Scott Greenwood v Environment Protection Authority

[2025] NSWLEC 1051

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Scott Greenwood v Environment Protection Authority [2025] NSWLEC 1051

Hearing dates:

9 and 10 December 2024

Date of orders:

30 January 2025

Decision date:

30 January 2025

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld in part.

(2) The variation notice no. 1636139 of EPL 4669 for the ‘Greenwood Landfill’ is granted consent in accordance with the terms in Annexure A.

(3) All the Exhibits are returned except Exhibits B and 2.

Catchwords:

ENVIRONMENT PROTECTION LICENCE – existing resource recovery and recycling facility appealing variation of the environment protection licence

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979, ss 17, 39

Protection of the Environment Operations Act 1997, Pt 3, ss 3, 45, 50, 58, 83, 287

Protection of the Environment Administration Act 1991, s 6

Waste Avoidance and Resource Recovery Act 2001

Category:

Principal judgment

Parties:

Scott Greenwood (Applicant)
Environment Protection Authority (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
M Dalla-Pozza (Respondent)

Solicitors:
M Flaherty (Applicant)
Environment Protection Authority (Respondent)

File Number(s):

2024/305354

Publication restriction:

Nil

Judgment

Introduction

1. Mr Scott Greenwood (the Applicant) holds Environment Protection Licence 4669 (EPL) for the ‘Greenwood Landfill’, which is a waste recovery and recycling facility located at 9994 Mona Vale Rd, Belrose, NSW (the premises).

2. On 29 July 2024, the Environment Protection Authority (EPA) varied the licence under s 58 of the Protection of the Environment Operations Act 1997 (POEO Act) by issuing Licence Variation Notice No. 1636139 (2024 Licence Variation). The licence in force immediately prior to the 2024 Licence Variation was dated 15 November 2021 (2021 Licence).

3. On 19 August 2024, the Applicant, pursuant to s 287 of the POEO Act, filed an appeal of the conditions attached to the 2024 Licence (as imposed by the 2024 Licence Variation).

4. These proceedings fall within the Court’s Class 1 jurisdiction pursuant to s 17(a) of the Land and Environment Court Act 1979 (LEC Act). Section 39 of the LEC Act provides that, in the course of an appeal in Class 1 of the Court’s jurisdiction, the Court exercises the functions and discretions of the person whose decision is the subject of the appeal. In this case, the relevant functions and discretions are the EPA’s licensing functions under Part 3 of the POEO Act.

5. On 9 October 2024, the Court granted a stay to the following conditions of the 2024 Licence Variation pending the hearing of the Class 1 proceedings on 9 and 10 December 2024 (these proceedings):

1. Stay the insertion of the (new) Condition L2.2 by the 2024 Licence Variation, to the extent that it relates to Stockpile 26, as marked on the map at Condition A2.2.

2. Stay the amendment of Condition L2.1 by the 2024 Licence Variation, to the extent that it prevents the receipt of:

1. building and demolition waste;

2. office and packaging waste;

3. waste tyres; and

4. asphalt waste.

3. Stay the deletion of Conditions L2.5 to L2.7 by the 2024 Licence Variation.

6. The practical effect of these orders is to allow the Applicant to continue to receive the types of waste on the premises permitted under the 2021 Licence until the Court makes its orders in these proceedings.

The proposed variation

7. The central contention in these proceedings is the amendments made by the EPA to Condition 2.1 of the EPL which relates to the types of waste permitted to be received at the premises and the scheduled activities that can be carried out at the premises to manage and process this waste, namely:

1. Resource recovery;

2. Waste storage; and

3. Waste disposal (application to land) (typically referred to as ‘Landfilling’).

8. Under Condition L2.1 of the 2021 Licence, the Applicant is permitted to receive the following types of waste on the premises for the following purposes:

1. For the purposes of waste disposal (application to land), resource recovery, and waste storage:

1. Virgin Excavated Natural Material (VENM);

2. Building and demolition waste;

3. Asphalt waste; and

4. Garden waste.

2. For the purpose of waste disposal (application to land) only:

1. Office and packaging waste; and

2. Waste tyres.

9. Following the 2024 Licence Variation, Condition L2.1 of the 2024 Licence permits the applicant to receive the following waste at the premises for the following purposes:

1. For the purposes of resource recovery and waste storage only:

1. Virgin Excavated Natural Material;

2. Concrete;

3. Bricks; and

4. Garden Waste.

10. The key differences between Condition L2.1 of the 2024 Licence and the 2021 Licence are therefore:

• removing ‘waste disposal (application to land)’ as a permissible activity for all waste types;

• preventing receipt of ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ for any purpose;

• preventing the receipt of ‘building and demolition waste’ but replacing it with ‘concrete’ and ‘bricks’ for the purposes of resource recovery and waste storage only; and

• permitting the receipt of VENM and Garden Waste for the purposes of resource recovery and waste storage only.

The Applicant’s position

Prevents screening of waste on the premises

11. The Applicant contends that the 2024 Licence Variation prevents the receipt and screening of ‘mixed waste’ on the premises. In particular, the Applicant contends that virtually all the waste received at the premises over the last 30 years arrives as ‘mixed waste’ comprising primarily building and demolition waste.

