Dasma Environmental Pty Ltd v Environment Protection Authority
[2021] VSC 798
•3 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2021 00184
| DASMA ENVIRONMENTAL PTY LTD (ACN 144 694 780) | Plaintiff |
| v | |
| ENVIRONMENT PROTECTION AUTHORITY | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27, 30, 31 August 2021; 1, 20 September 2021 |
DATE OF JUDGMENT: | 3 December 2021 |
CASE MAY BE CITED AS: | Dasma Environmental Pty Ltd v Environment Protection Authority |
MEDIUM NEUTRAL CITATION: | [2021] VSC 798 |
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ENVIRONMENTAL LAW — Defendant issued plaintiff a clean up notice in respect of stockpiles of glass cullet and concrete and brick rubble — Whether glass cullet and concrete and brick rubble industrial waste under the Environment Protection Act 1970 — Whether clean up notice invalid — Whether court should hear and determine claim for declaration of invalidity of notice — Whether other claims for declaratory relief hypothetical and abstract by reason of the repeal of Environment Protection Act 1970 — Clean up notice not invalid — Environment Protection Act 1970 ss 4, 27(1), 27A, 45, 62A — Evidence Act 2008 ss 55, 56, 79 — Constitution Act 1975 s 85 — Supreme Court Act1986 s 36 — Environment Protection Amendment Act 2018 s 63 — Protection of the Environment Operations Act 1997 (NSW) s 143 — Environment Protection Act 1993 (SA) s 3(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr H Carmichael and Ms L Barrett | Oakley Thompson & Co Pty Ltd |
| For the Defendant | Mr T Howard SC and Ms E Smith | Environment Protection Authority |
HIS HONOUR:
Introduction
On 24 May 2018, the plaintiff, Dasma Environmental Pty Ltd (‘Dasma’), was issued a clean up notice (‘the Notice’) by the defendant, the Environment Protection Authority (‘EPA’). The subject matter of the Notice was stockpiles of glass cullet and concrete and brick rubble at premises occupied by Dasma. The Notice was premised on the glass cullet and concrete and brick rubble being ‘industrial waste’ within the meaning of s 4(1) of the Environment Protection Act 1970 (‘the Act’). On 23 May 2019, the EPA commenced summary criminal proceedings against Dasma alleging non-compliance with the Notice.
On 25 January 2021, Dasma commenced proceedings in this Court claiming nine declarations. The fifth declaration challenges the validity of the Notice which underpins the criminal proceedings (‘the Notice invalidity declaration’). Following the commencement of the proceeding on 25 January 2021 the criminal proceedings in the Magistrates’ Court were stayed, without opposition from the EPA.
Notwithstanding the breadth of the declaratory relief claimed by Dasma, the issue which occupied most of the five days of hearing was the validity of the Notice. There is some doubt as to whether Dasma could mount a collateral challenge to the validity of the Notice as part of its defence to the criminal proceedings. It is common ground that if Dasma obtains a declaration that the Notice was invalid this would be likely to bring the criminal proceedings to an end. The validity of the Notice was the subject of detailed submissions in the present proceeding.
Dasma contends that the Notice issued by the EPA under s 62A(1)(a) of the Act constituted a wrongful exercise of power. This contention rests on two propositions. First, that the subject matter of the Notice, namely, the stockpiles of glass cullet and concrete and brick rubble, are not ‘waste’ within the meaning of the Act. Consequently, the EPA had no power to issue the Notice. Second, Dasma submits in the alternative that even if the material is ‘waste’, it is not ‘industrial waste’, let alone a ‘particular kind of industrial waste’. Consequently, s 62A did not confer power on the EPA to issue the Notice.
I consider that there is utility in the validity of the Notice being determined in this Court rather than by way of collateral challenge in the criminal proceedings in the Magistrates’ Court. For reasons set out in this judgment, I have rejected Dasma’s primary contention that the glass cullet and concrete and brick rubble were not waste as defined in s 4(1) of the Act. I have also rejected Dasma’s alternative contention that even if the material was waste, it was not ‘industrial waste’ within the meaning of the Act. I have concluded that the Notice was valid.
Unlike Dasma’s proposed declaration in respect of the validity of the Notice, there is no utility in the Court granting the other eight declarations sought by Dasma. Some of those declarations are of no utility by reason of my conclusion in respect of the application for the Notice invalidity declaration. The remaining declarations seek judicial endorsement of the legality of the manner in which Dasma is currently conducting its waste recycling business. There is no utility in granting this relief. In this regard, a primary consideration is the repeal of the Act on 1 July 2021 by s 63 of the Environment Protection Amendment Act 2018. Any consideration of the lawfulness of the business operations currently conducted by Dasma is governed by the extant legislation.
Background
Dasma conducts a recycling business. The company has two directors, Mr Eden Teodoro Di Sipio and Mr Eden Alfio Di Sipio. Any reference to ‘Mr Di Sipio’ throughout this judgment is a reference to Mr Eden Alfio Di Sipio, unless otherwise stated.
At all material times Dasma was the occupier and lessee of the land located at 85 Tramway Road, Morwell (‘Tramway Road’). On these premises, Dasma operates a materials recycling facility pursuant to a planning approval issued by the Latrobe Shire Council. Pursuant to an agreement with the Latrobe City Council dated 10 August 2011 (‘Contract 12979’), Dasma receives comingled recyclables from the Latrobe City Council at Tramway Road. As part of this operation, Dasma processes recyclables while disposing of unrecyclable materials.
Dasma also occupies and leases land known as Lot 2, Monash Way in Hazelwood North (‘Monash Way’). There are no buildings situated on the site, although the premises house a portable concrete crushing machine which was operated by Dasma from time to time. Monash Way received planning approval for use as a materials recycling facility on 15 August 2019. This planning approval permits Dasma to recycle concrete, brick, masonry, and stone and to recover steel from the crushing of these products.
The glass cullet
Dasma entered into Contract 12979 with the Latrobe City Council on 10 August 2011. Under Contract 12979, Dasma was paid $109.07 per tonne[1] to receive comingled recyclable material collected by the council from kerbside ‘yellow top’ or ‘yellow lid’ recycling bins. However, the material was not restricted to domestic waste, and could include materials collected from commercial and non-residential properties.[2]
[1]CB765, ‘Price Increase Proposal’, August 2020.
[2]CB251, ‘Appendix 1 to Contract 12979’, 10 August 2011; Transcript of Proceedings, T 224 L 6–8 (30 August 2021).
After comingled recyclables are received at Tramway Road, they are sorted into different product streams. Within the glass recyclables product stream, the glass is sorted according to size. Mixed coloured glass fragments between 12mm and 60mm in diameter are known as ‘glass cullet’, whereas glass fragments smaller than 12mm in diameter are known as ‘glass fines’. Despite this sorting process, other small materials such as plastic, metal and paper often become mixed with the glass cullet. Glass cullet constituted approximately 16% of all materials processed at Tramway Road.[3]
[3]CB786, ‘Price Increase Proposal’, August 2020.
Prior to mid-2016 Dasma’s practice was to on-sell glass cullet to companies such as SKM Recycling (‘SKM’), Visy and Polytrade Recycling Pty Ltd (‘Polytrade’) for a ‘rebate rate’. Dasma would sell the glass cullet ‘as is’ and would not separate out the plastic and other materials mixed in with the glass.[4] Unlike Dasma, these companies had beneficiation facilities that would enable them to process glass cullet into recycled glass.
[4]CB19, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [43].
In April 2012, Dasma received a rebate rate of $12.50 per tonne of cullet delivered to Visy. However, as a result of significant problems in the processing and export market for glass cullet, in March 2013 Visy informed Dasma that it would no longer pay Dasma for glass cullet.[5]
[5]Ibid CB20, [46]–[47].
From August 2013, SKM continued to receive higher quality mixed glass at a price of $10 per tonne. However, by mid-2016, SKM began charging Dasma $40 per tonne to accept the glass cullet. SKM’s fee increased to $100 per tonne by August 2018.
Pursuant to an oral agreement with Polytrade formed on 10 February 2015, Dasma began receiving 700–900 tonnes of Polytrade’s glass cullet per week. Dasma received $8,000 per month for stockpiling the cullet pending its removal by Polytrade.[6] A memo detailing the terms of the oral agreement stated that it had an initial term of ‘about 6 months’. However, Dasma continued stockpiling Polytrade’s glass cullet until December 2017.[7]
[6]CB448, ‘Agreement with Polytrade Recycling Pty Ltd’, 10 February 2015.
