Dasma Environmental Pty Ltd v Environment Protection Authority

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 recycling.
In addition to the waste received from the Council, Dasma also receives other waste at the MRF including mixed concrete and brick rubble.
Dasma also occupies land in Monash Way, Hazelwood, at which, from time to time, it has deposited stockpiles of materials obtained from the MRF.
On 24 May 2018, the respondent (‘the EPA’) issued a clean up notice pursuant to s 62A(1)(a) of the Environment Protection Act 1970 (‘the Act’) to Dasma requiring Dasma to comply with the following requirements in respect of its Monash Way premises:
(a)immediately cease the acceptance of all types of industrial waste;
(b)remove all industrial waste, specifically mixed concrete and brick waste, that is not permitted to be stored or processed at the premises and dispose to a facility that is licensed or permitted to receive waste of that kind;
(c)remove all industrial waste, specifically mixed crushed glass and plastic waste from the premises and dispose to a facility that is licensed or permitted to accept waste of that kind.
On 23 May 2019, the EPA commenced a summary criminal proceeding against Dasma pursuant to s 62A(3) of the Act for alleged non-compliance with the clean up notice.
At a mention of the summary proceeding in August 2019, Dasma foreshadowed a collateral challenge to the validity of the clean up notice on the basis that the material identified in the notice was not ‘industrial waste’.
Subsequently Dasma issued proceedings in the Trial Division of the Supreme Court seeking nine declarations relating to the lawfulness of its land use at Monash Way by reference to the Act. The fifth declaration directly challenged the validity of the clean up notice.[1]
[1]The full terms of the declarations sought by Dasma are attached as Annexure A.
The proceeding was heard by McDonald J over five days in 2021. The principal issues agitated before his Honour were:
(a)Whether the glass cullet and the concrete and brick rubble materials that had been deposited at Monash Way were ‘waste’ and ‘industrial waste’ as defined in s 4(1) of the Act;
(b)Whether the Applicant had contravened s 27A(2) of the Act, on the basis that it had deposited the glass cullet and concrete and brick at Monash Way, being a place ‘not being a site licensed’ by the Respondent to accept industrial waste of that kind. Monash Way was not a scheduled premises and was therefore not required to be licensed as such;
(c)Whether the jurisdictional fact of ‘waste’, ‘industrial waste’ and ‘deemed pollution’ was established to the satisfaction of Ms Cummings [an authorised officer of the EPA] for reasons stated in the clean up notice;
(d)Whether Monash Way was a ‘premises upon which pollution has occurred’ within the meaning of s 62A(1)(a) of the Act on the basis that the Applicant had contravened s 27A and was therefore deemed to have polluted Monash Way pursuant to s 45(2) of the Act;
(e)Whether the Court should exercise its discretion not to grant the declaratory relief sought by the Applicant.[2]
[2]Agreed summary for Court of Appeal filed 13 April 2022, [20].
After delivering reasons as to his conclusions on the facts in issue, the trial judge sought and obtained submissions as to the appropriate remedy.
On 14 December 2021, McDonald J:
(a)declared that the clean up notice was valid;
(b)otherwise dismissed the proceedings; and
(c)ordered that Dasma pay the EPA’s costs.
Dasma now seeks leave to appeal the trial judge’s decision. The proposed grounds of appeal are prolix and argumentative. Nonetheless, they may be grouped into three categories alleging that the judge erred:
(a)by ‘failing to exercise jurisdiction’ in respect of the declarations sought, (save for declaration 5) (grounds 1 and 6);^[3]
(b)by misconstruing the definitions of ‘waste’ and ‘industrial waste’ in s 4(1) of the Act and, in consequence, making errors in finding that the relevant material the subject of the clean up notice was ‘waste’ and ‘industrial waste’ as defined in the Act (grounds 2, 3 and 4);
(c)in finding that Dasma contravened s 27A(2)(a), because there was no statutory requirement for Monash Way to be licensed by the EPA under the Act and Dasma’s receipt, handling and storage of the recyclable materials at Monash Way was not prohibited under s 45(2)(a)(i) of the Act or otherwise by the Act (ground 5).
[3]Although ground 1 also purported to assert that there was misconstruction in applying the definitions of ‘waste’ or ‘industrial waste’, those contentions are properly dealt with under grounds 2–5.
There was a further ground (ground 7) which cited ‘misconstruction and legal error’ which was apparently ‘[based] on Grounds 1–6 of this Application.’ This ground does not appear to have any independent foundation.
In consequence, it is submitted that the trial judge erred in making the declaration that the clean up notice was valid and further erred in refusing to make the declarations sought by Dasma.
For the reasons which follow, we would refuse leave to appeal in respect of grounds 1 and 6. The trial judge did not fail to exercise jurisdiction, but exercised his discretion by reference to relevant considerations.
We would grant leave with respect to grounds 2–4, but would dismiss the appeal. In our view, the evidence demonstrated that the glass cullet comprised ‘waste’ in the sense defined by the Act of ‘unwanted’ and ‘surplus’ material. The evidence further demonstrated that the concrete and brick rubble was unprocessed ‘waste’ and could not be lawfully processed onsite. The evidence as to the origins of these materials further justified its characterisation as ‘industrial waste’.
We would refuse leave to appeal in respect of ground 5, directed to the construction of s 27A(2)(a) of the Act.

(2) Background facts

Dasma receives commingled ‘yellow bin’ waste at the MRF pursuant to an agreement with the Council dated 10 August 2011 (‘the recycling contract’).
At the date of the trial judge’s decision the recycling contract had been extended twice and was expressed to expire on 2 July 2022.
The recycling contract contains a number of defined terms, including ‘Collected Material’, ‘Recyclables’, ‘Recyclables Acceptance and Sorting Service’, ‘Recyclables Collection Service Contract’ ‘Recyclable Collection Service Contractor’ and ‘Sorting Facility’. Clause A3.1 of the recycling contract provides, inter alia, that:
(a)ownership of all ‘Collected Material’ vests in Dasma, as against the Council, when delivered to Tramway Road;
(b)Dasma must:
(i)accept all ‘Collected Material’ delivered to Tramway Road by the Council’s ‘Recyclable Collection Service Contractor’ (except as provided in clause A3.7.2, which allows Dasma to reject ‘Collected Material’ if its density exceeds the acceptable load density);
(ii)use its best endeavours to ensure that the maximum amount possible of the ‘Recyclables’ are sorted from the ‘Collected Material’ that was delivered to Tramway Road by the relevant contractor; and
(iii)ensure that all Recyclables sorted are sold for reprocessing into secondary materials; and
(iv)dispose of all non-recyclable ‘Contamination’ contained within the ‘Collected Material’.
Under the recycling contract, the Council paid Dasma $109.07 per tonne in respect of ‘Collected Material’ received at the MRF collected by the Council’s ‘Recyclable Collection Services Contractor’ from its kerbside ‘yellow top/lid’ recycling bins. This material could include materials collected from commercial and non-residential properties.
The contract granted Dasma the chance of profit if the price it could achieve on sale following reprocessing of particular recyclable material rose. Conversely, if the price fell Dasma bore the risk that an element of loss would occur within its overall recycling business.
As indicated already, Dasma also occupies vacant land at Monash Way, Hazelwood. There are no buildings on the land. At the date of the clean up notice, the land at Monash Way contained stockpiles of partially processed glass waste known as glass cullet and piles of concrete and brick rubble, a portable crusher and piles of crushed concrete and brick material.