12. After the waste is received at the premises, it is sorted and screened prior to processing through specific waste recycling and recovery streams. Approximately 95 percent of the imported material is recycled/recovered and sold to customers, with approximately 5 percent of the residual waste stockpiled/stored on the premises. The Applicant is proposing to dispose of the existing stockpiles and future residual waste from the waste recovery/recycling activities on the premises into the landfill cell which is currently under construction.

13. The Applicant contends that by removing the ‘building and demolition waste’ and replacing these with the specific waste descriptors such as ‘concrete’ and ‘bricks’, it will require the imported materials to be screened prior to arriving at the premises rather than allowing these materials to be screened at the premises, which has been the practice for at least 30 years.

14. This is because building and demolition waste inherently contains a range of materials and impurities and it is only after it has been inspected and sorted that it can be classified with certainty as being a particular resource recovery product. For example, concrete waste will typically contain metal reinforcement, timber, plastic and other materials. Similarly, bricks typically contain other materials such as electrical cabling.

15. Furthermore, the Applicant contends that the limitation on screening at the premises (as described above) is contrary to the 1987 development consent, as modified, which in Greenwood v Warringah Shire Council [2012] NSWLEC 152 (Greenwood) at [216] Sheahan J held the consent allows the “screening of imported materials for the recycling of sandstone, soil, masonry, and vegetation”.

Prevents completion of the landfill cell

16. The Applicant contends that the 2024 Licence Variation will:

1. prevent the Applicant from accepting waste for the purposes of ‘Waste Disposal (application to land)’ which is the purpose for which a cell is under construction on the premises;

2. severely constrain the Applicant’s ability to carry out ‘Waste Storage’ and ‘Resource Recovery’ on the premises because of the newly introduced prohibition on screening waste; and

3. severely limit the Applicant’s ability to finance the completion of the cell which is otherwise estimated to be completed by March 2025.

Inconsistency between the licence and the licence summary

17. The Applicant contends that the activities referred to in the 2024 Licence Variation summary do not match those in the document which purports to the be the 2024 Licence.

18. In particular, Condition A1 of the 2024 Licence Variation authorises three types of scheduled activities, including ‘waste disposal (application to land)’, whereas the 2024 Licence Variation Summary indicates that ‘waste disposal (application to land)’ has been removed from the licence due to the Applicant currently not having the ability to undertake any landfilling on the premises.

The EPA’s position

The licence variation does not prevent screening on the premises

19. The EPA argues that Condition L2.1 of the 2024 Licence Variation does not have the effect contended by the Applicant. In particular, the 2024 Licence Variation does not introduce a new prohibition against the receiving of ‘mixed waste’ as the Applicant has never been permitted to inspect or sort any ‘mixed waste’ which he has not been permitted to receive on the premises.

20. While the EPA accepts that a delivery of either ‘concrete’ or ‘bricks’ will contain other items, it argues that this is not a difficulty that arises as a consequence of the 2024 Licence Variation - as the Applicant will be able to continue to receive the same deliveries of these materials that he was prior to the variation coming into effect.

21. To the extent that the Applicant contends that there is a difference between ‘building and demolition waste’ and ‘bricks’ and ‘concrete’, the EPA contends that the 2024 Licence Variation is appropriate because:

• it reflects the terms of the Development Consent for the premises as construed by Sheehan J in Greenwood at [216]; and

• the evidence suggests that there are a number of environmental risks associated with the manner in which waste is stored on the premises, and that it is appropriate to impose tighter controls on the types of waste the Applicant is permitted to receive that align with what is encompassed by the Development Consent (see below).

22. To the extent that the Applicant relies on the Development Consent in support of the contentions, it is submitted by the EPA that this reliance is misconceived, for the following two reasons:

1. Firstly, the Development Consent does not purport to permit the Applicant to receive any waste other than those described in Condition L2.1 of the 2024 Licence Variation. The EPA submits that the terms of the Development Consent only permitted screening ‘for the recycling of sandstone, soil, masonry and vegetation’ and under the 20024 Licence Variation, the Applicant is still permitted to receive each of these types of waste.

2. Secondly, the EPA submits that the Development Consent is irrelevant to the question of what types of wastes should and should not be permitted to be received under a licence issued under the POEO Act. There is nothing in the EPA Act requiring a licence under the POEO Act to be granted so as to give effect to, and to be substantially consistent with, the present Development Consent. The clear inference is that Parliament intended that, a licence under the POEO Act could prohibit something that would otherwise be permitted by the Development Consent.

23. On this basis, the EPA submits that the terms of the Development Consent are therefore irrelevant to the question of whether the 2024 Licence Variation should have been made, having regard to the matters under s 45 of the POEO Act.

The licence variation does not prevent completion of the landfill cell

24. The EPA submits that while the 2024 Licence Variation does prevent the Applicant from receiving waste for the purposes of waste disposal (application to land) (i.e. landfilling) it does not prevent the Applicant from completing the construction of the landfill cell.

25. The EPA submits the restriction on waste disposal (application to land) is entirely appropriate given that, at the moment, the Applicant lacks the ability to store that waste (as the landfill cell has not been completed). In the absence of such a completed landfill cell, the Applicant is not, and cannot, receive that waste for landfilling purposes.

26. The EPA notes the landfill cell currently under construction cannot be assessed until the Construction Quality Assurance Report has been received and reviewed by the EPA, which is a requirement of condition E2.2 under both the 2021 Licence and 2024 Licence.