[7]CB23, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [59].
By mid-2016 Dasma had run out of storage space for glass cullet at Tramway Road. In about July 2016, Dasma decided to relocate glass cullet from Tramway Road to Monash Way.
The concrete and brick rubble
In addition to receiving comingled recyclables, Dasma also receives concrete and brick rubble at both Monash Way and Tramway Road. Before 2005, a predecessor company, Dasma Industries Pty Ltd (‘Dasma Industries’) was licensed to operate a concrete crushing plant at Monash Way. The operation involved members of the public depositing concrete and brick rubble to the premises, whereafter Dasma Industries would process it using a concrete crusher. Dasma Industries would then sell the processed material as road base.[8]
[8]Ibid CB27 [81].
Dasma continues to operate the concrete crushing machine at Monash Way. From at least March 2016, the Latrobe City Council has advertised Tramway Road as available to receive concrete and brick rubble from the public. The concrete and brick rubble is deposited by the public at Tramway Road, before being transported to Monash Way where it is processed by the concrete crushing machine.[9] Dasma did not, at any relevant time, hold a permit to conduct such an operation at Monash Way.
[9]Ibid CB28 [88].
Mr Di Sipio gave evidence that when processed crushed concrete and brick rubble was mixed with soil and glass it became suitable for use as a road base material, much like had been done prior to 2005. Mr Di Sipio further stated that the road base material was used by Dasma, and had also been sold to local customers. However, Mr Di Sipio could not recall any particular instance of selling the material, stating merely that ‘we may have made a sale before’.[10]
[10]Transcript of Proceedings, T 306 L 28–30 (31 August 2021).
The EPA inspection and first clean up notice
Monash Way was inspected by EPA officers on 22 February and 14 March 2018. The EPA officers observed numerous stockpiles on the premises, including a number of stockpiles of glass cullet. One of the EPA officers, Ms Sarah Cumming, noted that the stockpiles of glass cullet contained various plastics and metals, as well as some isolated items of e-waste.[11] The officers also observed five large stockpiles of mixed concrete and brick.[12]
[11]CB837, ‘Affidavit of Sarah Anne Cumming’, 4 June 2021, [8].
[12]CB88, ‘Section 62A Clean Up Notice’, 24 May 2021, [1.14].
Following the inspections, the EPA served Dasma with two notices under s 55(3D) of the Act on 14 March 2018.[13] The first notice required Dasma to identify the occupier of the ‘mixed glass & plastic waste stockpiles’. The second notice required Dasma to identify the occupier of Monash Way. Mr Di Sipio returned these forms on 19 March 2018, nominating Dasma as the occupier of both the premises and the stockpiles at Monash Way.[14]
[13]CB65–6, ‘Notice 9958 and Notice 9959’, 19 March 2018.
[14]Ibid.
The EPA then issued a clean up notice to Dasma (‘First Clean Up Notice’) on 6 April 2018. The terms of the First Clean Up Notice required Dasma to cease accepting industrial waste at Monash Way and to prepare a Waste Management and Clean Up Plan by 7 May 2018.[15] Dasma submitted their Waste Management and Clean Up Plan on 4 May 2018. The First Clean Up Notice was then revoked by the EPA on 18 May 2018, as the EPA was satisfied on the basis of the Waste Management and Clean Up Plan that Dasma had complied with all notice requirements.[16]
[15]CB75, ‘First Clean Up Notice’, 6 April 2018, [3.1].
[16]CB84, ‘Section 60B Notice of Revocation’, 18 May 2018.
The s 62A Notice
On 24 May 2018, the EPA issued the Notice to Dasma under s 62A of the Act. A draft of the Notice had been provided to Dasma for comment on 18 May 2018. The terms of the Notice directed Dasma as follows:
3.1 You must immediately cease the acceptance of all types of industrial waste at the premises.
3.2 By Monday 03 September 2018, you must remove from the premises, 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 accept waste of that kind .
3.3 By Monday 3 September 2018, you must 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.[17]
[17]CB91, ‘Section 62A Clean Up Notice’, 24 May 2021.
The Notice also specified Ms Cumming’s reasons for issuing the Notice:
EPA has observed approximately 2,900 cubic metres of industrial waste, specifically crushed glass and plastic waste and mixed concrete and brick waste that have been deposited and are being stored at your premises.
Your premises is not licensed by EPA to accept industrial waste. Permitting the depositing of industrial waste at an unlicensed premises is prohibited by section 27A(2)(a) of the EP Act.
Section 45(2)(a)(i) states that pollution of land is deemed to have occurred if a person permits the placement of any prohibited matter on any land.
On this basis, and considering the observations previously stated, I have formed a view and I am satisfied that you are the occupier of the premises upon or from which pollution has occurred or been permitted to occur, as per section 62A(1)(a) of the EP Act.[18]
[18]Ibid CB90.
Proceedings in the Magistrates’ Court
On 23 May 2019, the EPA commenced summary criminal proceedings against Dasma in the Magistrates’ Court (‘Magistrates’ Court Proceedings’), alleging non-compliance with the Notice. On 30 August 2019, there was a Contest Mention in the Magistrates’ Court. One of the issues identified was ‘whether or not the material located on the premises constitutes “Industrial Waste” as per the definition set out in the Environment Protection Act under s.4’.[19]
[19]CB823, ‘Request for Contested Summary Hearing’, 30 August 2019.
On 14 July 2020, Dasma’s solicitors informed the Magistrates’ Court of its position: ‘the prosecution is jurisdictionally flawed. Dasma intends to maintain a collateral challenge to the Notice in defence of the prosecution’.[20] On 22 March 2021, the Magistrates’ Court granted a stay of the proceeding after Dasma informed the Court that it had commenced proceedings in the Supreme Court of Victoria seeking a declaration that the Notice was invalid.
[20]CB834, ‘Letter from Plaintiff’s Solicitors to the Magistrates’ Court’, 14 July 2020, [6].
The proceedings in this Court
In its originating motion filed 25 January 2021, Dasma seeks nine declarations. The Notice invalidity declaration relates to the central issue in the present proceeding. It is therefore appropriate to address this issue before considering the remaining eight declarations sought by Dasma. Before addressing the merits of Dasma’s contention that the Notice was invalid, it is necessary to address the threshold point of whether there are any discretionary considerations which weigh in favour of the Court declining to grant the Notice invalidity declaration.
The Notice invalidity declaration is as follows:
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.
In Ainsworth v Criminal Justice Commission,[21] the majority stated:
Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.[22]
[21](1992) 175 CLR 564.
[22]Ibid 582 (citations omitted).
There is utility in the Court determining whether the Notice was valid. On 23 May 2019, the EPA commenced criminal proceedings against Dasma alleging non-compliance with the Notice. For the purposes of its defence, Dasma wishes to mount a collateral challenge to the validity of the Notice. In Director of Housing v Sudi (‘Sudi’),[23] Weinberg JA described the doctrine of collateral review as ‘highly contentious’.[24] Much of the controversy has centred upon the question of whether collateral challenge may be mounted to the validity of an instrument on grounds challenging the power to issue the instrument, or alternatively, whether collateral challenge is limited to ‘facial’ or patent invalidity. The judgment of Kyrou J (as his Honour then was) in Director of Public Prosecutions v Debono,[25] Maxwell P in Sudi[26] and McClure P and Allanson J in Australian Crime Commission v Marrapodi[27] support the availability of collateral challenge on grounds extending beyond error on the face of an instrument. The judgments of Toohey, Gaudron and Gummow JJ in Ousley v The Queen[28] and Weinberg JA in Sudi[29] support collateral challenge being limited to errors on the face of an instrument.
[23](2011) 33 VR 559 (‘Sudi’).
[24]Ibid 608 [286].
[25][2012] VSC 350, [175]–[178].
[26]Sudi (n 23) 576 [30]–[31].
[27](2012) 42 WAR 351, 363 [45]–[46], 381 [138].
[28](1997) 192 CLR 69, 80, 85, 87.
[29]Sudi (n 23) 608 [286]–[287].
It is not necessary to express a concluded view as to whether the Magistrates’ Court could entertain a collateral challenge to the validity of the Notice based on Dasma’s contention that the power under the Act to issue the Notice was not enlivened. The existence of doubt as to whether the Magistrates’ Court could entertain a collateral challenge is a matter which weighs in favour of the validity of the Notice being determined in the present proceeding.
