The Next Generation (NSW) Pty Ltd v State of New South Wales

The appeal concerned a development application lodged by The Next Generation (NSW) Pty Ltd for an energy from waste facility, which had been refused. The State of New South Wales contended that the application could not be granted due to provisions within the Protection of the Environment Operations (General) Regulation 2022 (NSW) (the "Thermal Energy from Waste Regulation"). The appellant initiated proceedings seeking a declaration that a specific regulation, namely regulation 143, was beyond the scope of the regulation-making power conferred by section 323 of the Protection of the Environment Operations Act 1997 (NSW) (the "POEO Act"). The appeal was heard by Meagher, Gleeson, and Beech-Jones JJA.

The court was required to determine whether regulation 143 of the Thermal Energy from Waste Regulation, which prohibits the thermal treatment of waste except at specified locations, constituted a regulation "with respect to" matters permitted by the POEO Act, specifically the prohibition of "processing... of... waste" as referenced in Schedule 2, clause 5(6) of the POEO Act. Further, the court had to consider whether regulation 143 was inconsistent with the POEO Act, including its licensing scheme under Chapter 3, and whether regulation 145, which invalidates licences purporting to authorise work prohibited by regulation 143, was inconsistent with the Environment Planning and Assessment Act 1979 (NSW) ("EPA Act"), particularly in relation to State significant development. The court also considered whether section 32 of the Interpretation Act 1987 (NSW) allowed for the general words in regulation 145 to be read down to avoid such inconsistency.

The court reasoned that regulation 143 was indeed a regulation "with respect to" the prohibition of waste processing as contemplated by the POEO Act and found no inconsistency with the Act's licensing provisions, noting that a licence under Chapter 3 does not grant authority beyond avoiding prohibitions within that Chapter, and that the POEO Act does not solely regulate Schedule 1 activities through licence conditions. Regarding regulation 145, the court determined that its general words could be read down under section 32 of the Interpretation Act 1987 (NSW) to avoid inconsistency with the EPA Act. Consequently, the court found no inconsistency between regulation 145 and the EPA Act. The court declined to grant declaratory relief concerning the operation of regulation 145 in light of a subsequently enacted provision, Division 28 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), as its construction and applicability were not in issue before the primary judge but were reasonably expected to be litigated in separate proceedings.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.