27. In particular, the EPA submits that to permit the Applicant to receive ‘waste disposal (application to land)’ without receiving the Construction Quality Assurance Report would be premature as the EPA would have no way of determining whether the cell was appropriate to receive waste and what type of waste should be permitted to be disposed of within the cell.

28. The EPA also points out that the inability to receive waste for the purposes of ‘waste disposal (application to land)’ until the landfill cell is completed raises the question of where and how waste intended for landfill will be stored in the interim. It particularly raises the question of whether such waste is currently being (and in the future can be) stored in a manner which meets the objectives and considerations under s 6 of the Protection of the Environment Administration Act 1991 (POEA Act) and s 45(c) of the POEO Act which deal with preventing pollution and harm to the environment. The EPA submits that some of the waste on the premises is not being stored in an appropriate manner and poses a risk to the environment.

29. As outlined above at [20], the EPA considers that the Applicant may continue to screen the waste types that are permitted to be received at the premises and the 2024 Licence Variation does not introduce any new prohibition in regard to screening contrary to the contention of the Applicant.

30. In regard to the contention about the ability of the Applicant to finance the completion of the landfill cell, the EPA submits that there is insufficient evidence for the Court to conclude that the 2024 Licence Variation would prevent the Applicant from financing the completion of the landfill cell.

31. In particular, it argues that the Applicant is not receiving waste for the purpose of landfilling and cannot receive waste for this purpose unless and until the landfill cell is completed. The inability to receive waste for the purpose of landfilling can therefore not occasion any loss during the period prior to the completion of the landfill.

32. Furthermore, the EPA argues that the Waste and Resource Report submitted by the Applicant indicates that only about 5 percent of the waste received at the premises is not recycled or recovered and hence the financial loss of not being able to place this waste into the landfill cell would be considerably less than asserted by the Applicant.

There is no uncertainty about the content of the 2024 Licence Variation

33. The EPA submits that no uncertainty arises in regard to the terms of the 2024 Licence. In particular, the terms of the 2024 Licence are those set out in the body of the Licence itself. The fact that it is inconsistent with the Licence Variation Summary is of no import and does not introduce uncertainty into the Licence itself. This is because the Licence Variation Summary does not form part of the ‘Notice’ given to the applicant pursuant to s 58(5) of the POEO Act.

34. Importantly, the EPA submits that there is no contradiction between the variation made at Condition L2.1 of the Variation Notice, and the terms of the document identified as ‘Environment Protection Licence’ and attached to the Variation Notice.

35. Further, to the extent that any legal uncertainty arises from any typographical errors in the Licence Variation Summary, such uncertainty relates to whether ‘waste disposal (application to land)’ is permitted, which does not currently take place on the premises, and will not be able to take place until the landfill cell is completed and relevant documentation approved.

36. Finally, the EPA submits that the issue of the Licence Variation Summary to the Applicant is not an exercise by the EPA of its licencing functions and not appealable under s 287 of the POEO Act.

37. In summary, the EPA submits that the contentions raised by the Applicant and the evidence relied upon by the Applicant do not provide a sufficient basis for the Court, having regard to the considerations in s 45 of the POEO Act, to vary the 2024 Licence.

Environmental risks not addressed by the Applicant

38. The EPA also submits that, when exercising the EPA’s licensing functions, the Court should give significant weight to the various environmental risks on the premises under s 45(c) and 45(b) of the POEO Act, which refers to s 6(1)(b) of the POEA Act.

39. In particular, the EPA raised concerns about the receipt of general mixed building and demolition waste at the premises and the risk of contaminating other resource recovery materials and the risk this may pose to human health and the environment. It suggests that the recent identification of asbestos at ‘Stockpile 26’ on the premises is an example of the risk posed by either the historic activities on the premises and/or the receipt of demolition and building waste, and notes that the 2021 Licence does not contain conditions to appropriately manage the risks posed by resource recovery and storage of ‘building and demolition waste’ at the premises.

40. Further, the EPA submits that if the 2024 Licence Variation is reversed, a number of other risks to the environment will be posed which should be a significant factor against the Court making such decision.

41. In particular, the EPA notes that:

• The boundary of the Premises will continue to be undefined.

• No ‘authorised amount’ limitation will be imposed, meaning that there will be no requirement to keep stockpiles of waste to a manageable level, increasing the risk of dust during dry conditions and stormwater runoff during wet conditions.

• There will be no requirement to manage leachate and stormwater runoff from the resource recovery activities, which is particularly important given that the premises is uphill and adjacent to the Garigal National Park.

• Stockpile 26 (which comprises both historical waste and is currently used to store residual waste from waste recovery operations on the premises) will continue to be permitted to be used as a work platform without appropriate capping and management. These activities also pose a high risk of leachate being generated (in addition to risks associated with asbestos contamination referred to above at [39]).

Statutory framework

42. On appeal, the Court in assessing and determining the application to vary the licence, is exercising the functions conferred by s 58 of the POEO Act and in exercising these functions must consider the matters in ss 45 and 50 of the POEO Act.

43. Section 58 of the POEO Act provides:

1. 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.

44. Section 45 of the POEO Act provides:

45  Matters to be taken into consideration in licensing functions

In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance—

(a)  any protection of the environment policies,

(b) the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991,

(c)  the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment,

(d)  the practical measures that could be taken—

(i)  to prevent, control, abate or mitigate that pollution, and

(ii)  to protect the environment from harm as a result of that pollution,

(e)  any relevant green offset scheme, green offset works or tradeable emission scheme or other scheme involving economic measures, as referred to in Part 9.3,

(f)  whether the person concerned is a fit and proper person,

Note—

See section 83 for provisions relating to the determination of whether a person is a fit and proper person for the purposes of this section.

