Met Recycling Pty Ltd v Environment Protection Authority

[2022] NSWLEC 1378

Land and Environment Court

New South Wales

Medium Neutral Citation:

MET Recycling Pty Ltd v Environment Protection Authority [2022] NSWLEC 1378

Hearing dates:

Conciliation conference on 6 April 2022, 284 April 2022, 24 May 2022, 8 June 2022, and 28 June 2022

Date of orders:

18 July 2022

Decision date:

18 July 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Environment Protection Licence No 20948 is varied by amending condition L3.1 and inserting condition L3.2 to permit for the 24 hour, 7 days per week operation of the part of the land identified as Lease Area 4 and known as 134 Newton Street North (corner of Carnarvon Street and Newton Street North), Silverwater, subject to new conditions U3.1 to U3.10 as set out in Annexure A.

(3) Environment Protection Licence No 20948 is varied as set out in Annexure A dated the date of the Court’s judgment.

Catchwords:

MODIFICATION OF ENVIRONMENT PROTECTION LICENCE - conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, s 17, 34, 39

Protection of the Environment Administration Act 1991, ss 6, 45, 58, 83, 287, 2927

Protection of the Environment Operations Act 1997, ss 5, 48, 58, 287, 292

Texts Cited:

NSW Waste and Sustainable Materials Strategy 2021-2041 – Stage 1

Category:

Principal judgment

Parties:

MET Recycling Pty Ltdimited (Applicant)
Environment Protection Authority (Respondent)

Representation:

Counsel:

J Doyle (Applicant)
L Sims (Respondent)

Solicitors:

Colin Biggers & Paisley (Applicant)
Environment Protection Authority (Respondent)

File Number(s):

2022/00020741

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of an application to vary condition L3 in Environment Protection Licence No. 20948 (EPL) which applies to 134 Newton Street, Silverwater.

1. The appeal has been brought pursuant to s 287(1)(b) of the Protection of the Environment Operations Act 1997 (POEO Act).

2. The appeal falls within Class 1 of the Court’s jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory powers or functions to be exercised in determining the proceedings s 287(2) of the POEO Act and ss 34(3) and 39(2) of the LEC Act.

Background

2. The Environment Protection Licence and Lease Area 4:

1. The EPL is held by the Applicant, and applies to the premises identified as 134 Newtown Street North (corner of Carnarvon Street and Newton Street North), Silverwater (Lot 1 DP 713708) (the Site).

2. Figure 1 (below) is an extract from condition A2.2 of the EPL that has been marked up in blue to show the location of Lease Area 4. Figure 1 is copied from the Statement of Facts and Contentions filed in Court by the Applicant on 17 February 2022.

                    Figure 1

3. The EPL permits the Applicant to carry out resource recovery and waste storage activities. Condition L2.2 of the EPL states:

"Waste is only to be stored and/or processed on the area defined as Lease Area 4 on map titled "MET Recycling Silverwater Site Plan DA - 201" dated "8 November 2017".

4. Development consent DA384/87 dated 20 October 1988 applies to Lease Area 4 and permits: "Use of part of the site (area 4) for the wholesale sale, storage and processing of building, roadmaking and landscaping materials, builders sands, gravels, concrete, bricks, landscaping sands and soil mixes…"

5. Figure 1 is an extract from condition A2.2 of the EPL that has been marked up in blue to show the location of Lease Area 4.

6. Variation application: On 5 November 2021, the Applicant made an application to the NSW Environment Protection Authority (EPA) to vary condition L3 of the EPL under section 58(3) of the POEO Act (Variation Application). Condition L3 relates to hours of operation for the entire licenced area and presently states:

“The variation application seeks an amendment to condition L3 so as to allow the 24 hour operation of Lease Area 4. The operating hours for other areas of the licenced premises are to remain the same.”

7. The variation application sought the following amendments to condition L3 in bold:

"L3 Hours of operation L3.1

The hours of operation of the premises apart from Lease Area 4 shall be restricted to the following times:

“(a) Monday to Friday - 7:00am to 5:00pm

“(b) Saturday - 8:00am to 4:00pm

“(c) Sunday and Public Holidays - No activity permitted. L3.2

“The hours of operation of Lease Area 4 shall be unrestricted and 24 hours per day.

“Note: Lease Area 4 is defined on the map titled "MET Recycling Silverwater Site Plan DA - 201" dated "8 November 2017"."

3 The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 April 2022, 24 April 2022, 24 May 2022, 8 June 2022, and 28 June 2022. I presided over that conciliation conference.

Protection of the Environment Operations Act 1997

48   Licensing requirement—scheduled activities (premises-based)

(1) Application of section This section applies to scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on.

(2) Offence A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.

Maximum penalty—

(a)  in the case of a corporation—$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b)  in the case of an individual—$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

Note—

An offence against subsection (2) committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 169A.