The glass cullet

Once accepted at the MRF, commingled waste is sorted into different streams which separate out materials which are recyclable, including paper, metals (separating steel and aluminium), and a series of different kinds of plastic and glass.
Glass waste is processed through a trommel which shatters the glass and (after removal of fines) produces glass cullet which is a product comprising small pieces of glass and incidental pieces of remnant plastic, metal, and paper waste.
Prior to mid-2016, Dasma on-sold glass cullet (including incidental contaminants principally comprising plastic) ‘as is’ to companies such as SKM Recycling (‘SKM’), Visy and Polytrade Recycling Pty Ltd (‘Polytrade’). The sale price did not cover Dasma’s transport costs and some documents referred to the payments made by Visy and SKM as a rebate.
Upon receipt of the glass cullet, the glass manufacturers would remove the non-glass contamination, clean the glass and sort by colour, before recycling the glass by way of glass manufacture.
The background to these purchase arrangements changed:
(a)between April 2012 to March 2013, Dasma received a rebate rate of $12.50 per tonne of glass cullet from Visy. In March 2013, as a result of significant problems in the market for glass cullet, Visy informed Dasma that it would no longer pay Dasma for glass cullet effective April 2013;
(b)between August 2013 to mid-2016, Dasma received from SKM a price of $10 per tonne for higher quality mixed glass / glass cullet. However, by mid-2016 SKM began charging rates between $40 (mid-2016) to $100 (August 2018) per tonne to accept the glass cullet.
Whatever the market price governing the disposal of glass cullet, at all relevant times, Dasma sold the glass cullet at a figure less than the cost of transport to a glass beneficiation facility. From 2011 to 2016, Dasma transported glass cullet from Tramway Road to Visy and SKM at a cost to Dasma of approximately $30 per tonne.
On 10 February 2015, Dasma entered into an oral agreement with Polytrade to receive 700–900 tonnes per week of Polytrade’s glass cullet at Tramway Road. Polytrade would pay Dasma $8,000 per month to receive and store that material at Tramway Road until it was removed by Polytrade. A memo detailing the terms of the agreement stated that it had an initial term of ‘about 6 months’. However, Dasma continued to store Polytrade’s glass cullet until December 2017.
Dasma understood the agreement as entitling Polytrade to remove an equivalent quantity of glass cullet from Dasma’s stockpiles to that deposited by Polytrade pursuant to the arrangement. After the arrangement came to an end, some of the material stored by Dasma had originated from Polytrade.
It will be recalled that, after using its best endeavours to separate the various streams of recyclable materials by sorting, Dasma was bound to ‘ensure that all Recyclables are sold for processing into secondary materials’.
This obligation was problematic. When Dasma put a business proposal to the Council in August 2020 with respect to increased fees at the MRF it did so in part in the following terms:
Originally glass cullet was sold to SKM for $10/tonne. While this sale price did not cover Dasma’s transport costs and was not ultimately profitable … The sale diverted recyclables from landfill and Dasma was prepared to bear that cost until SKM started to charge for this recycled material. Dasma has since stockpiled this product with the view that there is a potential recycling market but in the current position and the current Contract prices, the ongoing cost is prohibitive.[4]
[4]Affidavit of Eden Alfio Di Sipio sworn 22 January 2021, Exhibit EDS-33, 26.
As the trial judge found:[5]
From August 2016, there was no market for the glass cullet. Neither Visy, SKM nor Polytrade were willing to pay Dasma for the glass cullet. Instead, as Mr Di Sipio[6] admitted, from August 2016, Dasma faced costs of approximately $70 per tonne to dispose of the glass cullet with SKM.
It was in these circumstances that Dasma made the decision to stockpile the glass cullet in the hope that economic demand for glass cullet would, at some indefinite point in the future, pick up. No such demand arose. Rather, in January 2018, the Chinese government imposed measures restricting the import of certain types of recyclable materials, causing major disruptions to the recycling market. Mr Di Sipio deposed that this had the effect of limiting recycling operators’ capacity to on-sell glass cullet.
[5]Reasons [100]–[101] (citation in original, other citations omitted).
[6]Mr Di Sipio was the Managing Director of Dasma at the date of the clean up notice.
By mid-2016, Dasma had run out of storage space for glass cullet at Tramway Road. In about July 2016, Dasma transported glass cullet from Tramway Road to Monash Way where it was deposited in piles.

Concrete and brick rubble

In addition to accepting commingled recyclables pursuant to the recycling contract, Dasma also accepted concrete and brick rubble at the MRF. The person depositing the material paid a fee to Dasma to receive the material. Some of the concrete and brick rubble came from builders or commercial sources. From at least March 2016, the Council had advertised that the MRF was available to receive concrete and brick materials from the public. The accepted concrete and brick materials were deposited by the public at the MRF, before then being transported to Monash Way by Dasma (at its cost) where they were processed from time to time by a concrete crushing machine.
The crushing machine was portable. Prior to 2005 a predecessor company of Dasma operated a concrete crushing machine on a larger parcel of land at Monash Way in accordance with planning permission then in place. In about 2011, upon subdivision of the larger piece of land, Dasma moved the crusher to its present location upon the smaller piece of land occupied by Dasma. Dasma did not have planning permission to use the concrete crusher at the date of the clean up notice in May 2018 and had known this to be the fact since March 2018. In August 2019, Dasma obtained planning approval permitting it to recycle concrete, brick, masonry and stone and to recover steel from the crushing of these products at Monash Way.

The EPA inspection

On 22 February 2018 and 14 March 2018, EPA officers inspected Monash Way and observed a number of stockpiles of crushed glass, some of which were mixed with items of plastic and metals, as well as other items, including e-waste. The officers also observed a minimum of five stockpiles of mixed concrete and brick in crushed and uncrushed form. Some stockpiles of the concrete and brick material had become overgrown with grass.
Photographs of the stockpiles were tendered in evidence at the trial. We attach as Annexure B:
•sample photographs of the glass cullet which demonstrate that the extent of its contamination with materials other than glass was variable but obvious; and
•sample photographs of concrete and brick rubble together with crushed concrete and brick material.

The clean up notice

The clean up notice was in four parts. The first part, headed ‘EPA observations’, detailed what had been observed on inspection by EPA officers. The second part, headed ‘Reasons for view formed’, articulated why the EPA officer who issued the notice believed a clean up notice should be issued. The third part, headed ‘Requirements – what outcomes are required to comply?’, listed requirements to address the environmental impacts in issue. We have set out its terms at [4] above. The fourth part of the notice was headed ‘An example of how you can comply’ and provided examples of how compliance with the notice could be achieved.

(3) The statutory scheme

The Act was repealed prior to the decision of the trial judge and replaced with a materially different statute. Nonetheless, we must construe the Act which was in force at the date of the service of the clean up notice.
Section 1A states the purpose of the Act:
(1)The purpose of this Act is to create a legislative framework for the protection of the environment in Victoria having regard to the principles of environment protection.
(2)The principles of environment protection are set out in sections 1B to 1L.
(3)It is the intention of Parliament that in the administration of this Act regard should be given to the principles of environment protection.[7]
[7]Environment Protection Act 1970, s 1A.