(f1)  in relation to an activity or work that causes, is likely to cause or has caused water pollution—

(i)  the environmental values of water affected by the activity or work, and

(ii)  the practical measures that could be taken to restore or maintain those environmental values,

(g)  in connection with a licence application relating to the control of the carrying out of non-scheduled activities for the purpose of regulating water pollution—whether the applicant is the appropriate person to hold the licence having regard to the role of the applicant in connection with the carrying out of those activities,

(h)  in connection with a licence application—any documents accompanying the application,

(i) in connection with a licence application—any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the Environmental Planning and Assessment Act 1979,

(j)  in connection with a licence application—any relevant species impact statement prepared or obtained by the applicant under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994,

(k)  in connection with a licence application, any waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001,

(l)  in connection with a licence application—

(i)  any public submission in relation to the licence application received by the appropriate regulatory authority under this Act, and

(ii)  any public submission that has been made under the Environmental Planning and Assessment Act 1979, in connection with the activity to which the licence application relates, and that has been received by the appropriate regulatory authority,

(m)  if the appropriate regulatory authority is not the EPA—any guidelines issued by the EPA to the authority relating to the exercise of functions under this Chapter.

45. Section 50 of the POEO Act provides:

1. Timing of licensing of development requiring consent under EP&A Act

(1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.

(2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.

(3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use.

(4) Definitions In this section—

development has the same meaning as in the Environmental Planning and Assessment Act 1979.

development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Division 5.2 of that Act.

existing use has the same meaning as in Division 4.11 of the Environmental Planning and Assessment Act 1979.

Issues for determination

46. In essence, the issues in these proceedings focus on whether, on the merits, the Court should grant the licence variation which proposes to:

1. Change the waste types able to be received at the premises under Condition L2.1 of the Licence, namely:

1. preventing the receipt of ‘building and demolition waste’ but replacing it with ‘concrete’ and ‘bricks’ for the purposes of resource recovery and waste storage only; and

2. preventing receipt of ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ for any purpose.

2. Remove ‘waste disposal (application to land)’ from the list of permitted scheduled activities in Condition A1 of the 2021 Licence.

3. Impose a waste storage limit for the premises of 26,000 tonnes at any one time under Condition 2.2 of the Licence.

Consideration

Development consent

47. There has been substantial evidence in the proceedings about what waste types the Development Consent for the facility allows to be imported into the premises, and whether the 2024 Licence Variation is consistent with the Development Consent or not.

48. The EPA submits that the terms of that consent permit, relevantly, the screening only for the recycling of ‘sandstone’ and ‘masonry’ and does not permit the receipt of ‘building and demolition’ waste generally. It submits that ‘concrete’ and ‘bricks’ are closer analogues to ‘sandstone’ and ‘masonry’ than is ‘building and demolition waste’, and the latter term is capable of encompassing a range of materials falling outside the ordinary meaning of the words ‘sandstone’ or ‘masonry’ (such as timber, glass, metal and construction materials made out of plastic).

49. However, the Applicant contends that in Greenwood, Sheahan J held that:

• in 1987 consent was granted for the importation, stockpiling, recycling and resale of materials (at [73]);

• the 1987 consent, as modified, was not limited to screening of imported materials for recycling of only sandstone, but “now covered screening of imported materials for the recycling of sandstone, soil, masonry, and vegetation” (at [216]); and

• in 1994, consent was granted for, inter alia, landfill (at [113]).

50. The positions of the parties reflect a fundamentally different interpretation of what the Development Consent allows and what Sheehan J held in Greenwood.

51. The EPA appears to consider that only ‘sandstone, soil, masonry, and vegetation’ (or their equivalent) can be imported onto the premises, whereas the Applicant appears to consider that the imported materials are not restricted to ‘sandstone, soil, masonry, and vegetation’ and that a broader range of materials can be imported and screened on the premises for the recycling of ‘sandstone, soil, masonry, and vegetation’ (or their equivalent).

52. I agree with the EPA’s position that a licence under the POEO Act can prohibit something that would otherwise be permitted by the Development Consent, having regard to the matters in s 45 of the POEO Act. However, I do not agree with the EPA that the Development Consent is entirely irrelevant to the question of what types of wastes should and should not be permitted to be received under a licence issued under the POEO Act.

53. In Eco Cycle Materials Pty Ltd v Environment Protection Authority [2022] NSWLEC 1580 at [17], Dixon SC relevantly states that, “Section 50(2) of the POEO Act precludes the grant of the licence if this would permit the carrying out of development which is not the subject of development consent granted under the Environmental Planning and Assessment Act 1979.” Section 50(2) also relevantly incorporates variations to existing licences (which is the case in these proceedings) as well as granting of new licences.

54. While I do not propose to canvass the entire history of the Development Consent, I prefer the interpretation of the Applicant in regard to what waste materials can be imported onto the premises for recycling.

55. In particular, I consider that the Development Consent does not clearly articulate what waste types can be imported onto the premises for ‘stockpiling, recycling and resale’, but rather focuses on what materials can be imported for the purposes of screening and recycling at the premises. I also consider that trying to align contemporary definition of waste classifications with the terminology in the Development Consent such as ‘masonry’ is problematic.