Schedule 1 Scheduled activities

(Section 5)

Note—

Parts 1 and 2 of this Schedule list the activities that are scheduled activities for the purposes of this Act (see sections 48 and 49). Part 3 defines various words and expressions that are used in Parts 1 and 2.

Part 1 Premises-based activities

1   Application of Part

(1) For the purposes of section 48, any activity that is declared by this Part to be a scheduled activity is taken to be an activity for which a licence is required for the premises at which it is carried out (the activity is premises-based).

Note—

Section 48 (2) provides that the occupier of premises at which such an activity is carried out is guilty of an offence unless he or she holds a licence that authorises the activity to be carried out at those premises.

(2)  However, such an activity is not premises-based if it is carried out by means of mobile plant.

Note—

But see clause 47 by operation of which activities carried out by means of mobile plant are declared for the purposes of section 49.

58   Variation of licences

(1)  The appropriate regulatory authority may vary a licence, including the conditions of the licence.

(2)  A variation includes the following—

(a)  attaching a condition to a licence, whether or not conditions are already attached to the licence,

(b)  substituting, omitting or amending a condition of a licence.

(3)  A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.

(4)  A licence may be varied at any time during its currency, including on its being transferred to another person.

(5)  A licence is varied by notice in writing given to the holder of the licence.

(6)  If—

(a)  the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and

(b)  the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979.

the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

287   Appeals regarding licence applications and licences

(1)  Any person—

(a)  who makes a licence application and who is aggrieved by any decision of the appropriate regulatory authority with respect to the application, or

(b)  who is or was the holder of a licence and who is aggrieved by any decision of the appropriate regulatory authority with respect to the licence,

may, within 21 days (or such other period as is prescribed instead by the regulations) after being given notice of the decision of that authority, appeal to the Land and Environment Court against the decision.

(1A)  The lodging of an appeal—

(a)  in the case of an appeal against a decision to suspend or revoke a licence (whether with or without conditions)—does not operate to stay the decision appealed against, and

(b)  in the case of an appeal against any other decision—does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay the decision appealed against.

(1B)  For the avoidance of doubt, the Land and Environment Court has no jurisdiction to make an order staying a decision referred to in subsection (1A) (a).

(2)  An appeal under this section extends to a decision to refuse the licence application, to impose conditions on the issue of a licence, to vary the conditions of a licence, to revoke or suspend a licence, to refuse to approve the surrender of a licence, to impose conditions on a revocation, suspension or surrender of a licence or to attach any new conditions to, or to vary any conditions of, a suspension, revocation or surrender of a licence.

Note—

The Dictionary defines licence application to mean an application for the issue, transfer or variation of a licence or for approval of the surrender of a licence.

(3)  For the purposes of this section, a licence application is taken to have been refused—

(a)  in the case of an application for a variation of a licence about which the appropriate regulatory authority is required to invite and consider public submissions under section 58 (6), if the application is not granted within 90 days after it is duly made, or

(b)  in the case of an application for a licence relating to controlled development, if the application is not granted within 60 days after it is duly made or within 30 days after development consent is granted for the controlled development, whichever is the later, or

(c)  in any other case, if the application is not granted within 60 days after it is duly made.

(4)  The period commencing when an applicant is duly required under this Act to provide additional information within a specified period for the purposes of determining a licence application and ending when that information is provided or the specified period ends (whichever occurs first) is not to be taken into account in determining whether a licence application is taken to have been refused.

(5)  Nothing in this section prevents the determination of a licence application under this Act after the end of a period referred to in subsection (3).

(6)  There is no appeal under this section against a condition that is imposed on a licence, or varied or revoked, by the regulations.

Note—

Section 4.52 of the Environmental Planning and Assessment Act 1979 provides that, in the case of integrated development under that Act involving a licence application, the Court is under the same obligation as the appropriate regulatory authority with respect to the issue of the licence in accordance with the previous general terms of any approval by that authority.

292   Determination of appeals

(1)  A court to which an appeal is made under this Act may hear and determine the appeal.

(2)  The decision of the court on an appeal under this Act is final and binding on the appellant and the person or body whose decision or notice is the subject of the appeal.

3. At or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and granting consent to modify the EPL to permit part of the premises to operate for 24 hours a day for 7 days per week.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 292(1) and (20) of the POEO Act, ss 34(3)(a) and (b) and 39(2) of the LEC Act to uphold the appeal, and vary the EPL by amending condition L3.1 and inserting condition L3.2 to allow for the 24 hour, 7 days per week operation of the part of the land known as Lease Area 4, subject to new conditions U3.1 to U3.10 as set out in Annexure A. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The Applicant is required to hold an EPL under s 45 of the POEO Act as it carried out resource recovery and waste storage activities which are nominated as Schedule 1 activities under the POEO Act.