The principles of environment protection relevantly include the following:
1H     Principle of product stewardship
Producers and users of goods and services have a shared responsibility with Government to manage the environmental impacts throughout the life cycle of the goods and services, including the ultimate disposal of any wastes.
1I       Principle of wastes hierarchy
Wastes should be managed in accordance with the following order of preference—
(a)      avoidance;
(b)      re-use;
(c)      re-cycling;
(d)     recovery of energy;
(e)      treatment;
(f)      containment;
(g)      disposal.
…
1K     Principle of enforcement
Enforcement of environmental requirements should be undertaken for the purpose of—
(a)better protecting the environment and its economic and social uses;
(b)ensuring that no commercial advantage is obtained by any person who fails to comply with environmental requirements;
(c)influencing the attitude and behaviour of persons whose actions may have adverse environmental impacts or who develop, invest in, purchase or use goods and services which may have adverse environmental impacts.[8]
[8]Environment Protection Act 1970, ss 1H, 1I, 1K.
The principle of product stewardship reflects the potential significance of waste disposal to environmental management. The principle of waste hierarchy was given effect by a regional waste management plan which was annexed to the recycling contract. It emphasises the policy preference for a recycling of waste as against disposal. The principle of enforcement states the purposes underlying the clean up provisions of the Act.
Section 4(1) of the Act provides definitions (‘unless inconsistent with the context or subject matter’) including relevantly, definitions of the following terms:
clean up includes any measures—
(a)to remove, disperse, destroy, dispose of, abate, neutralize or treat any pollutant, waste, substance, environmental hazard or noise; and
(b)to restore the environment to a state as close as practicable to the state it was in immediately before—
(i)       the discharge of any pollutant, waste or substance; or
(ii)      the creation of an environmental hazard; or
(iii)     the emission of noise; and
(c)to restore the environment to a state specified in a notice by the end of the time specified in the notice; and
(d)to assess the nature and extent of the damage and risk caused by any pollutant, waste, substance, environmental hazard or noise; and
(e)to take any measurement, recording or sample or to prepare any report, plan, drawing or other document, or to make any inspection, calculation, test or analysis or do anything that may be specified in the notice; and
(f)to retain any consultant, contractor, expert, agency or person at the cost of the occupier or person required to comply with the notice or otherwise for the purpose of taking any clean up measures specified in the notice; and
(g)to determine the most appropriate action to take in relation to the measures set out in paragraphs (a), (b), (c), (d), (e) and (f);
environment means the physical factors of the surroundings of human beings including the land, waters, atmosphere, climate, sound, odours, tastes, the biological factors of animals and plants and the social factor of aesthetics;
industrial waste means—
(a)any waste arising from commercial, industrial or trade activities or from laboratories; or
(b)any waste containing substances or materials which are potentially harmful to human beings or equipment;
pollute includes causing or permitting pollution;
polluted means the condition of the environment described and referred to in section 39(1), 41(1) or 45(1) as the case may be;
waste includes—
(a)any matter whether solid, liquid, gaseous or radio-active which is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment;
(ab)any greenhouse gas substance emitted or discharged into the environment;
(b)      any discarded, rejected, unwanted, surplus or abandoned matter;
(c)any otherwise discarded, rejected, abandoned, unwanted or surplus matter intended for—
(i)recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
(ii)      sale; and
(d)     any matter prescribed to be waste;[9]
We will return to these concepts as they arise in addressing the clean up notice provisions.
[9]Environment Protection Act 1970, s 4.
Under s 62A(1)(a) of the Act, the EPA was empowered to issue a notice to the ‘occupier of any premises upon or from which pollution has occurred or has been permitted to occur’ and direct the occupier ‘to take clean up or on-going management measures as specified in the notice’.
We note two preliminary matters relating to s 62A(1)(a). First, an occupier may be liable to clean up whether or not the pollution occurred during the current occupier’s occupation of the premises and whether or not the occupier can be said to have caused the pollution. Secondly, ss 62A(1)(b)–(d) further provide for the possibility of clean up notices directed to persons other than the occupier including ‘the person who has caused or permitted the pollution to occur’; ‘any person who appears to have abandoned or dumped any industrial waste or potentially hazardous substance’; or ‘any person who is handling industrial waste or a potentially hazardous substance in a manner which is likely to cause an environmental hazard’. In turn, s 62A(2) provides that the occupier of any premises which is the subject of a notice may apply to a court of competent jurisdiction to order any of the persons falling within these further categories to compensate the occupier for any costs incurred by the occupier which the court is satisfied are reasonable and were incurred in good faith in complying with a clean up notice directed to the occupier.
In the present case, the power to issue a clean up notice was predicated upon the characterisation of the Monash Way land occupied by Dasma as premises upon which pollution had occurred or had been permitted to occur.
As outlined above, under s 4(1) ‘pollute’ includes causing or permitting pollution and ‘polluted’ means the condition of the environment described and referred to in s 39(1), 41(1) or 45(1) as the case may be. The relevant section for present purposes is s 45(1) which relates to the pollution of land.
Section 45 creates the offence of pollution of land and commences:
(1)A person shall not pollute land so that the condition of the land is so changed as to make or be reasonably expected to make the land or the produce of the land—
(a)noxious or poisonous;
(b)harmful or potentially harmful to the health or welfare of human beings;
(c)poisonous, harmful or potentially harmful to animals, birds or wildlife;
(d)poisonous, harmful or potentially harmful to plants or vegetation;
(e)obnoxious or unduly offensive to the senses of human beings; or
(f)detrimental to any beneficial use made of the land.
(2)Without in any way limiting the generality of subsection (1) a person shall be deemed to have polluted land in contravention of subsection (1) if—
(a)that person causes or permits to be placed in or on any land or in any place where it may gain access to any land any matter whether solid, liquid or gaseous which—
(i) is prohibited by or under this Act; or
(ii)does not comply with any standard prescribed for that matter; …[10]
[10]Environment Protection Act 1970, s 45.
In the present case, the clean up notice identified s 45(2)(a)(i) as the basis on which the land was said to be polluted. It further identified s 27A(2) of the Act as the basis on which the circumstances fell within s 45(2)(a)(i). The EPA contended pollution was deemed to have occurred because a person had caused to be placed on the land matter which was prohibited under the Act.
Section 27A(2)(a) provided that:
Any person who dumps, deposits, discards or abandons or permits to be dumped, deposited, discarded or abandoned a particular kind of industrial waste —
(a) at a place not being a site licensed to accept industrial waste of that kind under this Act ...
is guilty of an indictable offence
As set out already, s 4(1) of the Act ‘industrial waste’ was relevantly defined to include:
(a) any waste arising from commercial, industrial or trade activities or from laboratories; …
‘Waste’ was relevantly defined in s 4(1) to include:
…
(b) any discarded, rejected, unwanted, surplus or abandoned matter;
(c) any otherwise discarded, rejected, abandoned, unwanted or surplus matter intended for—
(i) recycling, reprocessing, recovery or purification by a separate operation from that which produced the matter; or
(ii) sale; …
The trial judge summarised the effect of these provisions as follows:
In order to enliven the power to issue a notice under s 62A(1)(a), pollution had to have occurred or been permitted to occur at Monash Way. Under s 45(2)(a)(i) Dasma was deemed to have polluted Monash Way if it caused or permitted to be placed on the premises any matter which was prohibited under the Act. In this regard, the EPA contended Dasma breached s 27A(2)(a) because it dumped, deposited, discarded or abandoned industrial waste or permitted the same at Monash Way without a licence to accept industrial waste.
Dasma submits that the glass cullet and concrete and brick rubble were not ‘waste’ within the meaning of the Act, or, alternatively, the ‘waste’ was not ‘industrial waste’ or industrial waste ‘of a particular kind’. Dasma submits that if any of those propositions are correct, it did not contravene s 27A(2)(a) and cannot be deemed to have polluted Monash Way. Dasma submits that as a result the EPA had no power to issue a notice under s 62A(1)(a).[11]
[11]Reasons [64]–[65].