56. Instead, I consider that in practice the primary regulatory mechanism in regard to the types of waste received and recovered at the premises over the last 20 years or more has been the Environment Protection Licence, particularly as the original Development Consent is from 1987 with limited modification since that time in regard to the types of waste permitted to be imported onto the premises.

57. A review of the historical Environment Protection Licences for the premises, shows that ‘building and demolition waste’, ‘VENM’, ‘garden waste’, ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ have been permitted to be received at the premises since at least 2010, and even earlier in the case of waste tyres.

58. Given the above, I consider that there is nothing in the Development Consent that would prevent importation of all the waste types which have been permitted under the various Environment Protection Licence over the last 15 years, including those listed in Condition L2.1 the 2021 Licence.

Building and demolition waste

59. For the reasons given below, I consider that the Applicant should be permitted to continue to receive ‘building and demolition waste’ at the premises.

60. Firstly, I accept the evidence from the Applicant that from a practical and historical perspective, it is not reasonable to expect that the waste received has been ‘pre-screened’ and ‘segregated’ into the various permitted waste types prior to arrival at the premises (such as ‘concrete’ and ‘bricks’). I accept the evidence from the Applicant that ‘building and demolition waste’ inherently contains other materials that require screening at the premises prior to further processing.

61. The EPA submits that the Applicant will be able to continue to receive the same deliveries of ‘concrete’ and ‘bricks’ that he was prior to the variation coming into effect. However, it did not provide any convincing evidence about how and where this type of waste could be practically screened into the relevant materials prior to being received at the premises and whether this is standard practice within the waste recovery and recycling industry.

62. Secondly, I accept the evidence from the Applicant that the vast majority of the material received at the premises comprises ‘building and demolition waste’ and has been accepted at the premises for approximately 30 years. I also accept the Applicant’s evidence that to replace this category of waste with ‘concrete’ and ‘bricks’ will result in a financial loss for the current operations as customers are likely to take their waste to an alternative site where pre-screening of appliable waste types is not required.

63. Thirdly, while I accept that the environmental management of the premises in regard to leachate management and weed control can be improved based on the site inspection and the evidence form Mr Vlasoff (Operations Officer at the EPA), the EPA did not provide sufficient specific evidence that replacing ‘building and demolition waste’ with ‘concrete’ and ‘bricks’ would resolve these issues.

64. In particular, the EPA submits that if the the 2024 Licence Variation is reversed, a number of other risks to the environment will be posed as set out in [41] above.

65. While I accept that confining the waste to ‘concrete’ and ‘bricks’ may address the environmental risks to some extent, most of the issues identified by the EPA will be addressed through imposition of the new conditions proposed in the 2024 Licence (as outlined in [71] below) rather than the conditions relating to the types of waste permitted at the premises.

66. I also note that Mr Vlasoff’s concerns about contamination appear to principally apply to the receipt of ‘mixed waste’ on the premises, some of which he submits include skip bin and drop-off waste from the general public, consisting of ‘bricks, tiles, plaster board, food packaging, plastic, wood, pallets, cardboard, and broken household fittings and furniture’.

67. To the extent that the waste received at the premises is not permitted under the Licence (such as household waste in skip bins), this is a matter that should be separately addressed through compliance action by the EPA, including in regard to the risk of asbestos contamination.

68. In regard to the environmental risks posed by the current operations, the existing 2021 Licence incorporates a range of conditions to manage onsite and offsite environmental risks such as leachate and weed control. The 2024 Licence Variation includes a number of new conditions to impose further controls for the recovery and storage of building and demolition waste on the premises, including:

• Condition L2.2 which limits the total waste able to be stored on the premises to 26,000 tonnes at any one time;

• Condition O3.2 requiring the premises to be maintained to prevent dust;

• Condition O5.2 requiring stormwater to be diverted away from waste;

• Condition O5.6 to control pests, vermin and weeds at the premises; and

• Condition E1 which includes a range of obligations to manage Stockpile 26 such as temporary capping of the stockpile to stop the growth of weeds and the generation of leachate, and ceasing to utilise this stockpile as a working platform for incoming waste until it has been appropriately capped.

69. During the proceedings, the Applicant indicated it had no objections to these conditions (apart from Condition L2.2 which is addressed at [89] – [96] below), and I consider that with the imposition and enforcement of these conditions, the environmental risks identified by the EPA can be appropriately managed.

70. Fourthly, as discussed above, I consider that the Development Consent allows for the importation of ‘building and demolition waste’ onto the premises and hence would not infringe s 50(2) of the POEO Act.

Other waste types

71. For the reasons below, I consider that the Applicant should not be permitted to continue to receive ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ at the premises.

72. The EPA submits that preventing the receipt of ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ is appropriate for two key reasons. Firstly, that the receipt of these materials presents a risk of environmental harm, and secondly, that the Development Consent does not permit the Applicant to receive these waste types at the premises.

73. In regard to asphalt, I accept the evidence of Mr Vlasoff where he states that (see Affidavit 24 September 2024):

“I have never observed asphalt waste on the Premises and there is no asphalt waste recorded in the WARRP data detailed in my affidavit above. I am not aware of any environmental assessment relating to controls for the resource recovery of asphalt on the Premises and it is therefore impossible to accurately assess impacts of this activity.”