2. The Applicant lodged the Variation Application on 5 November 2021.

3. On 4 January 2022 the Variation Application was taken to be refused, being the date 60 days after the application was made, pursuant to s 287(3)(c) of the POEO Act.

4. On 24 January 2022 this Class 1 appeal was commenced in the Land and Environment Court of NSW pursuant to s 287 of the POEO Act against the deemed refusal of the Variation Application, being within 21 days of the deemed refusal date of 4 January 2022.

5. Section 292 of the POEO Act provides that a court to which an appeal is made under the POEO Act may hear and determine the appeal and the decision of the court is final and binding.

6. Section 45 of the POEO Act identifies the matters the EPA is required to take into consideration, as relevant, when determining an application to vary an EPL. The parties agree that the Variation Application (as amended during the conciliation conference) can be approved because the EPA has considered:

1. The relevant protection of the environment policies;

2. The relevant objectives of the EPA referred to in s 6 of the POEA Act Protection of the Environment Administration Act 1991 (NSW) (POEA Act) being:

1. To protect, restore and enhance the quality of the environment in NSW, having regard to the need to maintain ecologically sustainable development, and

2. To reduce the risks to human health and prevent the degradation of the environment, by means of:

3. (A)   promoting pollution prevention;

4. (B)   adopting the principle of reducing to harmless levels the discharge into the air, water or land substances likely to cause harm to the environment;

5. (C)   regulating the transportation, collection, treatment, storage and disposal of waste,

6. The pollution caused or likely to be caused by carrying out the activities (as varied) and the impact of that pollution. Noise impacts and air quality impacts have been carefully considered by a number of experts and the provision of additional material through the s 34 conciliation process.

7. Practical measures that could be taken to prevent, control, abate and mitigate pollution and protect the environment from harm as a result of that pollution. Proposed condition U3.3 contains a number of requirements that the Applicant is to comply with when operating on Lease Area 4 of the Site. These conditions have been imposed to prevent, control, abate and mitigate pollution and protect the environment.

8. Whether the Applicant is a fit and proper person pursuant to s 83 of the POEO Act.

9. The documents accompanying the Variation Application; and

10. The NSW Waste and Sustainable Materials Strategy 2021-2041 – Stage 1: 2021 – 2027.

7. Relevant to the consideration under s 45 of the POEO Act is the fact that the varied conditions will require that the operation of Lease Area 4 on the Site is to be initially undertaken for a 12 month period so that the impacts of those operations can be monitored and confirmed to have an acceptable impact on the surrounding environment.

8. Taking the matters identified by s 45 of the POEO Act into account as outlined above, the EPA has determined that the EPL as modified by the proposed Variation Application if complied with will continue to sufficiently protect the environment, will sufficiently reduce risks to human health and the degradation of the environment due to the rigorous requirements for noise and air quality monitoring, and will adequately mitigate noise and dust impacts from the licenced premises.

9. Development Consent DA384/87 permits the proposed activities, and applies to the Site, although the Variation Application applies to part of the Site being Lease Area 4.

10. Section 58(6) of the POEO Act identifies circumstances where the EPA is required to invite and consider public submissions before it varies an EPL. The parties agree that the Variation Application (if the agreed conditions as varied are complied with by the Applicant) will not authorise a significant increase in the environmental impact of the authorised activities and so there is no requirement to invite and consider public submissions before the EPL is varied pursuant to the Variation Application.

11. Annexure B contains the conditions the parties seek to be amended and inserted into the EPL pursuant to the Variation Application:

1. The parties propose that the existing condition L3.1 of the EPL which deals with hours of operation of the waste facility be amended, and a new condition L3.2 be inserted to allow the Applicant to operate Lease Area 4 for 24 hours per day, 7 days per week provided:

1. The Applicant complies with the Pollution Reduction Program required by new condition U3 in the EPL; and

2. Operations conducted between the hours of 5pm and 7am are limited to the processing of material already present on Lease Area 4 and may only utilise the equipment listed in condition U3.3(j), with no material to be received at, or to leave from, the premises during those hours.

2. The parties propose that new condition U3 be inserted to the EPL with the following effect:

1. The 24 hour operations of Lease Area 4 are subject to a 12 month review period following which those activities may continue unless the EPA advises the Applicant that it has not met the requirements in conditions U3.3, U3.7 and U3.8 to the satisfaction of the EPA.

2. The activities that may be carried out between 5pm and 7am on Lease Area 4 are restricted (e.g. no crushing activities may occur) and additional mitigation measures (e.g. requirement to have water sprayers installed) are required.

3. The Applicant is to engage a competent person as defined in the approved Methods for the Measurement and Analysis of Environmental Noise in NSW to undertake bi-annual noise monitoring. The Applicant is to provide two reports to the EPA which identify any further proposed mitigation measures recommended by the competent person.