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

The trial judge recorded that, notwithstanding the breadth of the declaratory relief claimed, the issue which occupied most of the hearing was the validity of the clean up notice.[12] In this regard, the central issues were whether the materials the subject of the notice constituted ‘waste’ and ‘industrial waste’ in the relevant senses. It is these issues which are raised by grounds 2–4.
[12]Ibid [3].
In resolving grounds 2–4, it is therefore necessary to say something further about each of the key statutory concepts of ‘waste’ and ‘industrial waste.’ In so doing, it is necessary to bear in mind that these definitions fall to be construed in accordance with accepted principles by reference to the text, context and purpose of the statute.[13]

Definition of ‘waste’

[13]Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

The definition of ‘waste’ is inclusive. Waste has its ordinary meaning, but relevantly also includes ‘any discarded, rejected, unwanted, surplus or abandoned matter.’
Further, in determining whether material falls within this extended definition an intention to deal with the material in the ways specified in cl (c) of the definition (namely, recycling, reprocessing, recovery, purification by a separate operation from that which produced the matter, or sale) will not prevent the material from being characterised as waste. As the trial judge said:
The specific additional meaning is that material will still be waste notwithstanding an intention to sell, recycle or reprocess, if it is otherwise discarded, rejected, unwanted, surplus or abandoned material.[14]
[14]Reasons [88].
The potential breadth of definitions within the Act has been the subject of controversy since its introduction.[15] The way in which the Act applies the definitions is however by way of cascading requirements. Thus, in the present case, the clean up notice was concerned with a specific type of waste, namely industrial waste, which had been deposited on land.
[15]See Phosphate Co-Operative Company of Australia Limited v Environment Protection Authority (1977) 138 CLR 134.
Both at first instance and on the application for leave to appeal, Dasma made submissions with respect to the concept of waste by reference to decisions in other states concerning broadly comparable legislative provisions.
We accept that aspects of those decisions do articulate concepts which fall to be applied in the present case. However, in our view, the fundamental question confronting the trial judge was simply this: whether as a matter of fact the materials in issue fell within the ordinary meaning of the word ‘waste,’ or within the ordinary meaning of the words ‘any discarded, rejected, unwanted, surplus or abandoned matter’, read subject to the proviso contained in cl (c). It should also be borne in mind that the application of ordinary English words as descriptors of particular circumstances is essentially a question of fact,[16] although a court will err in law if it misdirects itself as to the potential ambit of that ordinary meaning or reaches a conclusion on the facts which is not open.
[16]Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; S v Crimes Compensation Tribunal [1998] 1 VR 83; Franceschini v Melbourne & Metropolitan Board of Works (1980) 57 LGERA 284; City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298; City of St Kilda v Perplat Investments Pty Ltd (1990) 4 AATR 358; Brutus v Couzens[1973] AC 854.
Returning, then, to the concept of ‘waste’, Dasma made four core submissions in the course of the hearing of the application for leave to appeal.
First, it was submitted that the concept is relative and purposive. In particular, what is waste in the hands of one party may cease to be waste when transferred into the hands of another party. We accept this proposition. A simple example is chicken manure which will be waste at an egg or broiler farm but when transported and composted may be a useful product as fertiliser for the purposes of a different farm.
Second, it was submitted that change of ownership and the nature of contractual obligations with respect to material may themselves be determinative of the question whether waste loses the character of waste and becomes product. We do not accept this submission. The question will always fall to be resolved having regard to the circumstances as a whole, including the actual physical composition, treatment and use of the material. Questions of ownership and contractual obligations may be important considerations but they must always be considered in a factual context. As the EPA submits, the contrary view would potentially subvert the protective scheme of the Act.
Third, it was submitted that the phrase ‘discarded, rejected, unwanted, surplus or abandoned matter’ does not express alternatives but is to be read as a cumulative whole. We reject this submission. The phrase encompasses related concepts which are expressed as alternatives. It will therefore be sufficient if waste is ‘unwanted’ or ‘surplus’ even if it cannot on the facts be said to be ‘discarded’ or ‘abandoned’.
Fourth, it was submitted that the question of whether something constitutes waste falls to be determined by reference to the subjective intention of the owner of the material at the relevant time. We do not accept this submission either, which could also potentially subvert the scheme of the Act. Waste in the ordinary meaning of the word may be deposited on land without any deliberate intention on the part of the owner or occupier. Thus, a camper who leaves rubbish at a camp site deposits waste whether they do so deliberately or entirely inadvertently. Likewise, an industrial land use may result in the deposit of waste due to fugitive emissions or leaks without the knowledge of, or any relevant intention on the part of, the owner or occupier.
Furthermore, cl (c) of the definition makes clear that the specified intentions referred to within it will not determine whether material is waste. The enquiry is as to whether the evidence establishes the relevant material is objectively waste despite the intentions specified.
This said, we accept that in a case such as the present the purposive enquiry must be made from the perspective of the owner of the waste.
Moreover, the concepts inherent in the alternatives of ‘any discarded, rejected, unwanted, surplus or abandoned matter’ will be more readily proved if an intention to treat the matter as having one or other of the relevant specific characteristics is proved. Nonetheless, it seems to us that waste may be objectively discarded, abandoned, or unwanted without proof of an active, subjective intention on the part of the owner that it have this character.
The trial judge found assistance in the decision of the New South Wales Court of Appeal in Environment Protection Authority v Terrace Earthmoving Pty Ltd[17] with respect to an alleged breach of s 143(1) of the Protection of the Environment Operations Act 1997 (NSW) which prohibited the unlawful transportation of waste.
[17](2013) 84 NSWLR 679 (‘Terrace Earthmoving’).
In the context of the relevant provisions, the Court held:
The correct approach is to consider whether the owner of the material at the time transportation commenced had a continuing use for the material. If the owner did not, the material was waste, at least until it was applied to a new use…[18]
[18]Ibid 687 [25].
In the present case, the trial judge expressed the view that the decision in Terrace Earthmoving supports the proposition that the relevant enquiry for the purpose of determining whether material is unwanted or surplus is whether the owner had an immediate use for the material.[19]
[19]Reasons [79].
This proposition suggests a shortcut to determining whether a particular matter falls within the statutory definition. Whilst we accept that the question whether Dasma had an immediate use for the glass cullet and mixed concrete and brick rubble was relevant to the determination of whether they respectively comprised waste, ultimately the question which fell to be determined was whether the material in question fell within the meaning of the words of the definition itself having regard to the circumstances as a whole.
We therefore accept that, as Dasma submitted on the application for leave to appeal, the test of ‘immediate use’ may in some cases be too narrow.
His Honour also found assistance in the determination of the South Australian Court of Appeal in Wood v Adelaide Resource Recovery Pty Ltd.[20] In that case, the respondent was charged with a breach of the Environment Protection Act 1993 (SA). It was alleged that it had breached a condition of a licence to conduct a waste and recycling depot.
[20](2017) 127 SASR 296 (‘Wood’).
The relevant condition prohibited the storage of waste at the premises save in an enclosed undercover picking station or a storage shed.
Waste was relevantly defined in s 3(1) the South Australian Act as follows:
waste means—
(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,
whether of value or not.
In the course of its operations, the respondent created a number of stockpiles containing a mix of plastic, timber, paper, cardboard, masonry and metals which had been the remnant product derived from a sorting process of waste received at the depot. The respondent proposed shredding the material in the stockpiles in order to create a ‘refuse derived fuel’ for industrial incineration. The material was tested and found to be suitable for use as such a fuel.