The issue of the validity of the Notice has been the subject of detailed submissions. The timely, cost-effective resolution of the real issues in dispute weighs in favour of the Court determining the issue of the validity of the Notice.[30] Further, the Magistrates’ Court granted a stay of the criminal proceedings, without any opposition from the EPA, after Dasma informed the Court of the fact that it had commenced the present proceeding. Although the stay was granted without any opposition from the EPA, the presiding Magistrate was plainly satisfied that it was appropriate for the question of the validity of the Notice to be determined in the Supreme Court of Victoria.
[30]See Gray v Woollahra Municipal Council [2004] NSWSC 112, [113] where Whealy J determined the validity of an instrument under challenge despite having determined that collateral challenge could have been pursued in a lower court.
Objections to evidence
The EPA objected to the admissibility of expert evidence tendered by Dasma. Two objections relate to the two expert reports authored by Professor Usha Iyer-Raniga dated 21 May 2021 (‘First Expert Report’) and 27 July 2021 (‘Second Expert Report’). The third objection relates to an expert report of Dr Simon Lockrey, dated 10 May 2021. These objections are dealt with below.
The admissibility of Professor Iyer-Raniga’s evidence
Professor Iyer-Raniga is a Professor at the Royal Melbourne Institute of Technology University, School of Property, Construction and Project Management. She is an academic specialising in sustainable development, with a particular expertise in sustainable building practices and the ‘circular economy’. She holds a Bachelor of Architecture, a Master of Advanced Studies in Architecture, and a PhD in the area of urban environmental improvement.
Pursuant to Keith JR’s order of 5 August 2021, the EPA filed an objection to almost all of Professor Iyer-Raniga’s evidence on 23 August 2021. The EPA objected to the entirety of the Second Expert Report, and to all but pages 25–6 of the First Expert Report.[31]
[31]Defendant, ‘Outline of Objections to Admissibility of Evidence’, 23 August 2021, [3].
The EPA objected to Professor Iyer-Raniga’s reports on two bases, namely that:
(a) the evidence is not relevant and therefore inadmissible under s 56(2) of the Evidence Act 2008 (Vic) (‘Evidence Act’); and
(b) the evidence is inadmissible opinion evidence under s 76 of the Evidence Act, as the opinion is not substantially based on Professor Iyer-Raniga’s training, study or experience.
The First Expert Report
The EPA submits that the entirety of the First Expert Report, save for pages 25–6, is inadmissible on the grounds of relevance. The evidence contained in the First Expert Report concerns the recyclability of concrete and brick materials. Notably, Professor Iyer-Raniga states at outset of her report that her responses are to be read ‘in the context of [a] circular economy’.[32]
[32]CB1370, ‘Expert Report of Professor Usha Iyer-Raniga’, 21 May 2021.
In response to a question regarding whether the concrete and brick material could be considered waste, or whether it is better classified as a resource material, Professor Iyer‐Raniga states that:
from a [circular economy] perspective waste does not exist. ‘Waste’ in essence, refers to resources that can be strategically diverted away from waste to energy options and also diverted from landfill as appropriate.[33]
[33]Ibid CB1377.
The EPA submits that Professor Iyer-Raniga’s evidence concerning the meaning of waste from a circular economy perspective is irrelevant, given the definition of ‘waste’ under the Act. Subparagraph (c) of the definition of ‘waste’ provides that notwithstanding that matter is intended for recycling, reprocessing, recovery or purification, it will be waste if it is discarded, rejected, abandoned, unwanted or surplus. The EPA submits that this definition renders any evidence of theoretical recyclability of no real probative value, because material may still be ‘waste’ regardless of an intention as to future use.[34]
[34]Defendant, ‘Outline of Objections to Admissibility of Evidence’, 23 August 2021, [7].
Section 55 of the Evidence Act provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
To satisfy the requirements of s 55, evidence tendered need only have a minimum logical connection to a fact in issue in the proceedings.[35] Questions of relevance are questions as to the admissibility of evidence. The words ‘if it were accepted’ presuppose that the evidence is otherwise admissible. Questions of admissibility are divorced from considerations of weight. Evidence of so little relevance as to render it practically irrelevant may, nonetheless, be relevant for the purposes of s 55.[36] This position is in notable contrast with that found at common law, where probative weight was germane to the assessment of whether evidence was relevant and admissible.[37]
[35]Papakosmas v The Queen (1999) 196 CLR 297, 322 [81].
[36]Evidence Act 2008 (Vic) s 56(1).
[37]R v Stephenson [1976] VR 376, 380–1.
I do not accept that Professor Iyer-Raniga’s evidence is irrelevant to the assessment of whether the materials stockpiled at Monash Way were ‘waste’. The definition of ‘waste’ first requires an assessment of whether materials are ‘discarded, rejected, unwanted, surplus or abandoned’. This requires some understanding of the potential use of the materials to inform whether the materials would or would not be wanted or surplus. As set out below, the assessment of whether something is ‘waste’ will often require analysis of whether a material is presently useful. Evidence of theoretical future use may be relevant to the assessment of whether the material is presently useful.
Such an assessment requires consideration of the particular circumstances of the owner of the ‘waste’ and whether it was wanted or surplus to those activities. Professor Iyer-Raniga’s evidence does not speak to the particular circumstances of Dasma at the time it was stockpiling material at Monash Way. As such, I consider the evidence, although admissible, to be of limited probative value.
The Second Expert Report
The EPA objects to the entirety of the Second Expert Report on two bases. First, it submits that large parts of the report are irrelevant. Second, it submits that the evidence is inadmissible under s 76 because it does not meet the requirements for admissible expert evidence under s 79.[38]
[38]Defendant, ‘Outline of Objections to Admissibility of Evidence’, 23 August 2021, [10].
The EPA advanced eleven specific objections to the Second Expert Report. The relevant sections objected to are as follows:
(a) Part 2.1(a): Commonwealth Government circular economy policies;
(b) Part 2.1(b): Victorian Government circular economy policies;
(c) Part 2.1(c): Intergovernmental agreements relating to the regulation of waste;
(d) Part 2.1(d): Victorian EPA policy materials that adopt circular economy principles;
(e) Part 2.2–2.3: Opinions on whether certain provisions of the Act constitute a ‘regulatory expression of principles of circular economy’;
(f) Part 2.4: Opinions on whether various pieces of delegated legislation constitute a ‘regulatory expression of principles of circular economy’;
(g) Part 2.5: Opinion on ‘whether principles of circular economy inform the content of any regulatory or statutory duty to administer and manage waste streams so as to give effect to the Principle of the waste hierarchy’;
(h) Part 3(a): Opinions regarding whether Commonwealth or Victorian EPA policies adopt circular economy principles as a regulatory objective;
(i) Part 3(b): Opinions about the relevance of publications issued by the International Standards Organisation to the interpretation of Victorian laws;
(j) Part 3(c): Observations about the need for policy amendments to better achieve ‘circular economy goals’; and
(k) Appendix 1: A table containing opinions about the extent to which certain provisions of the Act ‘reflect the principle of circular economy’.
The EPA submits that all items listed above fail the test for relevance. Further, it submits that items (e), (f), (g), (i) and (k) are inadmissible opinion evidence.[39] It is appropriate to first deal with the EPA’s relevance objection. Items (a)–(d) and (h) are of some relevance, in the sense that they address the statutory context in which the Act operates. In contrast, item (j) is not relevant. Evidence regarding future policy developments are not relevant to an understanding of the statutory context in which the Act operates. Evidence that is not relevant is not admissible.[40] Items (e), (f), (g), (i) and (k) concern the interpretation of the Act and may be relevant. However, the opinions will only be admissible if s 79 of the Evidence Act applies.
[39]Ibid.
[40]Evidence Act 2008 (Vic) s 56(2).
The principles governing the admissibility of expert evidence are well established. The purported expert must have specialised knowledge. That specialised knowledge must be based on the expert’s training, study or experience. The opinion sought to be admitted must be ‘wholly or substantially’ based on that specialised knowledge. This latter requirement will be satisfied where there is a nexus or ‘sufficient connection’ between the opinion proffered and the specialised knowledge held by the expert witness.[41]
[41]Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 605 [42].
