recycle” to have, inter alia, the following meaning:
1. a. trans To reuse (a material) in an industrial process; to return to a previous stage of a cyclic process.
b.spec To reuse (a waste material), to convert (waste) into or into a usable form; also, to reclaim (a material) from waste.[15]
[15] Oxford English Dictionary, 2^nd ed (1989) vol 13 page 388.
If the Council had received waste fill for the purpose of using it to construct the cap, the use of the material would have comprised recycling and the reception of the material would have been for the purpose of recycling. This is because the Council would have reused the waste material and converted it from waste into an independently usable form, namely a cap to perform the functions identified in the Management Plan of reducing the potential for infiltration of water, generation of leachate, uncontrolled erosion, pest and vermin access to waste, and containing landfill gas. The fact that the Land had performed the function of a waste depot was in this respect happenstance: the position would be the same if the Land had previously been used for general industrial purposes and it was sought to construct a cap for, say, future residential development.
The second issue is whether the deployment of waste fill by the Council to construct the cap required by condition 6 would have been a “disposal of waste”.
Section 6 of the Wingfield Closure Act precludes the issue of a licence with effect after 31 December 2004 authorising the “use of Wingfield as a depot for the reception (except for recycling or waste transfer purposes) or disposal of waste”. Section 6 treats disposal as an antithesis of recycling. If material is recycled, it is diverted from a path that would otherwise lead to its disposal. By its transmutation into a useful product via recycling, material ceases to be waste and is not disposed of as waste.
In the example earlier given, if salt produced as a by-product of water production is used in the manufacture of bread, it is not disposed of as waste but used in the creation of a valuable product.
The Council relies on the decision of this Court in Evangelista v Development Assessment Commission.[16] Mr Evangelista owned vacant sloping land at Wattle Park located in the Hills Face Zone. He proposed to bring in by truck loads of bricks, broken concrete and loam from house demolition and construction sites and deposit them to create benches on the sloping land to facilitate access for weed control, firefighting, etc. Under Principle of Development Control 30 of the City of Burnside Development Plan, non-complying development in the Hills Face Zone included “landfill that constitutes a solid waste disposal required to be licensed as a waste depot under the Environment Protection Act 1993”. Mr Evangelista accepted that the demolition material comprised “waste” and that his proposal would involve the “reception, storage, treatment or disposal of waste” within the meaning of item 3(3) of Schedule 1 to the Environment Protection Act. He contended before the Environment Court that the material would not be “landfill” within the meaning of Principle 30 and that the land would not be a “depot” within the meaning of item 3(3). Those contentions were rejected. He contended on appeal to this Court that the land would not be a “depot” within the meaning of item 3(3). The decision of this Court on the meaning of “depot” comprises the ratio of the decision. That issue does not arise in the present case.
[16] [2004] SASC 324, (2004) 136 LGERA 180.
Duggan J (with whom Doyle CJ and Gray J agreed) made the following preliminary observation which reflected Mr Evangelista’s concession concerning item 3(3) before turning to the issue to be resolved about the meaning of the word “depot”:
The next question is whether this activity is required to be licensed as a waste depot under the EPA. This, in turn, depends upon whether the proposed activity involves “the conduct of a depot for the reception, storage, treatment or disposal of waste” within the meaning of that description in Sch 1 of the EPA.
I have already referred to the wide definition of “waste” in the EPA and the fact that the filling to be used comes within that description. The use of the material in accordance with the proposal would involve its reception and storage. The operation could also be described as disposal of the waste material.[17]
[17] At [15]-[16].
It is noteworthy that, while Duggan J considered that the use of the material would involve its “reception” and “storage”, his Honour did not categorically determine that it would involve its “disposal”. This was in the context in which it was unnecessary to determine that question because Mr Evangelista conceded that his use would involve the “reception, storage, treatment or disposal of waste”. This authority therefore does not assist the Council. In any event, the construction of an engineered cap to exacting specifications in the present case is very different to depositing demolition materials by Mr Evangelista on his land.
The Council also relies on the decision of Judge Trenorden in ResourceCo Pty Ltd v Environment Protection Authority.[18] In that case, ResourceCo conducted operations on three separate sites. At its first two sites, it received waste which it processed with a view to producing saleable products (trommel fines used for fill or road base; metals, and combustible materials used for fuel) and residual waste to be sent to an external landfill site. It transferred to its third site (Lot 545) materials that had been the subject of varying degrees of processing at its first two sites. The Authority issued an Environment Protection Order on the basis that ResourceCo was conducting an unlicensed waste depot on Lot 545. The issue was whether the material contained in piles situated on Lot 545 comprised “waste”. Judge Trenorden considered that some piles comprised waste and others did not. In particular, trommel fines were in the process of being recycled and did not comprise waste. On the other hand, raw waste material that had merely been pushed up into piles continued to be waste and semi-processed material which could potentially be processed in the future to produce a combination of valuable products and residual waste retained its character as waste.