74. Given the above, and the fact that the Applicant indicated it would be willing to accept the removal of ‘asphalt’ from the list of permitted waste types during the proceedings, I consider that there is no need to retain this waste type in Condition L2.1 of the 2024 Licence.

75. In regard to ‘office and packaging waste’ and ‘waste tyres’, these waste types are only able to be received at the premises for the purposes of ‘waste disposal (application to land)’ under the 2021 Licence.

76. Given my findings below in regard to removing ‘waste disposal (application to land)’ from the licence unless and until the landfill cell is completed and approved by the EPA, I consider that it is appropriate to also remove ‘office and packaging waste’ and ‘waste tyres’ from the list of waste types in Condition L2.1 of the 2024 Licence.

77. I also accept Mr Vlasoff’s evidence in regard to the fire risks associated with the continuing storage of waste tyres on the premises where he states that (see Affidavit 24 September 2024):

“If waste tyres catch alight, they are extremely difficult to put out and release chemicals into the air in the form of smoke. There will also be an increased risk of fire at the Premises due the ability to accept and store waste tyres under the 2021 Licence.”

78. As described at [55] above, the Development Consent does not clearly articulate what materials can be imported onto the premises for ‘stockpiling, recycling and resale of materials’.

79. Consequently, I am not in a position to accept the EPA’s submission that these types of waste should not be permitted to be imported onto the premises based on the conditions of the Development Consent.

Waste disposal (application to land)

80. Overall, I agree with the EPA’s submission that while landfilling may be allowed under the Development Consent, the removal of ‘waste disposal (application to land’ from the 2024 Licence as an authorised activity is warranted unless and until the construction of the landfill cell has been completed and the relevant documentation assessed and approved by the EPA, including the Construction Quality Assurance Report, which was also a requirement under the 2021 Licence.

81. In particular, I agree that it would be premature to allow receipt of waste for the purpose of landfilling as the EPA would have no way of determining whether the landfill cell under construction is appropriate to receive waste and what type waste should be permitted to be disposed of within the cell, having regard to the objectives and considerations under s 6 of the POEA Act and s 45(c) of the POEO Act which deal with preventing pollution and harm to the environment. I also agree with the EPA in regard to the issue about where and how waste intended for landfill would be stored in the interim and the risk this may pose to the environment.

82. In saying this, I recognise that the Applicant has been able to receive waste for the purposes of landfilling for at least 15 years under the Licence for the premises. However, this waste was primarily used for restoration and landfilling purposes associated with the previous mining activities on the site which has now been substantially completed.

83. At present, there is no facility for landfilling which is evidenced by the various stockpiles at the premises where residual waste is being ‘stored’ prior to landfilling, including Stockpile 26 which is now a very large stockpile (approximately 40,000 tonnes) and which is actively being added to over time.

84. The EPA also states in the 2024 Licence Summary that it will reinstate the ability to undertake landfilling on the premises as follows (see paragraph O of the 2024 Licence Summary):

The EPA has removed all conditions from the licence that relate to waste disposal (application to land) due to the premises currently not having the ability to undertake landfilling. The EPA notes the cell has been under construction for 14 years at the premises. The EPA will re-instate these conditions onto the licence once the landfill cell has been completed and the EPA has provided written approval to the licensee that landfill in the new cell can occur. The conditions that will be re-instated on the licence include:

1. Adding scheduled activity – Waste disposal (application to land.

2. Adding the following waste to the waste table in L2.1: Office and package waste, building and demolition waste, asphalt waste and waste tyres. All added waste types will be permitted for waste disposal (application to land).

1. Adding previous condition O4.1, O 4.2 and O4.3 relating to cover material and compaction of waste.

85. While I recognise that the statement from the EPA in the 2024 Licence Variation Summary is not binding as it does not form part of the licence itself, I consider that it is appropriate to align the current licence with what is physically able to be undertaken on the premises. In my view, this provides greater regulatory certainty in the interim, particularly as the landfill cell has now been ‘under construction’ for many years.

86. I also recognise the Applicant’s concerns about financing the completion of the landfill cell. However, by retaining the ability to continue to receive the primary waste types under the 2024 Licence as permitted under the 2021 Licence (‘building and demolition waste’), together with the ability to undertake ‘waste storage’ (albeit limited) on the premises under Condition A1, the business should continue to be able to operate in a broadly similar manner than is currently the case.

87. Furthermore, while there is additional work to be undertaken including the installation of an appropriate liner for the landfill cell, the major excavation work for the cell has already been substantially completed.

88. Consequently, given the above, I do not consider that the Applicant’s concerns about financing the completion of the cell should be given significant weight in these proceedings.

Limits on waste storage

89. To regulate the amount of waste able to be stored on the premises (as opposed to disposed of by landfilling), Condition L2.2 of the 2024 Licence Variation states that, “the authorised amount of waste permitted on the premises at any one time cannot exceed 26,000 tonnes at any one time”.

90. I accept that a condition seeking to improve and quantify the amount of waste stored on the premises is appropriate and would assist in addressing the other environmental risks identified by the EPA, in accordance with s 45(c) and 45(d) of the POEO Act.

91. However, the written and oral evidence of both Mr Vlasoff and the Applicant indicates that the existing stockpiles on the premise already substantially exceeds 26,000 tonnes, especially Stockpile 26 which contains approximately 40,000 tonnes of residual waste material.

