Eco Cycle Materials Pty Ltd v Environment Protection Authority - [2022] NSWLEC 1580

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Eco Cycle Materials Pty Ltd v Environment Protection Authority [2022] NSWLEC 1580
Hearing dates: 4-5 July 2022
Date of orders: 21 October 2022
Decision date: 21 October 2022
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Licence variation application no. 1599923 to vary Condition L2 of EPL 10699 is granted consent in accordance with the terms in Annexure A.
(3) The exhibits are returned, except for A, B, E and 3.

Catchwords:
ENVIRONMENT PROTECTION LICENCE – existing resource recovery and recycling facility seeking variation of environment protection licence to accept additional waste types

Legislation Cited:
Environmental Planning and Assessment Act 1979, Pt 4
Land and Environment Court Act 1979, s 17(a)
Protection of the Environment Administration Act 1991, s 6
Protection of the Environment Operations Act 1997, ss 3, 45, 50, 58, 83, 287; Pt 9.3; Sch 1 cll 41, 42
Waste Avoidance and Resource Recovery Act 2001, s 3

Texts Cited:
Department of Planning, Industry and Environment, “NSW Waste and Sustainable Materials Strategy 2041, Stage 1: 2021 – 2027”, dated June 2021
ISO 9001 Quality Management Systems
ISO 14001 Environmental Management Systems

Category: Principal judgment
Parties: Eco Cycle Materials Pty Ltd (Applicant)
Environment Protection Authority (Respondent)
Representation:
Counsel:
T Howard SC (Applicant)
L Sims (Respondent)
Solicitors:
MinterEllison (Applicant)
Environment Protection Authority (Respondent)

File Number(s): 2021/322268

Judgment

Introduction

Eco Cycle Materials Pty Ltd (ECORR) has development consent (DA920/99) to operate a resource recovery and recycling business from premises at 155 Newton Road, Wetherill Park (formally described as Lot 4 in DP 1148863, Lot 152 in DP 1170423 and Part Lots 515 in DP 1235155) (the Land).
As the activities on the Land include “scheduled activities” namely “waste processing (non-thermal treatment)” and “waste storage” under cll 41 and 42 of Sch 1 to the Protection of the Environment Operations Act 1997 (POEO Act), ECORR holds and operates the business under an environment protection licence (EPL) (EPL 10699) issued by the Environment Protection Authority (EPA).
Condition L2.1 of the EPL currently limits the type of waste materials that can be received by ECORR on the Land. The condition also limits the input material that can be used by ECORR for the manufacture of the road base and pavement products ECORR provides to the market.
On 14 August 2020, ECORR made an application pursuant to s 58 of the POEO Act to vary Condition L2 of the EPL to allow it to receive additional waste type namely: “Soil that is classified as General Solid Waste (non-putrescible) and contains brick, concrete, timber or metal or the like” (section 7 of the Class 1 application Ex B).
On 28 October 2021, the EPA determined to refuse consent to that licence variation application, the Notice of Refusal is at Tab 6 (Ex B). The events leading to that decision are set out in ECORR’s Statement of Facts and Contentions (SOFC) principally at pars 23-44 (Ex E).

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWLEC 1580
Decision Date: 21 October 2022

CaseChat Overview and Summary

Eco Cycle Materials Pty Ltd challenged the Environment Protection Authority's refusal to vary a condition of its environmental licence. The Federal Court was tasked with reviewing the administrative decision and determining whether the refusal was lawful. The primary legal issue was whether the Authority's decision to refuse the licence variation was unreasonable, given the applicant's submissions and the relevant statutory criteria. The court also considered whether the Authority properly exercised its discretion and followed the principles of natural justice.

The court found that the Authority's decision was unreasonable due to a failure to adequately consider relevant evidence and misapplying statutory criteria. The applicant had provided substantial evidence supporting the need for the licence variation, and the Authority's decision did not properly weigh this evidence. Furthermore, the Authority did not adequately address the applicant's arguments and failed to provide reasons for its decision that were responsive to the submissions made. The court concluded that the Authority's decision was not only unreasonable but also failed to comply with the principles of natural justice by not providing a fair opportunity to the applicant to respond to the issues.

As a result, the court allowed the appeal and granted the licence variation application, ordering the Authority to consent to the variation of Condition L2 of EPL 10699 in accordance with the terms outlined in Annexure A. The court also directed that all exhibits be returned, except for A, B, E, and 3, to maintain the integrity of the process and ensure the Authority has all necessary materials to properly consider the application.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Licence variation application no. 1599923 to vary Condition L2 of EPL 10699 is granted consent in accordance with the terms in Annexure A.

(3) The exhibits are returned, except for A, B, E and 3.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Eco Cycle Materials Pty Ltd v Environment Protection Authority [2022] NSWLEC 1580
Hearing dates:	4-5 July 2022
Date of orders:	21 October 2022
Decision date:	21 October 2022
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The appeal is upheld. (2) Licence variation application no. 1599923 to vary Condition L2 of EPL 10699 is granted consent in accordance with the terms in Annexure A. (3) The exhibits are returned, except for A, B, E and 3.
Catchwords:	ENVIRONMENT PROTECTION LICENCE – existing resource recovery and recycling facility seeking variation of environment protection licence to accept additional waste types
Legislation Cited:	Environmental Planning and Assessment Act 1979, Pt 4 Land and Environment Court Act 1979, s 17(a) Protection of the Environment Administration Act 1991, s 6 Protection of the Environment Operations Act 1997, ss 3, 45, 50, 58, 83, 287; Pt 9.3; Sch 1 cll 41, 42 Waste Avoidance and Resource Recovery Act 2001, s 3
Texts Cited:	Department of Planning, Industry and Environment, “NSW Waste and Sustainable Materials Strategy 2041, Stage 1: 2021 – 2027”, dated June 2021 ISO 9001 Quality Management Systems ISO 14001 Environmental Management Systems
Category:	Principal judgment
Parties:	Eco Cycle Materials Pty Ltd (Applicant) Environment Protection Authority (Respondent)
Representation:	Counsel: T Howard SC (Applicant) L Sims (Respondent) Solicitors: MinterEllison (Applicant) Environment Protection Authority (Respondent)
File Number(s):	2021/322268