[18] [2007] SAERDC 31.
Judge Trenorden made the following observations concerning the meaning of waste under the Environment Protection Act:
The definition implies that material becomes waste at the point of either discard, rejection or abandonment; or a decision that material is unwanted or surplus. This categorisation as “waste” occurs regardless of whether the material that has been discarded, rejected, abandoned, is unwanted or surplus, is of value. The material remains in the “waste” category unless and until its character changes, by virtue of going through an operation to recycle, reprocess, recover or purify, or is sold. The definition recognises that at some point waste material might cease to be waste. That point is when the material or a component thereof has changed its character, through the [process of] being sold and thus becoming wanted, or through being recycled, reprocessed, recovered or purified.
In determining whether the materials which are stored on the subject land and which were originally materials or part of materials delivered to the Appellant as waste, are waste, it is necessary to consider whether their character has been changed. In respect of the trommel fines and validated product, it is argued that they had been removed from the category of waste by the processing, of which they are a product.
The verb “recycle” has the following meanings according to the Macquarie Dictionary 3rd Edition:
1. to treat (waste, empty bottles, old tins, etc) so that new products can be manufactured from them.
2. to prepare (something) for a second use, often with some adaptation or reconstruction.[19]
[19] At [34]-[36].
The Council contends that, before waste can be recycled, it must be the subject of some degree of processing and relies in this respect upon the second paragraph of the definition of recycle in the Macquarie Dictionary quoted by Judge Trenorden. That contention should be rejected. The definition of recycle in the Oxford English Dictionary extracted above does not require that the waste be the subject of some degree of processing. On the Council’s construction, there would be an artificial distinction between recycling if there were a very limited degree of processing, such as merely washing glass or plastic bottles that are commonly recycled, and no recycling if there were no processing, such as using material in its existing form. Moreover, there are everyday examples of what is regarded as recycling in which there is no processing. When a person who has surplus clothing, books or other household items donates them to a goodwill centre, the items are regarded as being recycled notwithstanding that they might not be the subject of any processing.
The Council also contends that the reference by Judge Trenorden in the first paragraph extracted above to material changing its character through being sold indicates that material cannot change its character from waste in the absence of being sold. This contention should also be rejected. There is no material difference between a person selling material for use by another and using that material for the same use themselves.
In conclusion, the reception of waste fill by the Council for use in the construction of the cap required by condition 6 would have been reception “for recycling purpose” and its use therein would not have been a “disposal of waste” for the purposes of section 6 of the Wingfield Closure Act. On the assumption that the Council would have sourced waste fill in order to comply with condition 6, that would not have entailed a breach of the Wingfield Closure Act. The Judge was correct to reject the Council’s first defence.
The Authority’s alternative contention
The Authority makes an alternative contention that condition 6 did not require the Council to use waste fill and under the terms of the Licence it was at liberty to purchase clay and soil from a clay/soil supplier, even if that was economically prohibitive.
Given the conclusion reached above, it is not strictly necessary to determine this contention. However, the Licence as a whole manifests a clear intention to authorise the Council to use waste fill to construct the cap. If this had involved the reception (other than for recycling purposes) or disposal of waste, a licence would have been rendered invalid to the extent that it authorised the Council to use waste fill to construct the cap. Condition 6 was premised on the use by the Council of waste fill to construct the cap, even although it does not require the Council to use waste fill and the Council could instead have purchased clay and soil from a supplier. In these circumstances, it is likely that, in accordance with ordinary principles of construction, condition 6 would not be severed from that part of the Licence that would have been invalid.
Superseding of conditions 6 and 7
The Council’s second defence was that condition 6 had been superseded by steps taken pursuant to condition 8. The Council contends on appeal that the Judge erred in her Honour’s construction of conditions 6 and 8 in this respect.
The Council contends that, on the proper construction of conditions 6 and 8, compliance with condition 6 was optional because condition 6 was expressed to apply “unless acting in accordance with conditions of this licence” and condition 8 was expressed to apply “if the Licensee does not wish to implement the capping design referred to in condition [6]”. Accordingly, if the Council informed the Authority that it did not wish to implement the capping design referred to in condition 6, condition 6 ceased to have any operative effect and the Council’s obligations were governed exclusively by condition 8.