The EPA’s objections cite a disconnect between Professor Iyer-Raniga’s qualifications and the evidence given in the report.[42] The EPA submits that as the professor does not hold specialised knowledge of the law, she cannot proffer an expert opinion on a question of law. Such questions are logically anterior to the broader question of the circumstances in which expert evidence may be received to assist in the interpretation of a statute. Questions regarding the application of the ultimate issue rule under the Evidence Act do not arise.[43]
[42]Defendant, ‘Outline of Objections to Admissibility of Evidence’, 23 August 2021, [10].
[43]See, eg, Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79, 83; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57, 86–7 [60].
Professor Iyer-Raniga’s formal qualifications are in the field of architecture, with an academic specialisation in sustainable development. The professor does not profess any specialised knowledge of the specific statutory scheme created by the Act, nor any specialised knowledge of statutory interpretation generally. The EPA submits that because Professor Iyer-Raniga’s evidence concerns the interpretation of a statute, there is no sufficient connection between the evidence given and her qualifications.
I accept this submission. Dasma has not pointed to any particular terms that disclose a customary or trade usage for which expert evidence is necessary to understand. Rather, the evidence given in items (e), (f), (g), (i) and (k) concerns the scope of the rights, powers and liabilities created by the terms of the Act. The meaning of a statute is to be determined in accordance with the principles of statutory interpretation. Professor Iyer-Raniga does not purport to have any specialised knowledge of the principles of statutory interpretation. Therefore, the evidence proffered in items (e), (f), (g), (i) and (k) of the above list is neither wholly or substantially based on her specialised knowledge.
Items (e), (f), (g) and (k) relate to whether Parliament intended to reflect the principles of circular economy within the text of the Act. This is a question that can only be resolved using the principles of statutory interpretation. Similarly, item (i) discloses an opinion as to whether International Standards Organisation technical guidance publications are relevant to the interpretation of legislation. Whether the Act incorporates certain extrinsic materials is a question of statutory construction. Accordingly, items (e), (f), (g), (i) and (k) are rendered inadmissible by s 76.
Dr Simon Lockrey’s Evidence
The EPA objected to aspects of Dr Simon Lockrey’s report. Dr Lockrey is a Senior Lecturer and Fellow at the Royal Melbourne Institute of Technology University School of Design. He holds a Bachelor of Engineering with Honours and a PhD in Management. His research and academic output focusses on sustainability and recycling.
The EPA advanced a number of objections to aspects of Dr Lockrey’s evidence. The objections are summarised below:[44]
[44]Defendant, ‘Outline of Objections to Admissibility of Evidence’, 23 August 2021, [12].
(a) The following extracts from Part 2.1:
(i) ‘[Dr Lockrey’s opinion regarding whether Dasma was] obliged to handle and manage yellow bin kerbside recyclable material they receive pursuant to a contract they have with La Trobe City Council in accordance with the statutory principle of the wastes hierarchy’;[45]
[45]CB1211, ‘Expert Report of Dr Simon Lockrey’, 10 May 2021.
(ii) ‘However crucially, whether Dasma is a producer of such waste, if it is classified as waste, having received, sorted and stored glass cullet deriving predominately from municipal or residential activities, is another issue’;[46]
[46]Ibid CB1212.
(iii) ‘in my opinion if the glass cullet at Dasma is characterised as waste, it is [sic] appears more appropriate to be defined as municipal waste, as per the statutory definition of municipal waste, because of where such material derived, not industrial waste, as per the statutory definition of industrial waste, because of how it was handled thereafter. In this context, in my opinion Dasma does not produce glass (that eventually becomes cullet) at the point it becomes waste, if it is to be characterised as waste, and it appears more appropriate to define such waste as municipal waste’;[47]
[47]Ibid.
(iv) ‘The deposit and storage at Monash Way of glass cullet of the kind described in the Notice and as described in prosecution material did not pollute land at the Monash Way Dasma premise, in some dimensions of the statutory definition of polluted, in so much as the glass cullet material was; not potentially harmful to humans chemically when inert or in the rare case, weathered; being managed on site with OH&S measures in place; and located within a premises seemingly inaccessible to the general public.’[48]
[48]Ibid.
(b) Paragraphs [4.106]–[4.128] in which Dr Lockrey ‘addresses the statutory principle of the wastes hierarchy and related matters’;
(c) Paragraphs [5.69]–[5.81] in which Dr Lockrey provides an opinion on whether Dasma is ‘obliged to handle and manage yellow bin kerbside recyclable material received at its Materials Recycling Facility pursuant to the La Trobe Shire Acceptance and Processing of Recyclables Contract, in accordance with the statutory principle of the wastes hierarchy’ and whether ‘the sorting, segregation, and stockpiling of glass cullet by Dasma [is] consistent with the statutory principle of the wastes hierarchy’;
(d) Paragraph [5.85] in which Dr Lockrey provides an opinion on the contents of Dasma’s contract with the Latrobe City Council;
(e) Paragraphs [5.89]–[5.95] in which Dr Lockrey provides his opinion on best practice in relation to glass cullet recovery systems; and
(f) Paragraphs [5.111]–[5.121] in which Dr Lockrey expresses his opinion about the definition of ‘waste’ in s 4 of the Act.
The EPA objects to (a)–(d) and (f) on the basis that the evidence constitutes inadmissible opinion evidence. The EPA submits that the evidence is evidence of a legal opinion and is not substantially based on Dr Lockrey’s training, study or experience. Counsel for Dasma conceded that the evidence is not admissible.[49]
[49]Transcript of Proceedings, T 248 L 13–16 (30 August 2021).
The EPA submits that (e) is not relevant to a fact in issue in the proceedings and is inadmissible pursuant to s 56(2) of the Evidence Act. Dasma did not concede this point.[50] Dr Lockrey’s evidence of domestic and international best practice in glass cullet recovery has some logical relevance to the facts in issue. The evidence objected to includes evidence of projects in Victoria relating to the recycling of glass cullet and evidence of developments in the glass cullet recycling industry, including evidence of anticipated future demand. This evidence is relevant to the availability of a market for glass cullet and the lack of capacity for organisations such as Dasma to process those materials. While the evidence is of limited probative value, it does bear on the assessment of the usefulness of the glass cullet stockpiled at Monash Way and whether it is ‘waste’.
[50]Ibid.
Statutory Framework
Before addressing Dasma’s submissions it is necessary to address the relevant provisions of the Act. The Act provided the statutory framework for the creation of the EPA, the scope of its powers and duties, and made provision for the protection of the environment. 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 been permitted to occur’ directing them to take clean up and ongoing management measures as specified in the Notice.
The exercise of the power to issue a notice was contingent upon pollution having occurred on the premises. While ‘pollution’ was not defined, s 4(1) defined ‘polluted’ to mean ‘the condition of the environment described to and referred to in section… 45(1) [concerning pollution of land]’.
Section 45 of the Act created the offence of ‘Pollution of Land’. Subsection (1) stated that:
(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.
However, even if none of the conditions listed in subsections 45(1)(a)–(f) were satisfied, subsection 45(2) deemed pollution to have occurred in certain circumstances:
(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 …
In the reasons provided in the Notice, Ms Cumming relied on s 45(2)(a)(i) as supporting a finding of pollution. The reasons identified Dasma’s contravention of s 27A(2)(a) of the Act as the relevant basis for deeming pollution under s 45(2)(a)(i).
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
Under s 4(1) of the Act, ‘industrial waste’ was defined as:
(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;
‘Waste’ was defined in s 4(1) to include:
(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.
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).
The stockpiles of glass cullet and concrete and brick rubble were waste
Dasma submits that neither the glass cullet nor the concrete and brick rubble were waste. Different considerations apply with respect to the glass cullet, on the one hand, and the concrete and brick rubble on the other. I shall address them separately.
The glass cullet
Dasma submits that the Court should look to the manner in which the glass cullet was acquired to ascertain whether the material was ‘waste’. Dasma submits that the fact that the material was acquired in the course of undertaking its contractual obligations under Contract 12979 is relevant to whether the material was ‘waste’. Dasma submits that as it was required to effect maximum resource recovery of the materials per cl A3.1 of Contract 12979, it could not treat the product as ‘waste’ and therefore, the glass cullet does not fall within the scope of the Act.[51]
[51]Plaintiff, ‘Closing Submissions (Corrected)’, 14 September 2021, [1.4]–[1.7].