At first instance, the trial judge determined that once the material had been sorted from other materials it had lost its character as waste. Accordingly, there was no relevant breach of the licence condition. On appeal, Blue J (with whom Lovell and Hinton JJ agreed) took a different view and stated in a passage which was quoted by the trial judge in the present case:
In ordinary parlance, waste is a purposive concept. It is a relative and not absolute concept. It is not an inherent characteristic of material that it comprises waste: it must be assessed from the perspective of a person whose purpose is to be considered at the relevant time. Waste is the antithesis of a product in ordinary parlance.
This dichotomy between waste and a product is reflected in the first limb of the definition of ‘waste’ in the Act. If material that was waste has been used to make or has otherwise become a product, by a combination of what it says and does not say the definition treats the material as no longer being waste. Thus, the definition explicitly provides that the mere fact that the material is intended for sale, recycling, reprocessing, recovery or purification does not prevent it being waste if it falls within the first part of the limb. Conversely, the definition implicitly provides that if the material has actually been sold, recycled, reprocessed, recovered or purified such that it is now a product, it is no longer waste.
The conversion of unwanted waste into a product of value may be a complex process over an extended time period. 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. However, the mere fact that there may be questions of judgment involved in determining the precise point at which this occurs does not detract from the dichotomy evident in the definition between waste and a product. The definition makes plain that mere intention to convert waste into a product will not suffice: the enquiry is into objective fact.[21]
[21]Ibid 305 [44]–[46] quoted at Reasons [84] (emphasis added by the trial judge).
Blue J concluded that the unshredded stockpiled material constituted waste, but accepted that once processed and shredded into refuse derived fuel the stockpiled material may potentially have comprised a product.
Whether it would have comprised a product at that point would depend largely on economic demand for the material at that point. If there was no available market for the material, it could not be characterised as anything but waste which in future might become a product if a demand arose for it. On the other hand if there was an available market and demand for the product, the mere fact that it was not to be sold and delivered to a customer immediately would not deprive it of characterisation as a product. These questions ultimately involve matters of fact and degree. However it is not necessary to consider these questions because the material had not yet been processed to the point at which it might be considered to be a product.[22]
[22]Ibid 305 [47].
His Honour went on to observe:
The mere fact that the material has been subject to a degree of processing does not itself convert that material into a product: it is necessary to make a holistic assessment. The mere fact that [the respondent] considered that the material was of value to it is not sufficient to render it a product: it is necessary that objectively it has been converted into a valuable product.[23]
[23]Ibid 306 [48].
We respectfully agree with the observations in Wood that:
•As a matter of its ordinary meaning, ‘waste’ is a purposive concept and is the antithesis of product.
•In many cases it will be a question of fact and degree whether waste has ceased to be waste and become a product.
•The specific statutory provisions relating to intention (which are relevantly analogous to the Victorian provisions) make clear that the mere fact that material is intended for recycling does not prevent it from being waste.
•It is necessary for the court to make an objective assessment having regard to the circumstances as a whole.
In the present case, McDonald J stated that the ‘test’ applied in Wood requiring an enquiry into the objective fact of whether material is waste, applies equally to the definition under the Act.[24] He summarised that test as follows:
First, it is necessary to determine whether the material is ‘discarded, rejected, abandoned, unwanted or surplus matter’. This requires identifying the purposes for which the owner held the material in order to ascertain whether, at the relevant time, it held some objectively useful or otherwise valuable function and thus was not considered ‘waste’. This objective characterisation may rely on, among other things, proof that the material has been processed to such a degree that it is useful. Whether a material is useful will, in turn, rely on proof that the owner has a genuine use for the material at the relevant time, or that there is an immediate market for the material. However, if it is determined that the material is ‘discarded, rejected, abandoned, unwanted or surplus matter’, no weight can be placed on evidence of any future intended use for the material.[25]
[24]Reasons [88].
[25]Ibid [86].
We agree that what is required is a purposive enquiry of the type identified. However, the ultimate test is simply the application of the statutory criteria to the facts.
We should note that it was submitted on behalf of Dasma that the application of the test summarised above led to an erroneous emphasis on the presence of an immediate market for the material at issue.
There is no room conceptually for a judicial gloss on the meaning of the statutory words and there is a risk in applying any alternative formulation of the statutory test derived from particular circumstances to other circumstances. The formulation articulated by the trial judge is correct in principle but responds to a particular kind of fact situation in its elaboration of matters potentially relevant to the exercise of characterisation.

Definition of ‘industrial waste’

We turn then to the definition of ‘industrial waste’. As set out above, s 4(1) of the Act relevantly defined ‘industrial waste’ as including any waste ‘arising from commercial, industrial or trade activities or from laboratories’.
This definition again turns on ordinary words. Hence, if the materials in issue in the present case constituted ‘waste’, the question of whether they also constituted ‘industrial waste’ turned on their origin, namely whether they arose from commercial, industrial or trade activities.

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

After ruling on the admissibility of expert evidence adduced by Dasma at trial and setting out the elements of the statutory scheme bearing on the issues in the case, the trial judge determined the central factual issues in dispute in favour of the EPA. The agreed summary filed on behalf of the parties summarises his reasoning as follows:
25.The primary judge found that each of the glass cullet and the concrete and brick materials were ‘waste’, because:
(a)      In respect of the glass cullet:
(i)When the Applicant received it at Tramway Road, it was commingled waste and the process of sorting the glass cullet from the commingled waste at Tramway Road did not render it a ‘useful’ product because it was contaminated with other materials and could not be considered useful for glass recycling purposes without further processing by the likes of Visy and SKM;
(ii)Even if the sorting of the glass cullet from the commingled materials transformed it into a ‘useful’ material, there was no ‘immediately available market’ for it because neither Visy, SKM nor Polytrade were prepared to pay for it from about August 2016;
(iii)Further, the glass cullet the subject of the Notice was waste arising from and surplus to the Applicant’s commercial activities at Tramway Road where it conducted an industrial material recycling facility.
(b)      In respect of the concrete and brick:
(i)The materials were deposited by the public at Tramway Road before being transported to Monash Way; and
(ii)The uncrushed material could not be characterised as anything but ‘waste’ because it had not been processed to a point where it had become in any way useful;
(iii)The crushed concrete and brick material, whilst subject to a degree of processing, was not lawfully processed (because the Applicant did not have a planning permit to operate its crusher) and therefore there was no legitimate market for it, such that it was surplus; and
(iv)In any event, in May 2018, the Applicant had no use for the material and it was accordingly, ‘surplus’, ‘discarded’ and ‘unwanted’ material.
26.Further, the primary judge found that each of the glass cullet and the concrete and brick materials was ‘industrial waste’ because:
(a)      In respect of the glass cullet:
(i)The stockpiles at Monash Way contained a mix of both the Applicant’s and Polytrade’s glass cullet, and while the provenance of Polytrade’s glass cullet was unknown, they each contained at least some materials from commercial, industrial or trade activities (whether of Polytrade or from commingled recyclables collected from commercial venues within the Council area); and
(ii)In any event, the glass cullet at Monash Way arose from the Applicant’s commercial activities at Tramway Road.
(b)      In respect of the concrete and brick materials:
(i)the stockpiles comprised at least some material from commercial sources accepted at Tramway Road; and
(ii)In any event, the stockpiles of the material at Monash Way arose from the Applicant’s commercial activities at Tramway Road.[26]

Analysis

[26]Agreed Summary for Court of Appeal filed 13 April 2022, [25]–[26].

