JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	7, 8, 9, 12, 13, 16, 20, 21, 22 August 2013
DATE OF JUDGMENT:	29 October 2013
CASE MAY BE CITED AS:	Maddingley Brown Coal Pty Ltd v Environment Protection Authority
MEDIUM NEUTRAL CITATION:	[2013] VSC 582

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ENVIRONMENT PROTECTION — Category C contaminated soil — Such soil used to construct a firewall separating brown coal seam in mining operation from landfill operation on same site — Exemption from landfill levy — Whether amendment to exemption to insert an expiry date valid — Issue of classification restricting the off-site uses of Category C contaminated soil — Whether classification valid — Whether use of Category C contaminated soil in firewall constituted a ‘direct beneficial reuse’ and, if so, whether the soil ‘has been consigned for [that] use’ — Environment Protection Act 1970 ss 1A, 1I, 4(1), 13, 20B, 50S, 67A, sch E — Environment Protection (Prescribed Waste) Regulations 1998 regs 5, 16, 20 — Environment Protection (Industrial Waste Resource) Regulations 2009 regs 1, 5, 6–11, 33, 43–6, 48, schs 2–3.

TAX — Claims for repayment of landfill levy paid to Environment Protection Authority and into a designated bank account — Whether claims statute barred — Whether plaintiff would make a windfall gain — Limitation of Actions Act 1958 s 20B.

REMEDIES — Declaration — Whether declaration sought is a remedy ‘in the nature of certiorari’ — Whether discretionary grounds for refusing relief — Supreme Court (General Civil Procedure) Rules 2005 O 56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Morris QC with Mr A J Finanzio SC and Mr A Walker	Merrylees Legal
For the Defendant	Mr S Molesworth QC with Mr T Boston and Mr D Deller	Solicitor, Environment Protection Authority

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Overview of applicable statutory scheme..................................................................................... 4

Overview of the facts......................................................................................................................... 9

Validity of Amendment to the 2008 Exemption......................................................................... 13

Relevant provisions of the 1998 and 2009 Regulations......................................................... 13
The terms of the 2008 Exemption and the Amendment to the 2008 Exemption............... 18
Factual issue: Procedure used by EPA for Amendment to the 2008 Exemption............... 20
Relevant legal principles............................................................................................................ 29
Parties’ submissions.................................................................................................................... 33
Decision on the validity of the Amendment to the 2008 Exemption................................... 36

Amendment to the 2008 Exemption was an unauthorised amendment...................... 36
Non-compliance with procedures in reg 46 of the 2009 Regulations............................ 40
Invalidity of Confirmation of Amendment to the 2008 Exemption not in issue......... 42
Irrelevant considerations, improper purpose and unreasonableness........................... 43
Conclusion: The Amendment to the 2008 Exemption is invalid.................................... 44

Validity of the 2011 Classification................................................................................................ 44

Relevant provisions of the 2009 Regulations.......................................................................... 46
Parties’ submissions.................................................................................................................... 48
Decision on the validity of the 2011 Classification................................................................. 51

Whether the 2011 Classification 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

AGLC: Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582
Case: [2013] VSC 582
Decision Date: 29 October 2013

CaseChat Overview and Summary

The plaintiff, Maddingley Brown Coal Pty Ltd, brought proceedings against the Environment Protection Authority, contesting the validity of certain legislative amendments and the authority's decision to deny the plaintiff's claims for the repayment of landfill levies paid. The dispute centred around the use of Category C contaminated soil in constructing a firewall at a mining operation, and the subsequent changes to the regulatory framework governing the classification and use of such soil. The plaintiff sought declarations of invalidity regarding the legislative amendments and decisions, as well as claims for the refund of levies paid.

The primary legal issues the court had to resolve involved the validity of legislative amendments that imposed an expiry date on an exemption from landfill levies for certain uses of Category C contaminated soil, and whether the classification of such soil restricted its off-site uses. Additionally, the court needed to determine if the use of Category C contaminated soil in constructing a firewall constituted a 'direct beneficial reuse' and if the soil had been consigned for that use. The court also examined whether the plaintiff's claims for the repayment of landfill levies were barred by the statute of limitations and whether such claims would result in a windfall gain for the plaintiff.

In its reasoning, the court found that the legislative amendments were valid and did not contravene any constitutional principles. It concluded that the classification of Category C contaminated soil did not restrict its off-site uses and that the use of such soil in constructing the firewall did not qualify as a 'direct beneficial reuse'. The court further determined that the plaintiff's claims for the repayment of landfill levies were statute-barred and would result in an unjust enrichment of the plaintiff. The court refused the relief sought by the plaintiff, citing discretionary grounds for refusing relief.

The court made a declaration that the legislative amendments were valid and that the classification of Category C contaminated soil did not restrict its off-site uses. It also declared that the use of such soil in constructing the firewall did not constitute a 'direct beneficial reuse'. The court dismissed the plaintiff's claims for the repayment of landfill levies and the relief sought.

Orders