Dasma’s submission raises the issue of the extent to which Dasma’s subjective perception of the glass cullet informs the determination of whether the material was waste as defined under the Act. Dasma submits that because, at all times and in accordance with their contractual obligations, it treated the glass cullet as a resource material for glass beneficiation and sale, it was not ‘waste’. I reject this submission. The definition of ‘waste’ does not focus on the owner’s subjective view of the material. Rather, the definition of ‘waste’ under the Act requires objective consideration of the material’s character from the perspective of the owner.
It is common ground that the definition of ‘waste’ under the Act has not been considered by a Victorian court.[52] Dasma submits that Carter Holt Harvey Ltd v North Shore City Council (‘Carter Holt’),[53] a decision of the Court of Appeal of New Zealand, supports the contention that it is relevant to consider how the owner has acquired the material to discern whether material is ‘waste’. In Carter Holt, a paper manufacturer entered into a number of agreements to collect used paper from a local council. The Council created a by-law requiring any person who collected and transported waste to be licensed. Carter Holt contended that the used paper it collected was not waste and therefore the by-law was ultra vires.
[52]In Yarra City Council v Metropolitan Fire and Emergency Services Board (2017) 223 LGERA 135, the Court of Appeal gave consideration to the meaning of ‘appears to have abandoned … waste’ in s 62A(1)(c) of the Act, but did not have to consider whether the material was waste.
[53] Carter Holt Harvey Ltd v North Shore City Council [2008] 1 NZLR 744 (‘Carter Holt’).
The Court of Appeal of New Zealand concluded that the used paper collected and held by Carter Holt was not ‘waste’:
In the case of used and unwanted paper, paper which is left at the kerb for collection or delivered to a recycling centre has obviously been abandoned by its former owner and is therefore waste. The paper which Carter Holt acquires by contract has, equally clearly, not been abandoned and is therefore not waste. In essence, Carter Holt acquires a second hand good for consideration rather than collecting waste.[54]
[54]Ibid [36]. See also Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397, 419 [84].
Dasma submits that this same reasoning should inform the meaning of waste under the Act. It submits that because it acquired the glass cullet in the course of its commercial operations governed by Contract 12979, the material was not waste.[55]
[55]Plaintiff, ‘Closing Submissions (Corrected’), 14 September 2021, [51]–[56], [1.9].
Dasma’s reliance on Carter Holt is misguided. The Court of Appeal adopted the test of ‘whether a former owner has abandoned material’ as being determinative of whether material was ’waste’.[56] The fact that the paper waste had ‘not been abandoned’ was the decisive factor in the Court of Appeal’s decision. The Act prescribes a broader definition of waste than under the by-law considered in Carter Holt. Under the definition in s 4(1) of the Act, an item may be ‘waste’ despite the fact that it was not abandoned. Any ‘discarded, rejected, abandoned, unwanted or surplus’ material can fall within its scope. Abandonment is but one of several criteria sufficient to bring material within the definition of waste. The fact that material has not been abandoned does not preclude the material being waste.
[56]Carter Holt (n 53) [35].
The definition of ‘waste’ within the Protection of the Environment Operations Act 1997 (NSW) (‘PEO Act’) was considered by the New South Wales Court of Criminal Appeal in two cases which were heard together: Shannongrove Pty Ltd v Environment Protection Authority (‘Shannongrove’)[57] and Environment Protection Authority v Terrace Earthmoving Pty Ltd (‘Terrace Earthmoving’).[58] Both cases concerned an alleged contravention of s 143(1) of the PEO Act, which prohibited the unlawful transportation of waste:
[57](2013) 84 NSWLR 668 (‘Shannongrove’).
[58](2013) 84 NSWLR 679 (‘Terrace Earthmoving’).
Offence
If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste:
(a) the person, and
(b) if the person is not the owner of the waste, the owner,
are each guilty of an offence.
In Shannongrove, the defendant, Shannongrove Pty Ltd (‘Shannongrove’), had been contracted to transport a ‘form of sludge’ that was the by-product of an organic waste treatment facility. Under the contract, Shannongrove was required to transport the by-product to a farm, where it would be injected into the soil for use as fertiliser. The farm was not licensed to receive ‘waste’. It was alleged that, by transporting the by-product, Shannongrove had contravened s 143(1). At first instance it was determined that Shannongrove had transported waste in violation of s 143(1).
In Terrace Earthmoving the defendants, Terrace Earthmoving Pty Ltd (‘Terrace Earthmoving’) and one of its directors, had been charged under s 143(1). Terrace Earthmoving conducted a demolition and excavation business, while also carrying out road-building works. As part of its business model, Terrace Earthmoving would remove unwanted by-products from their demolition and excavation operations and use the material in their road-building operations. It was alleged that the transport of the by-product was in breach of s 143(1). The trial judge was not satisfied that the by-product constituted ‘waste’ and found in favour of the defendant.
Both matters were appealed on questions of law to the Court of Criminal Appeal. The issue in each appeal was whether the material in question was ‘waste’ as defined in s 143(4) of the PEO Act, which read:
waste includes any unwanted or surplus substance (whether solid, liquid or gaseous). A substance is not precluded from being waste merely because it may be reprocessed, re-used or recycled.
The Court in Terrace Earthmoving observed that:
The words ‘unwanted’ and ‘surplus’ require reference to the state of mind of some person. The concepts do not turn on any objective characteristic of the substance, although, as a matter of evidence, it may more readily be inferred that some substances are wanted than others.[59]
[59]Ibid [27].
The first part of this passage supports the proposition that Dasma’s state of mind is relevant to whether the glass cullet was waste. However, the second half of the passage makes clear that objective evidence is relevant to whether material is unwanted or surplus. Further, the focus is on whether the owner had a continuing use for the material:
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.[60]
[60]Ibid [25].
This reasoning underpinned the Court’s conclusion that despite Terrace Earthmoving’s intention to use the materials at a later date, the material was ‘waste’ when it was transported, and continued to be so until it was put to that use.[61] Terrace Earthmoving supports the proposition that the relevant inquiry for the purpose of determining whether material is unwanted or surplus is whether the owner had an immediate use for the material.
[61]Ibid [34].
In Wood v Adelaide Resource Recovery Pty Ltd (‘Wood’)[62] the Full Court of the South Australian Supreme Court considered a complaint from the appellant, an officer of the Environment Protection Authority (‘Authority’) against the respondent, Adelaide Resource Recovery Pty Ltd (‘ARR’). The complaint alleged that ARR had breached a condition of their licence to conduct a waste or recycling depot on their premises. Under condition 9 of the licence, ARR was only authorised to store certain types of waste within either the enclosed undercover picking station or the storage shed located on the premises. As the licence was granted by the Authority under the Environment Protection Act 1993 (SA), it incorporated the definition of ‘waste’ in s 3(1) of the Act:
[62](2017) 127 SASR 296 (‘Wood’).
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.
Between 13 September and 9 October 2013, the Authority conducted inspections of the premises and discovered a number of stockpiles. The materials contained in the stockpiles comprised a mix of plastic, timber, paper, cardboard, masonry and metals. These materials had been sorted from the general waste material during the picking process before being deposited in the stockpile. In December 2013, ARR commenced shredding the materials in the stockpile. Samples of the shredded material were submitted for testing to ascertain whether the material was suitable to be used as refuse derived fuel. The shredded material was found to be suitable for such use.
On 26 March 2015, the Authority filed a complaint against the ARR in the Environment Court, alleging that the stockpiling of the materials between 13 September and 9 October 2013 contravened condition 9 of the Licence.
The issue at trial was whether the material, which the parties agreed had entered the premises as waste had, by virtue of being sorted from the other materials, lost its character as waste. The trial judge determined that once the material entered into ARR’s possession, it ceased to be ‘waste’ and had assumed the character of a product, even before it had been shredded into refuse derived fuel in December 2013. Accordingly, the trial judge found that the Authority’s claim that the stockpiling constituted a breach of condition 9 of the licence was without basis.
On appeal, Blue J (with whom Lovell and Hinton JJ agreed) disagreed with the trial judge:
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.[63]
[63]Ibid [44]–[46] (emphasis added).
Blue J concluded that the trial judge erred in finding that the un-shredded stockpiled material did not constitute waste. His Honour noted that once the stockpiled materials were processed and shredded into refuse derived fuel they would likely constitute a product, and thus fall outside the definition of ‘waste’ under the Act. This was subject to the caveat that in order to comprise a product, there would need to be an available market for the material: ‘it could not be characterised as anything but waste which might in future become a product if a demand arose for it’.[64]
[64]Ibid [47].
