Dasma Environmental Pty Ltd v Environment Protection Authority - [2021] VSC 798

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 798
Decision Date: 3 December 2021

CaseChat Overview and Summary

Dasma Environmental Pty Ltd sought judicial review of a clean up notice issued by the Environment Protection Authority. The notice required the company to clean up stockpiles of glass cullet and concrete and brick rubble on its property. The Environmental Protection Authority considered the materials to be industrial waste under the Environment Protection Act 1970. Dasma Environmental contested this, claiming the clean up notice was invalid. The company sought a declaration that the notice was invalid, as well as other declaratory reliefs.

The central legal issues before the court were whether the materials in question constituted industrial waste under the Act, whether the clean up notice was invalid, and whether the court had jurisdiction to hear the claim for a declaration of invalidity of the notice. The court also considered whether the other claims for declaratory relief were hypothetical or abstract due to the repeal of the Environment Protection Act 1970.

The court found that the materials in question were industrial waste under the Environment Protection Act 1970. It concluded that the clean up notice was not invalid. The court noted that the repeal of the Act did not render the claim for a declaration of invalidity of the notice hypothetical or abstract, as the notice was issued under the authority of the Act and its validity was being challenged. The court found that it had jurisdiction to hear the claim under the Supreme Court Act 1986. The other claims for declaratory relief were dismissed as hypothetical and abstract.

The court set aside the clean up notice and ordered the Environmental Protection Authority to pay Dasma Environmental's costs.

Orders