The Council contends that it communicated to the Authority on 17 October 2008 that it did not wish to implement the capping design referred to in condition 6 when it proposed the capping design the subject of the original 15 ha Specification. Alternatively, it communicated this again on 19 December 2008 when it proposed the alternative capping design the subject of the second 15 ha Specification and again on 15 September 2010 when it proposed the alternative capping design the subject of the third 15 ha Specification. The Council contends that it does not matter in this respect that the alternative designs all related to the 15 ha ARR area and not to the balance of the Land.

The Authority contends that, on the proper construction of conditions 6, 7 and 8, conditions 6 and 7 continued to apply in respect of the whole of the Land unless and until the Council completed construction of an alternative capping design under and in compliance with condition 8. If the alternative capping design related to any part of the Land, conditions 6 and 7 would in any event continue to apply to the balance of the Land. Even if the Authority had approved an alternative capping design for the whole of the Land under condition 8, the Council would nevertheless have remained bound to construct a cap in accordance with conditions 6 and 7 unless and until it completed construction of the alternative cap.
The competing contentions of the parties raise the issue of the proper construction of conditions 6, 7 and 8. The extreme constructions advanced by both parties should be rejected. A consideration of the text, context and evident purpose of conditions 6, 7 and 8 unequivocally compels the conclusion that, upon and only upon approval by the Authority of an alternative capping design under condition 8, the Council’s obligation to construct the cap will be governed by condition 8 rather than conditions 6 and 7 and, if the approved alternative capping design applies to only part of the Land, conditions 6 and 7 will continue to govern the Council’s obligations to construct the cap on the balance of the Land.
The literal effect and evident purpose of conditions 6 and 7 is that they impose the primary obligation on the Council to construct the cap in accordance with the Capping Plan and the specifications contained in condition 6 itself. Condition 8 recognises that the Council may seek to vary the specifications for the cap and provides for the parties to agree to such a variation. When the Licence was issued, it was foreseeable that the Council might seek to vary the specifications for the cap in respect of part of the Land but not in respect of the remainder of the Land (and this in fact transpired in respect of the 15 ha ARR area). It is not a tenable construction of the Licence that the mere fact that the Council might seek to vary the specifications for the cap in respect of part of the Land or might obtain the approval of the Authority to do so abrogates the Council’s obligations under conditions 6 and 7 to construct the cap to the original specifications in respect of the balance of the Land.
The Licence does not contain any mechanism to resolve a dispute between the Council and the Authority as to whether a variation proposed by the Council under condition 8 should be approved. This is illustrated by what occurred in February and March 2009 when the Authority refused to approve the alternative capping design the subject of the second 15 ha Specification and the Council instituted proceedings in the Environment Court because there was no such dispute resolution mechanism in the Licence. If it had been intended that the mere expression by the Council that it did not wish to implement the capping design referred to in condition 6 or the mere making of a proposal by the Council for an alternative capping design would abrogate the Council’s obligations under condition 6, it may be expected that the Licence would have contained a dispute resolution mechanism.
On the proper construction of conditions 6, 7 and 8, the Council’s obligations to construct a cap on the 15 ha ARR area became governed exclusively by condition 8 (and not condition 6) on 9 October 2008 when the Authority approved the 15 ha Specification pursuant to condition 8. The Authority’s contention that conditions 6 and 7 continued to apply in respect of the 15 ha ARR area should be rejected. Conversely, the Council’s contention that condition 6 ceased to apply to the 15 ha ARR area on an earlier date should be rejected, as should its contention that condition 6 ceased to apply to the balance of the Land at any point.
On 20 November 2008, the Council wrote to the Authority saying that it was proposed that preferred capping solutions would be submitted to the Authority by 31 December 2008. It attached a very preliminary capping profile which lacked detail. It is clear that this letter did not comprise a capping design specification within the meaning of condition 8(1) so as to initiate the process under condition 8 for negotiation of a variation to the existing capping specification. While the letter foreshadowed an intention to submit such a capping design specification by 31 December 2008, this did not transpire in respect of the balance of the Land (aside from the 15 ha ARR area). This letter was incapable of abrogating the operation of conditions 6 and 7 in respect of the balance of the Land.
In conclusion, the Council was not in breach of conditions 6 and 7 by its failure to cap the 15 ha ARR area other than the two hectares capped in 2010/2011. While the Council was in breach of condition 8 by reason of that failure, it was not charged with a breach of condition 8.
Conversely, the Council was in breach of conditions 6 and 7 by its failure to cap the balance of the Land over the period 1 November 2007 to 31 October 2011. The Judge was correct to reject the Council’s second defence.
Conclusion
I would dismiss the appeal.
LOVELL J: I agree with Blue J.
HINTON J: I agree that the appeal should be dismissed for the reasons given by Blue J.