The test in Wood for determining whether material is ‘waste’ can be summarised 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.
The definition of waste considered in Wood is similar to the definition in s 4(1) of the Act. In particular, both definitions acknowledge that material may be waste notwithstanding an intention to sell, recycle or reprocess the material.
I consider the test applied in Wood, requiring an inquiry into the objective fact of whether material is waste, applies equally to the definition of waste under the Act. Dasma seeks to distinguish Wood on the basis that the definition of waste considered in Wood is preceded by the exhaustive term ‘means’, as opposed to ‘includes’ in s 4(1).[65] This is a distinction without a difference. The word ‘includes’ in s 4(1) merely signals that the legislature has sought to include, in addition to the word’s natural meaning, a specific additional meaning that may not be apparent on the face of the word ‘waste’. 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.
[65]Plaintiff, ‘Closing Submissions (Corrected)’, 14 September 2021, 32.
The glass cullet was waste
Dasma received the material which became glass cullet as part of its collection of comingled waste. The comingled waste was then subject to processing at Tramway Road. The glass component of the comingled waste was sorted into glass cullet. This product was then transported from Tramway Road to Monash Way. Two questions arise. First, did the processing render the glass cullet something other than ‘waste’? Second, if the glass cullet was sufficiently processed, did any market exist for it?
The glass cullet had not undergone processes sufficient to render it a useful product. Ms Cumming deposed that during her 14 March 2018 inspection of Monash Way, she noted that the stockpiles of glass cullet contained ‘obvious items and pieces of plastic and the odd e-waste item mixed throughout the crushed glass’. This rendered the glass cullet incapable of being recycled without further processing.[66]
[66]CB837, ‘Affidavit of Sarah Anne Cumming’, 4 June 2021, [8].
Ms Cumming’s opinion is consistent with expert evidence led by the plaintiff. Dr Lockrey gave evidence concerning the recyclability of glass cullet. The role of a materials recycling facility, such as Dasma, is to undertake mechanical sorting of materials. Sorting does not, however, completely remove contaminants from the glass cullet. Dr Lockrey noted in this regard the ‘very sensitive’ process of glass recycling, explaining that the presence of contaminants such as ceramics or metals can lead to deformities in the final glass product.[67]
[67]CB1223, ‘Expert Report of Dr Simon Lockrey’, 10 May 2021.
Regarding the glass cullet stockpiled at Monash Way, Dr Lockrey considered it fair to conclude that, on examination of Dasma’s practices and after inspection of stockpiles at Monash Way, the material was likely contaminated.[68] Dr Lockrey posited that the material likely contained ‘small pieces of metal, plastic, [ceramic, stones, porcelain], non-packaging glass, and organic material’.[69]
[68]Ibid CB1236, CB1237.
[69]Ibid.
Dr Lockrey considered the glass cullet to be theoretically ‘100% recyclable’.[70] However, he noted that ‘the glass cullet material at Dasma would require further sorting into individual glass grades ready to be ‘furnace-ready’ for sale’.[71] He opined that such processes would be undertaken at glass beneficiation facilities that possess the appropriate mechanical and optical technology.[72]
[70]Ibid CB1239.
[71]Ibid CB1240.
[72]Ibid.
In light of the likelihood that the glass cullet is contaminated, Dr Lockrey’s opinion is that the glass cullet would need to undergo further processing. This was necessary to eliminate the risk of damage to equipment such as furnaces and other glass producing machines, as well as to ensure the quality of any final products that utilise the glass cullet.[73]
[73]Ibid.
Ascertaining whether a product has been sufficiently transformed from waste into a product is a matter of fact and degree.[74] Dr Lockrey’s evidence supports the conclusion that the glass cullet, as at 24 May 2018, had not undergone a sufficient degree of processing to be rendered other than waste. The sorting processes undertaken by Dasma at Tramway Road were not sufficient to create a useful product. The glass cullet required further processing by the likes of Visy or SKM before it could be considered useful for glass recycling purposes. It was therefore ‘waste’.
[74]Wood (n 62) [46].
If material has not been sufficiently processed to transform it into a product, there is no need to examine whether there is a market for that material.[75] However, even if the sorting of the glass cullet from the comingled materials transformed the glass cullet into a useful material, it would still need to be established that there was demand for the material in an immediately available market. If not, the glass cullet ‘could not be characterised as anything but waste which might in future become a product if a demand arose for it’.[76]
[75]Ibid [47].
[76]Ibid.
When the notice was issued on 24 May 2018, there was no demand for the glass cullet in an immediately available market. Prior to 24 May 2018, Dasma consistently sold the glass cullet at a loss. From 2011 to 2018 Dasma transported glass cullet from Tramway Road to third parties such as Visy and SKM. Transporting the cullet cost Dasma approximately $30 per tonne.[77]
[77]CB19, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [44]; Transcript of Proceedings, T 274 L 5–9 (31 August 2021).
Under the terms of a rebate agreement signed in April 2012, Visy paid Dasma $12.50 per tonne of glass cullet. By March the following year, Visy gave notice that they would amend the price per tonne rate to ‘nil’, to take effect in April 2013. Shortly after receiving this notice, Dasma entered into an agreement with SKM under which SKM would pay Dasma $10 per tonne for high quality glass cullet.
From 2011 to 2015, the cost of transporting the cullet was at least double the price paid by Visy and SKM for the glass cullet. The only income Dasma received from the glass cullet was what they were paid by both the Latrobe City Council and Polytrade to receive and store it. These characteristics are inconsistent with Dasma wanting the glass cullet. Nevertheless, although not being profitable for Dasma, it could still be said that there was a market for the glass cullet. In July 2016, SKM emailed Dasma to inform them that they would no longer pay to receive the glass cullet. Instead, from August 2016, Dasma would be subject to a gate fee of $40 for each tonne of glass cullet deposited at SKM’s facility.[78]
[78]CB21, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [50]; CB433, ‘Email from Jeff Bunting to Neville Bond’, 5 July 2016.
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.[79] Instead, as Mr Di Sipio admitted, from August 2016, Dasma faced costs of approximately $70 per tonne to dispose of the glass cullet with SKM.[80]
[79]CB26, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [77].
[80]Transcript of Proceedings, T 278 L 1–3 (31 August 2021).
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.[81] 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.[82]
[81]CB24, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [67].
[82]Ibid CB23 [63].
In the Waste Management and Clean Up Plan submitted to the EPA on 4 May 2018, Dasma made representations to the EPA that any measures taken were temporary in nature:
Recently stockpiles of crushed glass have been stored at the [Monash Way] premises due to a lack of a market to sell to. Particularly the Chinese market is not accepting recyclables from Australia. This initiative is meant to be temporary until a market or means of disposal can be achieved.[83]
[83]CB78, ‘Waste Management and Clean Up Plan’, 3 May 2018.
Notwithstanding these stated intentions, counsel for Dasma conceded that in May 2018, Dasma did not know whether market conditions were likely to improve.[84] In May 2018, there was no market for the stockpiled glass cullet at Monash Way. The glass cullet was waste. As in Wood and Terrace Earthmoving, the glass cullet had not undergone processes sufficient to transform it into something other than waste, nor had it actually been applied for any intended purpose. Dasma did not have the capacity to undertake such processes. Those who did have such capacity, such as Visy and SKM, did not wish to purchase the glass cullet. There was, accordingly, no market for the glass cullet. From August 2016, the glass cullet, when stockpiled, was ‘discarded, rejected, unwanted, surplus or abandoned’.
[84]Transcript of Proceedings, T 409 L 26 (20 September 2021).
The concrete and brick rubble
Prior to May 2018, Dasma occasionally operated a concrete crushing machine at Monash Way. Materials were deposited by the public at Tramway Road before being transported to Monash Way. Dasma did not hold a permit to conduct these operations until 15 August 2019.
Mr Di Sipio gave evidence that once the concrete and brick rubble was crushed, it was suitable for use as a road base material. Mr Di Sipio said that the road base material was used by Dasma and was occasionally sold to local customers. However, there was no evidence providing details of any such sales.
Dasma’s submissions distinguish the crushed and uncrushed material. Dasma submits that the crushed material did not constitute ‘waste’ as it ‘had utility to Dasma in its family business operations and was otherwise a product available for sale to consumers’.[85]
[85]Plaintiff, ‘Closing Submissions (Corrected)’, 14 September 2021, [2.2].