4. The Applicant is to provide the EPA the results of air quality monitoring on the 7^th day of each calendar month.

5. The Applicant is to prepare and implement a Noise Management Plan before commencing the 24 hour operations of Lease Area 4.

6. The Applicant is to undertake an assessment and prepare a report to audit significant sources of particulate emissions at the premises and evaluate the feasibility and practicability of implementing any best practice measures identified to reduce particle emissions from site activities and minimise potential for off-site impacts.

12. Having regard to all of the above matters, the parties consider that the jurisdictional prerequisite to the proper exercise of the power to approve the Variation Application have been met and that the variation should be granted.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act:

1. The Applicant is the owner of the Site, and it has an EPL granted by the EPA because it carried out resource recovery and waste storage activities which are nominated as Schedule 1 activities under the POEO Act.

2. The Applicant lodged the Variation Application on 5 November 2021, and as the EPA has not processed the Variation Application, the Applicant had the right to lodge the Class 1 appeal in this Court because 60 days had elapsed after lodging the Variation Application with the EPA, and filing the Class 1 appeal in this Court within 21 days of the deemed refusal by the EPA, in accordance with s 287(3)(c) of the POEO Act.

3. I have taken into account the matters referred to in s 45 of the POEO Act, and the relevant objectives of the POEA Act, particularly to protect the quality of the environment, and to reduce the risks to human health. The 2 main issues in this matter were the possibility of air pollution by particulate matter and emanation of noise arising from the extended working hours for Lease Area 4 from 5pm to 7am for 7 days per week. At the conclusion of the conciliation conference the parties’ experts had reached agreement in relation to ongoing air and noise conditions to protect the quality of the environment and reduce the risks to human health. That protection has extended to a monitoring period of 12 months during which the Applicant will need to demonstrate the effectiveness of the agreed conditions to enable continuation of the operation of the extended hours as granted by this decision.

4. One of the matters raised by the parties was consideration of the NSW Waste and Sustainable Materials Strategy 2021-2041 – Stage 1: 2021-2027. The EPA gave the following reasons why this Policy is not applicable to this matter:

“The NSW Government is a strong supporter of waste minimisation and resource recovery. Over the past decade it has invested nearly $1 Billion in the waste sector, and the State’s waste levy continues to provide a strong incentive to divert waste from landfills.

“The NSW Waste Avoidance and Resource Recovery Act 2001 commits the NSW Government to refreshing and updating its waste strategy every five years, with its purpose being to review and continually improve the state’s policies and targets for waste reduction and landfill diversion. The NSW Waste and Sustainable Materials Strategy 2041—Stage 1: 2021–2027 (WASM) is the current iteration of that waste strategy.”

5. The WASM sets high-level targets as follows:

1. reduce total waste generated by 10% per person by 2030

2. have an 80% average recovery rate from all waste streams by 2030

3. significantly increase the use of recycled content by governments and industry

4. phase out problematic and unnecessary plastics by 2025

5. halve the amount of organic waste sent to landfill by 2030.

6. The WASM also commits to:

• introduce a new overall litter reduction target of 60% by 2030 and a plastic litter reduction target of 30% by 2025, as set out in the NSW Plastics Action Plan

• set a goal to triple the plastics recycling rate by 2030, as set out in the NSW Plastics Action Plan

• reaffirm our commitment to the goal of net zero emissions from organic waste by 2030, as laid out in the NSW Net Zero Plan Stage 1: 2020–2030

• establish new indicators to help us track our progress on infrastructure investment and the cost of waste services

• develop a new measure of the emissions performance of our waste and materials management. This will help us to track our performance across the lifecycle of materials.

7. For recycling of the building and demolition waste stream, NSW is already tracking close to the 80% target, with 77% of materials recovered in the 2019/20 financial year. The WASM does not identify the need for any addition building and demolition waste processing capacity between now and 2040.

8. Therefore, whilst the activities of recycling carried out by the applicant are broadly encouraged and supported by the WASM, it has no specific application to this matter.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall make the orders as requested pursuant to ss 34(3) and 39(2) of the LEC Act and s 292 of the POEO Act.

7. The Court orders:

1. The appeal is upheld.

2. Environment Protection Licence No 20948 is varied by amending condition L3.1 and inserting condition L3.2 to permit for the 24 hour, 7 days per week operation of the part of the land identified as Lease Area 4 and known as 134 Newton Street North (corner of Carnarvon Street and Newton Street North), Silverwater, subject to new conditions U3.1 to U3.10 as set out in Annexure A.

3. Environment Protection Licence No 20948 is varied as set out in Annexure A dated the date of the Court’s judgment.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (131078, pdf)

**********

Decision last updated: 20 July 2022