Dasma Environmental Pty Ltd v Environment Protection Authority - [2022] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0013

DASMA ENVIRONMENTAL PTY LTD (ACN 144 694 780)	Applicant
v
ENVIRONMENT PROTECTION AUTHORITY	Respondent

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JUDGES:	EMERTON P, KENNEDY and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2022
DATE OF JUDGMENT:	17 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 248
JUDGMENT APPEALED FROM:	[2021] VSC 798 (McDonald J)

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ENVIRONMENTAL LAW — Respondent issued applicant with clean up notice in respect of stockpiles of glass cullet and mixed concrete and brick rubble — Applicant sought declarations with respect to validity of clean up notice and associated matters — Trial judge declared clean up notice valid and otherwise declined to grant declaratory relief — Whether trial judge erred by failing to exercise jurisdiction in respect of declarations sought — Whether trial judge erred by misconstruing the definitions of ‘waste’ and ‘industrial waste’ in s 4(1) of the Environment Protection Act 1970 and, in consequence, erred in finding that the relevant material the subject of the clean up notice was ‘waste’ and ‘industrial waste’ as defined in the Act — Whether trial judge erred in finding that applicant contravened s 27A(2)(a) of the Act on the basis it had deposited the glass cullet and concrete and brick at a place ‘not being a site licensed’ by the respondent to accept industrial waste of that kind — No failure to exercise jurisdiction — Trial judge correctly characterised the glass cullet and concrete and brick rubble materials as ‘waste’ and ‘industrial waste’ — Trial judge did not misconstrue s 27 of the Act — Leave to appeal granted in part but otherwise refused — Appeal dismissed.

Environment Protection Act 1970 ss 4, 27(1), 27A, 45, 62A.

Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679, Wood v Adelaide Resource Recovery Pty Ltd (2017) 127 SASR 296 discussed; Hobart International Airport Pty Ltd v Clarence City Council; Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council (2022) 398 ALR 214, Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 applied.

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Counsel
Applicant:		Mr H Carmichael with Ms J Dodd
Respondent:		Mr T Howard SC with Ms E Smith
Solicitors
Applicant:	Oakley Thompson & Co Pty Ltd
Respondent:	Allens

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TABLE OF CONTENTS

(1) Introduction

(2) Background facts

The glass cullet

Concrete and brick rubble

The EPA inspection

The clean up notice

(3) The statutory scheme

(4) Grounds 2–4 — ‘waste’ and ‘industrial waste’

Definition of ‘waste’

Definition of ‘industrial waste’

The trial judge’s decision as to ‘waste’ and ‘industrial waste’

Analysis

Summary

(5) Ground 5 — s 27A(2)(a)

Summary

(6) Grounds 1 and 6 — alleged failure to exercise jurisdiction

(7) Conclusion

EMERTON P
KENNEDY JA
R OSBORN JA:

(1) Introduction

The applicant, Dasma Environmental Pty Ltd (‘Dasma’) operates a materials recycling facility at premises in Tramway Road, Morwell (‘the MRF’) at which it receives commingled waste from Latrobe Shire Council (‘the Council’) containing material potentially suitable for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSCA 248
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the matter of Dasma Environmental Pty Ltd v Environment Protection Authority, the dispute arose from the issuance of a clean-up notice by the Environment Protection Authority (EPA) to Dasma Environmental regarding stockpiles of glass cullet and mixed concrete and brick rubble. Dasma Environmental contested the validity of the clean-up notice and sought declarations on various associated matters. The case was heard in the Supreme Court of Victoria.

The primary legal issues involved whether the trial judge correctly exercised jurisdiction to grant the declarations sought by Dasma Environmental, if the definitions of ‘waste’ and ‘industrial waste’ in the Environment Protection Act 1970 were misconstrued, and whether the trial judge was correct in finding that Dasma Environmental contravened the Act by depositing the materials at a place not licensed to accept industrial waste of that kind. The Court examined the statutory language and relevant case law to determine the validity of the clean-up notice and the characterisation of the materials.

The Court found that the trial judge did not fail to exercise jurisdiction and correctly characterised the materials as ‘waste’ and ‘industrial waste’ within the meaning of the Act. The Court also held that the trial judge did not misconstrue the statutory definitions, and the characterisation of the materials was appropriate. Furthermore, the Court determined that Dasma Environmental did contravene the Act by depositing the materials at an unlicensed site. Consequently, leave to appeal was granted in part but otherwise refused, and the appeal was dismissed.

The Court did not issue any further orders beyond dismissing the appeal and affirming the findings of the trial judge.

Orders