Dasma submits that any stockpiling of uncrushed concrete and brick rubble at Monash Way was a precursor to the creation of road base material. The uncrushed material was a ‘direct input’ for the crushing process and so should not be characterised as waste.[86] Dasma submits that, holistically, the operation at Monash Way was a genuine recycling operation wherein both the crushed and uncrushed concrete and brick are a necessary part of the operation and, in that sense, the materials were wanted in May 2018.[87]
[86]Ibid [2.1(e)].
[87]Ibid [2.2].
The uncrushed material cannot be characterised as anything but ‘waste’. As with the glass cullet, it had not been processed to the point where it had become in any way useful. It was wanted only for its future processing.
On the other hand, the crushed concrete and brick material has been subject to a degree of processing and was utilised by Dasma and sold to local customers. However, there was no lawful processing of the crushed rock prior to May 2018 because Dasma did not have a permit to operate its crushing machine. A product will not be surplus, discarded or unwanted if there is a market for the product. However, the market must be a legitimate market. In May 2018, there was no legitimate market for Dasma’s crushed rock because Dasma did not have a permit to crush rock at Monash Way. As the crushed rock was a by-product of an unlawful crushing process for which there was no legitimate market, it was surplus material.
Further, in May 2018, Dasma had no use for the material. The stockpiling is itself relevant to the characterisation of the materials as waste. Despite claiming to have a genuine use for the crushed rock as road base material, Dasma kept large stockpiles of it at Monash Way. Some of these stockpiles had become overgrown with grass. Under cross-examination, Mr Di Sipio accepted that if Dasma had sought to use the material for its own operations, it could have utilised the material it already possessed, rather than creating new mounds of the road base material.[88]
[88]Transcript of Proceedings, T 307 L 22–7 (31 August 2021).
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’.[89] However, whilst it was stockpiled, the road base material was ‘surplus’, ‘discarded’ and ‘unwanted’ material.
[89]Terrace Earthmoving (n 58) 689 [34].
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.
Industrial waste
Dasma advanced two further submissions challenging the EPA’s power to issue the Notice. First, that even if the materials were ‘waste’, they were not ‘industrial waste’. Second, if the materials were ‘industrial waste’, the ‘industrial waste’ was not a ‘particular kind of industrial waste’ nor was it ‘industrial waste of that kind’, within the meaning of s 27A(2)(a). Before addressing these submissions, it is necessary to address the provenance of the glass cullet and the concrete and brick rubble, as this is relevant to the characterisation of the waste as ‘industrial waste’.
The glass cullet at Tramway Road comprised cullet received from both the Latrobe City Council and Polytrade. The parties disagree as to whether the glass cullet stockpiled at Monash Way contained any of the cullet deposited at Tramway Road by Polytrade, pursuant to the 10 February 2015 agreement. The EPA submits that the relevance of the provenance of the glass lies in the characterisation of the glass cullet as ‘industrial waste’.[90] The provenance of Polytrade’s glass cullet is unknown. If the glass cullet stockpiled at Monash Way contains glass cullet from Polytrade, Dasma’s capacity to characterise the waste as something other than ‘industrial waste’ (for example, ‘municipal waste’) is lessened.
[90]Defendant, ‘Outline of Submissions’, 16 August 2021, [83].
The evidence supports a finding that the glass cullet deposited at Monash Way included Polytrade’s glass cullet. Mr Di Sipio acknowledged that the Polytrade cullet was indistinguishable from the cullet Dasma received under Contract 12979.[91] He also noted that there was no requirement for Dasma to store Polytrade’s glass cullet in separate stockpiles, as ‘Polytrade would eventually re-collect an equivalent amount of glass cullet regardless of whether it was originally sourced in recycling activities of Polytrade or Dasma’.[92]
[91]CB22, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [54].
[92]Ibid [57].
On 1 April 2021, Dasma’s solicitors sent a letter of instruction to Dr Lockrey. At paragraph S, the letter stated:
By agreement, the Dasma material and the Polytrade cullet material were combined in storage at Tramways [sic] Road before Dasma commenced to transport some of the mixed glass/plastic materials at its own cost, on its own transport vehicles to Monash Way …[93]
Mr Di Sipio acknowledged that he provided information to his lawyers for the purpose of preparing a letter of instruction to Dr Lockrey.[94] However, when questioned about whether he provided the information that formed the basis of paragraph S, Mr Di Sipio could not recall what he told his lawyers.[95] The position taken in Mr Di Sipio’s supplementary affidavit, affirmed on 23 August 2021, was markedly different. There, Mr Di Sipio stated that the Polytrade cullet was kept in separate stockpiles, and that ‘[a]t no stage was Polytrade’s glass cullet taken from the Tramway Road premises to the Monash Way premises’.[96]
[93]CB1271, ‘Expert Report of Dr Simon Lockrey’, 10 May 2021.
[94]Transcript of Proceedings, T 291 L 3–4, L 15–16, T 292 L 19–20, T 293 L 18–20 (31 August 2021).
[95]Transcript of Proceedings, T 294 L 4–5 (31 August 2021).
[96]CB1194, ‘Supplementary Affidavit of Mr Eden Alfio Di Sipio’, 23 August 2021, [5].
The EPA contends that the change of position evidenced in the supplementary affidavit may be explained by the filing of the EPA’s submissions the week prior on 16 August 2016. There, the EPA first made clear their intention to rely on the provenance of the glass cullet material as supporting the finding that the glass cullet was ‘industrial waste’.[97] When this explanation was put to Mr Di Sipio at trial, he denied that his position changed in light of what was disclosed in the EPA’s submissions, noting that he did not understand the significance of the glass cullet’s provenance.[98]
[97]Defendant, ‘Outline of Submissions’, 16 August 2021, [83].
[98]Transcript of Proceedings, T 295 L 27–31, T 296 L 1–7 (31 August 2021).
Beyond restating Mr Di Sipio’s claim that the Polytrade material was separately stockpiled, Dasma did not advance any explanation for the inconsistencies in Mr Di Sipio’s evidence.[99] I am satisfied that the glass cullet at Monash Way contained a mix of both Polytrade and Dasma materials.
[99]Plaintiff, ‘Closing Submissions (Corrected)’, 14 September 2021, [64]–[66].
Provenance of the concrete and brick rubble
The provenance of the concrete and brick rubble is unclear. The concrete and brick rubble was collected from the public at Tramway Road, before being transported to Monash Way. The EPA submits that at least some of the concrete and brick rubble came from commercial sources, rather than from purely domestic sources.
Dasma disputes this, pointing to the gate fee of $43 per tonne for concrete materials. It submits that this price was not competitive and commercial entities would be unwilling to deposit their industrial waste at Tramway Road.[100] Further, the machinery needed to process concrete from commercial sources, such as a pulveriser, loader, hammer and excavator had not been available for use for a number of years.[101]
[100]Transcript of Proceedings, T 241 L 17–22 (30 August 2021); CB729, ‘Dasma Group Concrete Disposal Price List’, February 2019.
[101]Transcript of Proceedings, T 241 L 6–16 (30 August 2021).
Mr Di Sipio’s evidence was equivocal. He stated that he cannot recall accepting ‘commercially sourced concrete’, but says otherwise that ‘[i]f the source of the materials was from a builder/commercial source, Dasma may still have accepted the materials at the Tramway Road premises’.[102]
[102]CB29, ‘Affidavit of Eden Alfio Di Sipio’, 22 January 2021, [90].
The EPA’s position is supported by photographs taken by Ms Cumming during her inspection of Monash Way. The images depict a stockpile of large reinforced concrete slabs.[103] The substantial size of the concrete, some of which had reinforced steel, supports a finding that the concrete was not from domestic sources. When cross-examined, Mr Di Sipio agreed that the size of the concrete was inconsistent with the materials being deposited by a standard trailer.[104] I accept Ms Cumming’s evidence that the size was:
consistent with having been transported and deposited there by large trucks. Some of the concrete consisted of large slabs that I considered would have required machinery to move and handle.[105]
[103]CB888–9, ‘Exhibit SAC-2 to the Affidavit of Sarah Anne Cumming’, 4 June 2021.
[104]Transcript of Proceedings, T 237 L 20–3 (30 August 2021).
[105]CB837, ‘Affidavit of Sarah Anne Cumming’, 4 June 2021, [6].
The concrete and brick rubble stockpiles at Monash Way comprised at least some material from commercial sources.