The answers to the relevant questions involved the drawing of inferences from the evidence as a whole as to the proper characterisation of the primary facts in the case.
The task of this Court is, in turn, that described by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[27]
A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law.[28] Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’[29] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.[30] Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.[31]
[27](2019) 266 CLR 129, 148–9 [55] (citations in original).
[28]Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686 [43].
[29]Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 687 [43].
[30]Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392, 434–5 [144]; Thorne v Kennedy (2017) 263 CLR 85, 104 [42].
[31]Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs A-CJ), Jacobs and Murphy JJ); see also Fox v Percy (2003) 214 CLR 118, 127 [25].
The starting point in considering the characterisation issue is that the commingled waste received by Dasma at the MRF remained waste until its character was transformed by further process. This was accepted by Counsel for Dasma in the course of argument on the application for leave to appeal.
The trial judge concluded that the glass cullet constituted waste in the first instance simply by reason of its physical composition and the presence of plastic waste remaining within it. In his view, the glass cullet had not undergone processes sufficient to produce a useful product.
The findings of fact on which the judge’s conclusion turned are not themselves the subject of challenge. The EPA evidence including the photographic evidence demonstrated the contamination of the glass cullet with plastic waste and the oral evidence called on behalf of Dasma made clear that further removal of waste was required before the cullet could be used as a feedstock for glass manufacture.
Nonetheless, the evidence went further. The evidence demonstrated that glass cullet in the form deposited at Monash Way was sufficiently processed for the purpose of supply to glass manufacturers. It was thus in a usable form and had been the subject of supply until Dasma determined that the net cost of such supply became prohibitive in 2016.
Likewise, it had been the subject of stockpiling by Polytrade as a usable input to its manufacturing operation until 2017.
In these circumstances, we respectfully disagree with the judge’s conclusion that the physical composition of the cullet in itself compelled the conclusion that the cullet comprised waste.
However, the difficulty which confronts Dasma is that, as the trial judge further found, there was no market for the cullet at the date of the clean up notice and, since mid-2016, Dasma had stockpiled the cullet because the cost of applying it to its potential use was prohibitive. Further, as was conceded in the course of the trial, at the date of the clean up notice Dasma did not know if the market with respect to cullet would change.[32] As the trial judge found in the passage we have quoted at [33] above, Dasma stockpiled the glass cullet in the hope that economic demand for glass cullet would pick up at some indefinite point in the future. This finding was not the subject of specific challenge on appeal.
[32]Reasons [103].
In these circumstances, we are satisfied that the cullet was ‘unwanted’ and ‘surplus’ to Dasma’s business at the date of the clean up notice. The cullet was neither being applied to any ongoing recycling purpose, nor the subject of any actual proposal that it be so applied. It had been stockpiled for almost two years.
Insofar as Dasma asserts that there remained a residual intention to recycle the cullet if and when market conditions improved, the material remained unwanted and surplus until such circumstances eventuated.
Clause (c) of the definition of waste also confronts Dasma. Thus, the evident intention of cls (b) and (c) of the definition is to extend the ordinary meaning of the concept of waste. Insofar as the cullet was unwanted and surplus save for a residual intention to supply the cullet to a third party for recycling if and when the market changed, such an intention was one to recycle matter by a separate operation from that which had produced the cullet. The glass cullet therefore fell within the terms of cl (c).
We therefore agree with the judge that the glass cullet was correctly characterised as ‘waste’.
It is necessary to then consider the concrete and brick rubble. The concrete and brick rubble which had not been processed constituted demolition waste which had no value or use until it was crushed.
Dasma submitted that the rubble was in effect feedstock for the production of crushed aggregate material. However there were two problems with this submission.
First, at the time the notice was issued there was no current lawful crushing operation at Tramway Road. Insofar as the portable crusher had been used in the past such use had occurred unlawfully without required permission under the local planning scheme. The concrete and brick rubble thus remained waste until it was removed elsewhere for further processing or the crushing operation was regularised. Consistently with Part 4 of the clean up notice, this could be by transferring it to a recycling facility permitted to accept it, or alternatively by obtaining the required permits to recycle it on the premises. In the absence of such steps, and in the circumstances which pertained at the date of the clean up notice, the concrete and brick rubble remained waste.
Secondly, the evidence demonstrated stockpiles of rubble had accumulated which were far in excess of the needs of any ongoing historic aggregate crushing operation. Thus, the trial judge found:
Dasma’s production of the road base material far outstripped any actual demand for it. The large mounds of uncrushed concrete and brick rubble at Monash Way support this conclusion. If Dasma had sought to use the road base material for its own operations, the actual application of the material may have transformed it into something other than ‘waste’.[33] However, whilst it was stockpiled, the road base material was ‘surplus’, ‘discarded’ and ‘unwanted’ material.[34]
[33]Terrace Earthmoving, 689 [34].
[34]Reasons [111] (citation in original).
On the facts as found by the judge, the concrete and brick rubble was therefore ‘unwanted’ at the MRF and ‘surplus’ to the historic crushing machine operation at Tramway Road.
In our view, his Honour was therefore correct to characterise the concrete and brick rubble as waste.
Although the judge went further in finding that the crushed material was also waste, it appears that this was neither appropriate nor necessary. As indicated above, the first issue in the case was whether the glass cullet and the concrete and brick ‘rubble’ materials were correctly characterised. This issue derived from the terms of the declarations which referred in turn to ‘domestic source brick and concrete waste material accepted and acquired by the plaintiff as recyclable resource material’; ‘the brick and concrete material deposited by the plaintiff for storage at the plaintiff’s Monash Way premises pending crushing’; and ‘brick and concrete resource materials’.[35]
[35]Declarations 6, 7 and 9.
Further, as we have noted, the clean up notice itself contemplates that the lawful crushing of the concrete and brick material would remove the waste which had accumulated.
Nonetheless, for the sake of completeness and the avoidance of doubt, we record that in our view the crushed material which was onsite at the date of the clean up notice was not waste. It had been processed to create a usable product which was applied to intermittent purposes of value to the owner for road making on or off site.
The fact that the crushed aggregate had been produced without a planning permit did not render it waste. If it had been crushed at another location (with or without a planning permit) and transported to Tramway Road it would not have constituted waste. It had been transformed into a useable product. Conversely, as we have said, the fact that there was no lawful ongoing crushing operation at Monash Way was relevant to the characterisation of the concrete and brick rubble as waste because it left the rubble stockpiles in a permanent uncrushed state.
Further, although the trial judge found that there was no immediate use for the crushed aggregate,[36] there was no satisfactory basis for concluding that it had no continuing use or ongoing value.
[36]Reasons [110].
It follows that the phrase ‘mixed concrete and brick waste’ referred to in the clean up notice requirements is to be understood as referring to the concrete and brick rubble and not the crushed aggregate.
In turn, the application for declarations was correct to raise the issue of characterisation of the rubble material as distinct from crushed aggregate and the trial judge was correct to determine this issue ultimately in the following terms:
In May 2018, when the Notice was issued, the glass cullet and the concrete and brick rubble were ‘waste’ within the meaning of the Act.[37]
[37]Ibid [112].