92. To address this matter, the EPA has proposed conditions which allow a staged imposition of the waste storage limit for the premises which takes into account the volume of waste already stored in Stockpile 26. The final permitted limit is based on the standard calculation that the EPA used for waste facilities and also takes into account the waste to be placed in the landfill cell on the premises assuming this will be completed and approved for use.

93. The proposed conditions are as follows:

1. The authorised amount of waste permitted on the premises at any one time cannot exceed:

1. After 30 March 2025: 50,000 tonnes

2. After 30 June 2025: 26,000 tonnes

3. After 30 September 2025: 23,000 tonnes.

2. The authorised amount in condition L2.2 does not include waste lawfully disposed of in Cell A.

94. The Applicant also proposed a condition to address the waste in Stockpile 26 as follows:

The authorised amount of waste (excluding the amount of waste comprising Stockpile 26 as identified in the 21 June 2024 Site Survey Plan of Greenwood Landfill and any waste applied to Cell A) permitted on the premises cannot exceed 26,000 tonnes at any one time.

95. However, I prefer the approach taken by the EPA in regard to addressing waste storage limits at the premises as it provides greater certainty in regard to timing and takes into account the possibility, albeit unlikely, that the landfill cell may not proceed. I also consider that the framing of this condition also provides an incentive to accelerate the completion of the landfill cell and the associated documentation which have been delayed by many years.

96. Nonetheless, in the final licence conditions in Annexure A, I have adjusted the timeframes to provide an additional 3 months for the Applicant to comply. This takes into account the timeframes canvassed by the parties during the proceedings for the administrative steps that must be completed prior to placing waste in the landfill cell, including the consideration of an exemption from the waste levy by the EPA for the importation of clay material for lining the cell.

Inconsistency between the licence and the licence summary

97. The Applicant’s contention alleges uncertainty arises because the Licence Variation Summary described an amendment to Condition A1 (describing what the licence authorises) which was not made on the 2024 Licence.

98. In regard to this contention, while I accept there was a discrepancy between the Licence Variation Summary and the 2024 Licence which may result in some uncertainty, I agree with the EPA’s arguments on this matter.

99. Firstly, that the terms of the 2024 Licence (including that of Condition A1) are those set out in the body of the Licence itself and not the Licence Variation Summary. This is because the Licence Variation Summary does not form part of the Notice given to the Applicant pursuant to s 58(5) of the POEO Act. In other words, the Licence Variation Summary is an aid to the understanding the Variation Notice and not the Licence itself.

100. Secondly, given the above, I accept the EPA’s submission that the issue of the Licence Variation Summary is not an exercise by the EPA of its licencing functions and is therefore not amenable to appeal under s 287 of the POEO Act, which is the basis for these proceedings.

Consideration of statutory matters

Jurisdictional matters

101. Pursuant to s 50(2) of the POEO Act, I consider that the 2024 Licence is within the terms of the Development Consent for the premises as described in [49] above. Therefore, I am satisfied that the proposed licence variation in the terms set out in Annexure A does not infringe s 50(2) of the POEO Act.

102. Pursuant to s 58(6) of the POEO Act, there is no evidence in the proceedings that the 2024 Licence Variation would authorise a significant increase in the environmental impact of the activities authorised or controlled by the Applicant’s Licence. Rather, the contentions relate to whether or not the Court should further restrict the activities on the premises to address concerns about the environmental impacts of the existing activities on the premises.

103. Furthermore, I note the evidence of Mr Vlasoff where he states that he is “not aware of any Environmental Impact Statements or similar documents having been prepared in relation to the Resource Recovery and Waste Storage activities being carried out on the Premises” (see paragraph 20 of Affidavit dated 24 September 2024). Accordingly, there is no need for further public submissions to be invited or considered in my assessment of the merits of the licence variation.

104. Having considered both limbs of s 58(6) there is no basis to prevent the approval of the proposed licence variation in the terms set out in Annexure A.

Section 45

105. Pursuant to s 45(a) of the POEO Act, I must consider ‘protection of the environment policies’ (which are policies made under Ch 2 of the POEO Act) in regard to exercising the regulatory authority’s licensing function, to the extent they are relevant.

106. While there was limited evidence in the proceedings regarding ‘protection of the environment policies’, the Applicant refers to current operations recycling of 95 percent of the waste that is imported onto the premises in accordance with the ‘EPA’s Waste Minimisation Strategy’ (see Mr Scott Greenwood Affidavit at [7] and [8], dated 28 October 2024).

107. It is not entirely clear what policy this statement refers to. However, I consider that the proposed licence variation in the terms set out in Annexure A is consistent with relevant ‘protection of the environment policies’. In particular, I refer to the 2030 target in the NSW Waste and Sustainable Materials Strategy 2041 of an 80 percent recovery rate from all waste streams (see page 6 of the Strategy). This is discussed further below at [117].

108. Pursuant to s 45(b) of the POEO Act, I am satisfied that the proposed licence variation in the terms set out in Annexure A is consistent with the objectives of the EPA referred to in s 6 of the POEA Act.

109. In particular, I consider that the proposed licence (incorporating the environmental risk management conditions and limits proposed in Annexure A) are consistent with the objective at s 6(1)(a), as the licensed activity will maintain ecologically sustainable development by continuing to permit the re-use and recovery of resources and diverting these materials from landfill.