Whether the materials were ‘industrial waste’
‘Industrial waste’ is defined in s 4(1) of the Act. Under subparagraph (a) of the definition, ‘industrial waste’ is defined as meaning ‘waste arising from commercial, industrial or trade activities’.
Based on the provenance of the glass cullet and concrete and brick rubble, at least some of the waste in the stockpiles the subject of the Notice was ‘industrial waste’. Some of the materials arose from commercial, industrial or trade activities — whether of Polytrade, commercial venues in the Latrobe City Council, or construction businesses.
The relevant inquiry is not whether mixing industrial waste with waste from domestic sources into a comingled stockpile means that the entirety of the stockpile was ‘industrial waste’. Rather, it is necessary to inquire as to whether, for the purposes of ascertaining whether a contravention of s 27A(2) has occurred, at least some ‘industrial waste’ was deposited at Monash Way.
If I am incorrect about the provenance of the waste, the waste was ‘industrial waste’ because it arose from Dasma’s own commercial activities. In this regard, Dasma submits that the materials at Monash Way were not waste ‘arising from’ any commercial, industrial or trade activities.[106] Dasma submits that the origin of the waste is primarily domestic, meaning it is better characterised as ‘municipal waste’ as defined in s 4(1) of the Act.
[106]Plaintiff, ‘Submissions in Reply’, 23 August 2021, [21].
Dasma’s submission relies on the proposition that the municipal waste it collects does not become waste arising from Dasma’s commercial, industrial or trade activities. I reject this submission. Waste can be ‘industrial waste’, regardless of its origins. Relevantly, the definition of ‘municipal waste’ read:
any waste arising from municipal or residential activities, and includes waste collected by, or on behalf of, a municipal council, but does not include any industrial waste.[107]
[107]Environment Protection Act 1970 (Vic) s 4(1) (definition of ‘municipal waste’).
The qualifying phrase ‘but does not include any industrial waste’ is significant. Even if waste arises from municipal or residential activities, if it otherwise holds the characteristics of industrial waste, that characterisation will take precedence. Accordingly, actions subsequent to its initial disposal and collection may convert waste which was once ‘municipal’ into waste of an ‘industrial’ character.
The glass cullet and the concrete and brick rubble arose from Dasma’s commercial activities at Tramway Road where Dasma conducted an industrial material recycling facility. The waste the subject of the Notice was waste arising from and surplus to Dasma’s commercial activities at Tramway Road.
Whether the industrial waste was ‘a particular kind of industrial waste’
In order for a contravention of s 27A(2)(a) to occur, a person must have, inter alia, deposited ‘a particular kind of industrial waste … at a place not being a site licensed to accept industrial waste of that kind under this Act’. The EPA contends that Monash Way was such a place and that, absent a licence, Dasma was in breach of s 27A(2)(a).
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).[108] 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’.[109] 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’.[110] Dasma submits that because ‘scheduled premises’ are required to be licensed to hold ‘prescribed industrial waste’,[111] 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’.
[108]Plaintiff, ‘Outline of Submissions’, 9 July 2021, [65].
[109]Ibid [98]–[101].
[110]Ibid; Transcript of Proceedings, T 123 L 30–1, T 124 L 1–2 (27 August 2021).
[111]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.
Dasma submits that, because the glass cullet and concrete and brick rubble were not ‘prescribed industrial waste’, Monash Way was not a ‘scheduled premises’.[112] 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.
[112]Plaintiff, ‘Outline of Submissions’, 9 July 2021, [99]–[100].
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.[113] Where Parliament could have used the same word, but elects to use a different one, an intention to change the meaning is evident.[114] 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.
[113]See, eg, Environment Protection Act 1970 (Vic) ss 19A(5)(a), 19C(2), 20(9)(a)(iii), 21(1)(e), 22(1)(b).
[114]Bayley v R (2013) 43 VR 335, 345–6 [47].
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.
Dasma’s additional claims for declaratory relief
Declarations [1]–[3] are as follows:
1. A declaration that:
On the proper construction of the definition of ‘waste’ in s 4(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. 12878 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 Road, Morwell by the ‘Recyclables Collection Service Contract’, 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 plaintiff’s 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 s 4(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) 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 plaintiff’s Sorting Facility, was not and is not ‘industrial waste’ as defined in s 4(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.
The Court’s jurisdiction to make a binding declaration of right without granting consequential relief arises pursuant to s 85 of the Constitution Act 1975 read in conjunction with s 36 of the Supreme Court Act 1986. A declaration is not an equitable remedy. It is a statutory remedy that is conferred in terms emphasising that its grant or refusal is within the discretion of the Court.[115] Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. There is a legal controversy as to whether the Notice was valid. Consequently, it is appropriate for the Court to have heard and determined the application for the Notice invalidity declaration. In contrast, declaration [1] is not directed to the determination of any extant legal controversy.
[115]Ambridge Investments Pty Ltd v Baker [2010] VSC 59, [61]–[73].
On 1 July 2021, the Act was repealed by s 63 of the Environment Protection Amendment Act 2018. Whether recyclable materials accepted and sorted by Dasma at Tramway Road under Contract 12979 ceased to be waste as defined in s 4(1) of the Act when title to the recyclables passed to Dasma is an abstract and hypothetical question. The resolution of the question would not resolve any extant controversy. The Act has been repealed. As such, the resolution of the question is not relevant to the legality of Dasma’s future operations. The proposed declaration as formulated is, in any event, too uncertain to found declaratory relief. For instance, the nature of the recyclable materials accepted and sorted at Tramway Road may bear upon the question of whether the material ceased to be waste when title to the recyclables passed to Dasma. The application for a declaration in the terms of declaration [1] is refused.
The grounds for refusing declaration [1] apply equally to declarations [2] and [3]. Each of those declarations relate to Dasma’s current and future operations which are no longer subject to the provisions of the Act.
Declaration [4] is as follows:
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 plaintiff’s 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 s 45(2)(a)(i) of the Environment Protection Act 1970.
This declaration is not directed to the determination of an extant legal controversy. The question is abstract and hypothetical. It is of no utility as the Act has been repealed. The terms of the declaration are not appropriate for the grant of relief. The phrase ‘the plaintiff was permitted’ begs the questions: permitted by whom, and under what regulatory regime?
Declarations [6] and [7] are as follows:
6. A declaration that:
Upon the proper construction of the definition of ‘waste’ and of ‘industrial waste’ in s 4(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.
7. A declaration that:
Upon the proper construction of the Act, the brick and concrete material deposited by the plaintiff for storage at the plaintiffs Monash Way pending crushing as a beneficial reuse resource material is not prohibited matter for the purposes of s 45(2)(a)(i) of the Environment Protection Act 1970.
There is no basis for granting a declaration in the terms of declarations [6] and [7]. I have concluded that the concrete and brick rubble at Monash Way was industrial waste. My reasons for reaching this conclusion have the result that there is no basis for, or utility in, granting a declaration in the terms of declarations [6] and [7]. Further, the terms in which the declarations are sought extend well beyond the concrete and brick rubble which is the subject of the Notice issued on 24 May 2018. To the extent that the terms of the declaration extend beyond the material which was the subject of the Notice, there is no utility in granting the declarations. Save for the concrete and brick rubble the subject of the Notice, there is no extant legal controversy regarding concrete and brick rubble deposited at Monash Way. The question of whether the concrete and brick rubble is prohibited matter under s 45(2)(a)(i) of the Act is of no ongoing utility because the Act has been repealed.
Declaration [8] is as follows:
A declaration that:
Upon the proper construction of s 62A(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.
I have concluded that Dasma was the occupier of the premises upon which pollution occurred within the meaning of s 62A(1)(a) of the Act. Pollution occurred as a result of Dasma stockpiling industrial waste at Monash Way without being licensed to do so. There is no utility in addressing the question of whether, for the purposes of s 62A(1)(a) the power to issue the Notice was engaged by Ms Cumming having formed the view and being satisfied that pollution occurred.
Declaration [9] is as follows:
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.
In light of my conclusion that the Notice is valid, there is no basis for granting declaration [9].
Conclusion
I shall provide the parties with an opportunity to make submissions as to the appropriate form of orders to give effect to the reasons set out above. The Court could simply dismiss Dasma’s application for the Notice invalidity declaration. Alternatively, the Court could make a declaration that the Notice is valid. The parties will also be provided with an opportunity to make submissions as to the costs of the proceeding.
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