The second main issue which confronted the trial judge was whether the waste was industrial waste.
His Honour made factual findings which underpinned his conclusions on this issue. No direct challenge is made to these findings in the proposed grounds of appeal and no basis has been established for impugning them.
The trial judge concluded that the glass cullet deposited at Monash Way fell within the definition of industrial waste because:
•the glass cullet originated from both the comingled recyclable waste received from the Council at the MRF and from Polytrade, a commercial glass manufacturer; and
•in any event, both the glass cullet received from the Council at the MRF and the material received from Polytrade comprised waste which arose from Dasma’s current activity at the MRF.
Neither finding of fact has been shown to be against the evidence or the weight of the evidence. His Honour’s conclusion as to the first matter, in particular, depended in part on his assessment of the credit of a witness called on behalf of Dasma.[38] In this respect, he had an advantage which we do not have. Furthermore, his Honour’s conclusion was not inherently improbable or contrary to compelling inferences having regard to the matters to which he referred.
[38]Ibid [114]–[118].
The trial judge also concluded that the concrete and brick rubble was industrial waste. This conclusion relied on the size and reinforced composition of the bulk of the concrete dumped on site. No error has been shown in relation to this finding.

Summary

In the light of the matters above, we are not satisfied that the judge erred in finding that the glass cullet or concrete and brick rubble materials were ‘waste,’ and also ‘industrial waste.’ It follows that grounds 2–4 must be rejected.

(5) Ground 5 — s 27A(2)(a)

The third issue bearing on the validity of the clean up notice related to the construction of s 27 and the relevant meaning of ‘licensed premises’.
Section 27A(2)(a) creates an offence with respect to the dumping or depositing of ‘a particular kind of industrial waste… at a place not being a site licensed to accept industrial waste of that kind under this Act.’
Dasma submitted that, even if the materials stockpiled at Monash Way comprised industrial waste, they did not fit within this section given there was no requirement for it to hold a licence under the Act.
The trial judge dealt with this point as follows:
Dasma concedes that Monash Way was not licensed to receive any type of industrial waste, but submits that there was no requirement for it to hold any licence and therefore there was no contravention of s 27A(2). This contention is based on two propositions. First, Dasma submits that the words in s 27A(2)(a) ‘a particular kind’ and ‘of that kind’ should be read as a reference to ‘prescribed industrial waste’. Second, Dasma submits that the words ‘not being a site licensed to accept [prescribed industrial waste] under this Act’ means there must be some pre-existing requirement for those premises to hold a licence for accepting ‘prescribed industrial waste’. Dasma submits that because ‘scheduled premises’ are required to be licensed to hold ‘prescribed industrial waste’,[39] the reference to a ‘place’ and a ‘site’ should read as a reference to a ‘scheduled premises’. Dasma submits that s 27A(2)(a) prohibits the depositing of prescribed industrial waste ‘at a place that is a scheduled premises not being a site licensed to accept prescribed industrial waste under this Act where a licence is required by this Act’.
Dasma submits that, because the glass cullet and concrete and brick rubble were not ‘prescribed industrial waste’, Monash Way was not a ‘scheduled premises’. Consequently, there was no requirement under the Act to hold a license. Therefore, s 27A(2)(a) has no application to the glass cullet and concrete and brick rubble deposited at Monash Way.
I reject this submission. If Parliament had intended to include ‘prescribed industrial waste’ by use of the phrases ‘a particular kind’ and ‘of that kind’, it would have been a simple matter to expressly refer to prescribed industrial waste, as occurs elsewhere throughout the Act.[40] Where Parliament could have used the same word, but elects to use a different one, an intention to change the meaning is evident.[41] The reference to ‘a particular kind’ and ‘of that kind’ must be so read. The reference to ‘a particular kind’ and ‘of that kind’ recognises that a premises may be licensed to accept some types of industrial waste, but not others.
There is also no basis for Dasma’s second proposition. Section 27A(2) applies to a person who engages in a proscribed act with respect to a ‘site’. Other offences within the same section, such as s 27(1), apply specifically to ‘a person who is the occupier of a scheduled premises’. If Parliament had intended to confine the operation of s 27A(2) to ‘scheduled premises’, instead of a ‘place’ or ‘site’ more generally, it would have employed similar language to that in s 27(1).
The reference to ‘a place not being a site licensed to accept industrial waste’ directs attention to whether or not the site is licensed. Nothing in the text calls for an antecedent inquiry into whether the Act compels the occupier of the premises to hold a license. The glass cullet and concrete and brick rubble were industrial waste, and Dasma did not possess a licence to store that type of industrial waste at Monash Way. Consequently, Dasma breached s 27A(2). There was an act of pollution for the purposes of s 45 and the EPA had power under s 62A(1)(a) to issue the Notice. Accordingly, there is no basis for granting the Notice invalidity declaration.[42]
[39]This was said to arise from the combination of the requirement of a license under s 20(1), s 4(1) (definition of ‘scheduled premises’ para (a)) as expanded on by sch 1 of the Environment Protection (Scheduled Premises) Regulations 2017 (Vic), in particular sch 1, item 150.1.
[40]See, eg, Environment Protection Act 1970 (Vic) ss 19A(5)(a), 19C(2), 20(9)(a)(iii), 21(1)(e), 22(1)(b).
[41]Bayley v The Queen (2013) 43 VR 335, 345–6 [47].
[42]Reasons [130]–[135] (citations in original; other citations omitted).
These reasons are in our view comprehensive and correct, with the result that ground 5 is unsustainable.
There is, however, a subsidiary argument which was advanced on the application for leave to appeal on behalf of Dasma relating to this issue which should be addressed. Part 4 of the clean up notice gave examples of how Dasma could comply, partly in terms which referred to disposal ‘to a facility that is licensed or permitted to accept waste of that kind.’ Dasma submitted that reference to disposal to a facility which was not licensed was inconsistent with the EPA’s case in respect of Monash Way.
This submission is misconceived. The EPA’s case was that it was unlawful to dump, deposit or abandon the waste on land. The receipt of the waste at the MRF or disposal to another processing facility was not in issue. Such facilities could accept the waste despite the fact that they did not require a licence to do so pursuant to the Act.

Summary

Given each of grounds 2–5 have failed, it follows that his Honour was correct to conclude that the clean up notice was valid, and for him to make the declaration he did.

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

We turn then to elaborate our conclusions with respect to the applications for leave to appeal relating to Dasma’s further claims for declarations.
Insofar as the applicant repeated contentions about the meaning of ‘waste’ and ‘industrial waste’ those contentions overlap with the contentions in grounds 2–5 and have already been dealt with, above.
Insofar as the applicant complained that there was an alleged failure to exercise jurisdiction, they can be readily rejected for the reasons which follow.
In what is sometimes referred to as the Hobart Airport case,[43] Gageler and Gleeson JJ stated the relevant distinction by citing the following authority:
It is thus important to distinguish between the jurisdiction of the court to entertain the [proceeding] at all, ie to embark upon the enquiry whether facts exist which would entitle the court to grant the relief claimed, and a settled practice of the court to exercise its discretion by withholding the relief if the facts found to exist disclose a particular kind of factual situation. The application of a discretion to refuse relief even though this may be pursuant to a settled practice is an exercise of jurisdiction, not a denial of it.[44]
[43]Hobart International Airport Pty Ltd v Clarence City Council; Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council (2022) 398 ALR 214, 237 [77] (citation in original).
[44]Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136, 1155, quoted in Johnco Nominees Pty Ltd v Albury-Wodonga (New South Wales) Corporation [1977] 1 NSWLR 43, 55–6.
In the present case, his Honour concluded that there was utility in determining the validity of the notice rather than leaving that issue to be determined by way of collateral challenge.[45] Conversely, he determined that there was no utility in determining the issues raised by the other declarations sought with respect to aspects of the legality of Dasma’s ongoing operations.[46] His Honour elaborated the basis of his conclusions with respect to the utility of declarations going to matters other than the validity of the notice. These included the fact that the declarations in issue were not directed to any extant legal controversy between the parties, were not related to Dasma’s ongoing operations because the Act had been repealed, and/or were too uncertain and broad.[47]
[45]Reasons [5].
[46]Ibid [6].
[47]Ibid [136]–[147].
The trial judge thereby clearly exercised jurisdiction, but refused to make the declarations for discretionary reasons. In such circumstances, grounds 1 and 6 are without merit and cannot be maintained.
It is unnecessary to go further, however, we would observe that his Honour was entitled to refuse relief for a combination of reasons:
•The general principle is that relief should be granted sparingly by way of declaration in respect of matters which are the subject of criminal proceedings. Thus, in Gedeon v Commissioner of the New South Wales Crime Commission, the High Court (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) stated:
With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings.[48] The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.[49]
•Declarations as to the effect of the now repealed provisions of the Act lack utility. Amongst other things, the definition of ‘waste’ has been materially amended.
•The obligations to comply with environmental legislation are continuing ones and turn on the facts at particular points in time.
•The factual premise underlying the declarations sought substantially falls away by virtue of our conclusions with respect to ‘waste’ and ‘industrial waste’.
•A number of the declarations sought are in any event too broad, uncertain and of doubtful effect.
[48]Sankey v Whitlam (1978) 142 CLR 1. See also as to the undesirable fragmentation of the criminal process R v Iorlano (1983) 151 CLR 678; Yates v Wilson (1989) 168 CLR 338; R v Elliott (1996) 185 CLR 250.
[49](2008) 236 CLR 120, 133 [23] (citation in original).