110. Similarly, the licensed activity (incorporating the environmental risk management conditions and limits proposed in Annexure A) is consistent with the objective in 6(1)(b) “to reduce risks to human health and prevent the degradation of the environment” by means such as “promoting pollution prevention” and “encouraging the reduction of the use of materials, encouraging the re-use and recycling of materials and encouraging material recovery”.

111. Pursuant to ss 45(c) and 45(d) of the POEO Act, I have given detailed consideration to the “pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment” and “practical measures that could be taken – (i) to prevent, control, abate or mitigate that pollution, and (ii) to protect the environment from harm as a result of that pollution”.

112. In this regard, I note that the conditions proposed in the licence to manage environmental risks on the premises have been retained, including in regard to any risks associated with continuing to permit ‘building and demolition’ waste for resource recovery and waste storage purposes, and landfilling is not permitted unless and until the risks associated with that activity have been fully considered by the EPA.

113. Pursuant to s 45(e) of the POEO Act, I am not aware of any green offset scheme, green offset works, tradeable emissions scheme or other scheme relevant to these proceedings and the parties have not provided any evidence in this regard.

114. Pursuant to s 45(f) of the POEO Act , and based on the evidence, I consider that Mr Greenwood to be a fit an proper person (having regard to s 83 of the POEO Act), and there is no contention to the contrary raised by the EPA.

115. Pursuant to s 45(f1) of the POEO Act, the EPA has raised concerns about leachate management and water pollution. However, as discussed above, I consider that continuing to accept the waste types that are currently allowed will not materially increase the existing onsite and offsite environmental risks associated with the activities on the premises, but rather that these risks can and should be managed through implementation and enforcement of the licence conditions proposed in Annexure A.

116. In my view, the matters for consideration in ss 45(g), 45(h), 45(i) and 45(j) of the POEO Act are not relevant or applicable to the determination of the licence variation the subject of these proceedings, noting there is no Environmental Impact Statement, Statement of Environmental Effects or Species Impact Statement prepared for the operations at the ‘Greenwood Landfill’.

117. Similarly, ss 45(l) and 45(m) are not relevant or applicable as the EPA is the appropriate regulatory authority and did not seek any public submissions on the licence variation. I am also not aware of any public submission made under the EPA Act received by the EPA as the appropriate regulatory authority.

118. Pursuant to s 45(k) of the POEO Act, the relevant waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001 is the Department of Planning, Industry and Environment publication titled “NSW Waste and Sustainable Materials Strategy 2041”. The strategy underlines the desirability of granting a licence variation that will promote increased recovery and re-use of materials (see page 4) and refers to the circular economy (see page 9), including the need to reduce the volumes of materials going to waste at landfill sites. Based on the evidence in these proceedings, I am satisfied that the proposed licence variation set out in Annexure A is consistent with the NSW Waste and Sustainable Materials Strategy 2041.

Objectives of the POEO Act

119. Section 45 of the POEO Act does not mandate that the Court consider the objects of the Act in s 3. However, where relevant they ought to be considered.

120. In this regard, I note that the objectives in s 3(a) and 3(d)(iii) are essentially the same as s 6(1)(a) and 6(1)(b) of the POEA Act which are addressed at [110] and [111] above. Similarly, the objective in s 3(g) “to assist in achieving the objectives of the Waste Avoidance and Resource Recovery Act 2001” is addressed at [117] above.

121. Based on the above, I am satisfied that the proposed licence variation, as set out in Annexure A, is consistent with the objectives of the POEO Act.

Conclusion

122. For the reasons set out above, and having considered all the evidence in these proceedings, I find that:

1. Condition L2.1 of the 2024 Licence should be amended to permit the receipt of ‘building and demolition waste’ for resource recovery and waste storage;

2. Condition L2.1 of the 2024 Licence should prevent receipt of ‘asphalt’, ‘office and packaging waste’ and ‘waste tyres’ for any purpose;

3. ‘Waste disposal (application to land)’ should be removed from the list of permitted scheduled activities in Condition A1 of the 2024 Licence unless and until the Construction Quality Assurance Report has been received and reviewed by the EPA; and

4. Condition L2.2 in the 2024 Licence which regulate the staged removal of Stockpile 26 should be amended as follows to allow additional time for the Applicant to comply:

L2.2   The authorised amount of waste permitted on the premises at any one time cannot exceed:

a) After 30 June 2025: 50,000 tonnes

b) After 30 September 2025: 26,000 tonnes

c) After 30 December 2025: 23,000 tonnes.

L2.3 The authorised amount in condition L2.2 does not include waste lawfully disposed of in Cell A.

123. With the amendments set out above, I am satisfied that the granting the variation is consistent with and will promote the relevant statutory and policy objectives that are mandatory considerations when determining the licence variation, and will not create an unacceptable risk of material environmental harm, having regard to the implementation and enforcement of the conditions in the licence.

Orders

124. The Court orders:

1. The appeal is upheld in part.

2. The variation notice no. 1636139 of EPL 4669 for the ‘Greenwood Landfill’ is granted consent in accordance with the terms in Annexure A.

3. All the Exhibits are returned except Exhibits B and 2.

M Young

Acting Commissioner of the Court 

Annexure A

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Amendments

31 January 2025 - Body orders did not match the cover page orders - have corrected this issue.

Decision last updated: 31 January 2025