(7) Conclusion

The judge correctly characterised the glass cullet and concrete and brick rubble materials as ‘waste’ and ‘industrial waste.’ Although we would grant leave to appeal in respect of grounds 2–4, the appeal will be dismissed.
There is no merit in the other grounds. More particularly, there was no failure to exercise jurisdiction, nor did the judge misconstrue s 27. Leave to appeal will otherwise be refused.
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ANNEXURE A

1. A declaration that:
On the proper construction of the definition of ‘waste’ in s4(1) of the Environment Protection Act 1970 (the Act), the recyclable materials accepted and sorted at the plaintiff’s Sorting Facility under its Acceptance and Processing of Recyclables Contract No. 12979 (Contract 12979), with Latrobe City Council ceased to be ‘waste’ when title to the Recyclables passed to the plaintiff.

2. A declaration that:
Pursuant to the terms of Contract No. 12979 executed between the plaintiff as contractor and Latrobe City Council as principal on 10 August 2011; and as extended for a term in July 2018 and for a further term in July 2020, in performance of which the plaintiff provided to the principal a Recyclables Acceptance and Sorting Service in respect of ‘collected material’ delivered to the plaintiff’s Sorting Facility at Tramways [sic] Road, Morwell by the ‘Recyclables Collection Service Contractor’, and otherwise according to law;
(a)The plaintiff acquired title, ownership, possession and control in rem of ‘Recyclables’ as defined in the Contract which vested in the plaintiff upon acceptance of the collected material into the plaintiffs Tramways Rd Sorting Facility; and
(b)the plaintiff’s vested title and rights as owner of the Recyclables were unencumbered and free of continuing categorisation of the Recyclables as ‘waste’ as defined in s4(1) of the Act.

3. A declaration that:
Upon the proper construction of the definition of ‘industrial waste’ in s 4(1) of the Act;
(a)‘Recyclables’ and ‘collected materials’ as defined in Contract No. 12979 sourced in the domestic yellow bin kerbside ‘Recyclable Collection Service’ undertaken by the Latrobe Council ‘Recyclables Collection Service Contractor’, title to which vested in, and passed to the plaintiff, upon delivery and acceptance of same into the plaintiffs Sorting Facility, was not and is not ‘industrial waste’ as defined in s4(1) Environment Protection Act 1970 accepted into the possession, ownership and control of the plaintiff, whether in consequence of the plaintiff’s acceptance and processing operations pursuant to Contract No. 12979 or otherwise; and
(b)glass cullet with plastic residues sourced in the yellow bin kerbside collection delivered into the plaintiff’s Sorting Facility by the Recyclables Collection Service Contractor and accepted and sorted by machine and hand operations of the plaintiff is not industrial waste in storage at any material time at the plaintiff’s Tramways Road Sorting Facility and/or at the plaintiff’s Monash Way premises.

4. A declaration that:
(a)The plaintiff was permitted to deposit for storage recyclable glass cullet material selected by the plaintiff’s operations at the Sorting Facility as reuse resource material in the ownership or possession of the plaintiff and in storage at Tramways Road, at the plaintiffs Monash Way premises; and
(b)glass cullet recyclable materials selected by the plaintiff’s operations at the Sorting Facility and deposited for storage at the plaintiff’s Monash Way premises is not prohibited matter for the purposes of s45(2)(a)(i) of the Environment Protection Act 1970.

5. A declaration that:
The Clean Up Notice 90008833 (date of issue 24 May 2018) was vitiated by misconstruction of law and by jurisdictional error in consequence of which the requirements mandated in Part 3 of the Notice, in particular requirements 5.2 and 5.4, are unenforceable; non-compliance with which is not an offence contrary to s62A(3) of the Act.

6. A declaration that:
Upon the proper construction of the definition of ‘waste’ and of ‘industrial waste’ in s4(1) of the Act, domestic source brick and concrete waste material accepted and acquired by the plaintiff as recyclable resource material at its Tramways Road premises;
(a)ceased to be ‘waste’ when title in the brick and concrete materials passed to the plaintiff upon the plaintiffs acceptance of same; and
(b)was not ‘industrial waste’ when transported by the plaintiff to its premises at Monash Way for crushing for beneficial reuse; and
(c)was not ‘industrial waste’ in storage at the plaintiff’s Monash Way premises.

7. A declaration that:
Upon the proper construction of the Act, the brick and concrete material deposited by the plaintiff for storage at the plaintiff’s Monash Way premises pending crushing as a beneficial reuse resource material is not prohibited matter for the purposes of s45(2)(a)(i) of the Environment Protection Act 1970.

8. A declaration that:
Upon the proper construction of s62A(1)(a) of the Act, the power to issue Clean Up Notice 90008833 was not engaged by Ms. Cummings having ‘formed a view and [sic being] ... satisfied’ that the plaintiff was the occupier of premises ‘upon or from which pollution has occurred or been permitted to occur’ in the absence of the jurisdictional fact that the plaintiff was the occupier of premises so affected.

9. A declaration that:
Clean Up Notice 90008833 Part 3 requirements 3.2 and 3.3, that the plaintiff remove the recyclable glass cullet and brick and concrete resource materials which are the subject of the Notice from its Monash Way premises to a premises licensed or permitted to accept waste of that kind by 3 September 2018, are beyond power and unenforceable.

10. Such further or other orders as the Court deems fit.[50]
[50]Originating Motion between Parties filed 1 February 2021, 3–5 (emphasis in original).

ANNEXURE B

Sample photographs (3) of the glass cullet which demonstrate that the extent of its contamination with materials other than glass was variable.

[51]

[51]Exhibit SAC-2 to the Statement of Sarah Anne Cumming.

[52]

[52]Exhibit SAC-2 to the Statement of Sarah Anne Cumming.

[53]

[53]Exhibit SAC-2 to the Statement of Sarah Anne Cumming.

Sample photographs (2) of concrete and brick rubble together with crushed concrete and brick material.

[54]

[54]Exhibit SAC-2 to the Statement of Sarah Anne Cumming.

[55]

[55]Exhibit SAC-2 to the Statement of Sarah Anne Cumming.

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[2022] VSCA 248

17 November 2022